Dr Vito Zepinic v Worrells Solvency & Forensic Accountants

Supreme Court of NSW|2022-08-10|Before: Button J, Pembroke J, Slattery J

Introduction

Dr Vito Zepinic (the applicant) is currently subject to orders made in accordance with the Vexatious Proceedings Act 2008 (NSW) ('the Act') by Pembroke J on 25 May 2017 in Zepinic v Chateau Constructions (Aust) Limited; Chateau Constructions (Aust) Limited v Zepinic [2017] NSWSC 582. The applicant sought leave to appeal that judgment to the New South Wales Court of Appeal: see Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317. Although that Court found that the approach of the primary judge was in some ways lacking, the appeal was ultimately dismissed on the basis that there could be no doubt that the order declaring him to be a person "frequently" instituting or conducting vexatious proceedings was justified.
By way of a summons filed on 25 March 2022, the applicant has sought two orders. The first is leave to institute proceedings against Worrells Solvency & Forensic Accountants (Worrells) in the Supreme Court of New South Wales, as I understand it pursuant to s 14 of the Act.
The second is that a "vexatious proceedings order" made against the applicant, his wife, and his daughter be set aside, as I understand it pursuant to s 9 of the Act.
For the reasons that follow, I decline to make either order, and dismiss the summons.

Statutory Framework

Turning first to proposed order 1, an application for leave to institute proceedings by a person subject to an order pursuant to the Act must comply with the framework found in s 14 of the Act.
It is as follows: 14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or … (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c). (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.
Section 15(1) of the Act mandates that an application for leave under s 14 is to be dismissed if: the Court considers the "affidavit required under s 14(3) does not substantially comply" with the subsection; or the proceedings are vexatious; or if there is "no prima facie ground" for the proceedings.
"Proceedings" are inclusively defined in s 4 of the Act as follows: 4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
"Institute proceedings" is inclusively defined in s 5 of the Act to mean: 5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal.
Turning now to the provisions of the Act most relevant to proposed order 2, the power of an authorised court to set aside or vary a vexatious proceedings order against a particular person is to be found in s 9 of the Act. It is as follows: 9 Order may be varied or set aside (1) An authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made. (2) An authorised court may make the order of its own motion or on the application of: (a) the person subject to the vexatious proceedings order, or (b) a person referred to in section 8 (4). (3) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court. (4) An authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful.

Determination

It makes sense, I believe, to determine the appropriateness of proposed order 2 first, for the simple reason that if, pursuant to s 9, I set aside the order made by Pembroke J on 25 May 2017, then there would be no need for the applicant to be granted leave pursuant to s 14 to institute proceedings against Worrells, with the result that proposed order 2 would not require consideration.
In my opinion, there is no basis upon which I would set aside the orders made against the applicant and the members of his family, for the following reasons.
First, the trenchant criticisms made by the applicant of the judgment of Pembroke J have been superseded, chronologically and hierarchically, by the judgment of the Court of Appeal. It is noteworthy that the applicant fails to engage with that judgment in his written materials, despite the fact that it is in every sense the operative one.
Secondly, the whole context of the way in which the applicant has conducted his multifarious litigation about this straightforward building dispute, which arose approaching two decades ago, which culminated in the sale by court order of the real property approaching eight years ago, and which is set out in detail in that judgment, provides no support for the proposition that the current order should be removed.
Thirdly, the latest effort to impugn yet again the enforcement of the debt owed to Chateau (by way of the caveat, the equitable charge, the appointment of the trustee, and the sale of the real property) by way of the attempt, encapsulated in proposed order 1, to sue Worrells, the employer of the trustee, amply corroborates the evaluation that the applicant remains a vexatious litigant. It is particularly significant that the applicant has previously attempted to sue the trustee personally: see Application of Vito Zepinic [2020] NSWSC 269; Zepinic v Malanos [2020] NSWCA 293. That fact argues decisively, in my opinion, against him being granted leave to commence litigation against the employer of that previous defendant.
On the basis of the explanation by the applicant as to why it is he wishes to sue Worrells, proposed order 1 is sought as an attempt to re-agitate the litigation upon the basis of which the vexatious proceedings order impugned by proposed order 2 was made. The dispute has been fully litigated in (amongst other forums) this Court at first instance, the New South Wales Court of Appeal, and the High Court of Australia. All previous proceedings have been largely, if not entirely, dismissed, and decided against the applicant.
In short, far from being satisfied that the order made against the applicant and members of his family should be removed, I am affirmatively satisfied that it should remain. For that reason, proposed order 2 in the summons is not made by me.
Turning now to proposed order 1, importantly, for the purposes of the application before me, the applicant in the affidavit filed 25 March 2022 was required under s 14(3) of the Act to list all preceding occasions when he had sought leave to institute proceedings (s 14(3)(a)); to list all other proceedings he had instituted in Australian courts (s 14(3)(b)); and to list the material facts relating to the application (s 14(3)(c)).
The applicant's affidavit is lengthy and, to some degree, complies with ss 14(3)(a) and (b) with critical and sporadic references to some of the previous proceedings involving the Turramurra property.
However, it ultimately falls foul of ss 14(3)(a) and (b) by failing to list comprehensively all occasions when he has previously sought leave under this section, along with other proceedings instituted before this Court or any other. So much can readily be discerned by comparing the affidavit of the applicant with the judgment of the Court of Appeal, even though I believe that even the latter is now incomplete by way of the simple effluxion of time since its delivery.
Furthermore, the applicant's affidavit cannot be said to disclose all material facts known to the applicant about the application. A short comparison between the previous decisions of this Court referred to in [1] and [13], and the affidavit of 25 March 2022, amply demonstrates that fact.
On those bases, the applicant cannot be said to have complied substantially with s 14(3), and the dismissal of the application for leave is mandated under s 15(1)(a) of the Act.
Separately, and as against the possibility that I am wrong in that analysis, there is a further basis upon which leave to institute proceedings against Worrells should be refused.
The summons filed on 2 March 2022 and the affidavit filed on 25 March 2022 reveal an attempt to relitigate matters already determined in this Court (see [1]). They reassert the correctness of matters which have already been decided adversely to the applicant. They are an obvious attempt to impugn the conduct of the trustee, through his employer, in selling the real property in order to satisfy the equitable charge, itself founded upon the judgment debt determined in the CTTT. But all of that was determined repeatedly years ago, by way of exhaustive litigation, adversely to the applicant.
For that reason, I consider that the proceedings proposed to be instituted against Worrells constitute an abuse of process and are, consequently, vexatious. As such, leave to institute the proceedings must also be refused pursuant to s 15(1)(b) of the Act.

Conclusion and order

In summary, then, I am not satisfied that proposed order 2 should be made. Indeed, I am affirmatively satisfied that it should not be made. And an aspect of my satisfaction of that proposition is the application for proposed order 1.
Nor am I satisfied that proposed order 1 should be made, not least because I consider that the proposed proceedings against Worrells are an inapposite attempt to relitigate matters that were authoritatively determined years ago.
I therefore decline to make both proposed orders, and dismiss the summons. ------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2022

Where the Vexatious Proceedings Act 2008(NSW)

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