JAMBRECINA v PYRAMID BUILDING SOCIETY & ANOR; PYRAMID BUILDING SOCIETY & ANOR v JAMBRECINA

Supreme Court of NSW|2002-10-28|Before: Levine J, Simpson J

CITATION : JAMBRECINA v PYRAMID BUILDING SOCIETY & ANOR; PYRAMID BUILDING SOCIETY & ANOR v JAMBRECINA [2002] NSWSC 1076 FILE NUMBER(S) : SC 20019 OF 2002; 10820 OF 2002 HEARING DATE(S) : 28 October 2002 JUDGMENT DATE : 15 November 2002

DRAGO JAMBRECINA (Plaintiff) v PYRAMID BUILDING SOCIETY LTD (IN LIQ) (First Defendant) FARROW MORTGAGE SERVICES PTY LTD (IN LIQ) (Second Defendant) PARTIES : PYRAMID BUILDING SOCIETY LTD (IN LIQ) (First Plaintiff) FARROW MORTGAGE SERVICES PTY LTD (IN LIQ) (Second Plaintiff) v DRAGO JAMBRECINA (Defendant) JUDGMENT OF : Levine J

Plaintiff - in person COUNSEL : S White (Defendant) Plaintiff - in person SOLICITORS : S White (Defendant) LEGISLATION CITED : Supreme Court Act 1970 s84(2) Attorney-General (NSW) v Solomon (1987) 8 NSWLR 667 Attorney-General v Wentworth (1988) 14 NSWLR 481 CASES CITED : Jones v Skyring (1992) 109 ALR 303; 66 ALJR 810 Ramsay v Skyring (1999) 164 ALR 378 Valassis v M D Nikolaidis & Co, Simpson J, [2000] NSWSC 388 Valassis v South Sydney Council (1996) 92 LGRA 275 DECISION : See paragraph 24

11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PYRAMID BUILDING SOCIETY LTD (IN LIQ) (First Defendant)

FARROW MORTGAGE SERVICES PTY LTD (IN LIQ) (Second Defendant)

PYRAMID BUILDING SOCIETY LTD (IN LIQ) (First Plaintiff)

FARROW MORTGAGE SERVICES PTY LTD (IN LIQ) (Second Plaintiff)

JUDGMENT 1 In matter number 20019 of 2002 the plaintiff, Mr Drago Jambrecina, filed a Statement of Claim on 21 January. On 25 March he filed a Notice of Motion seeking leave to sue the defendants in liquidation. On 28 October leave was granted to the plaintiff (with the consent of the defendants) to file an Amended Statement of Claim. Between January and October 2002 the matter has been before the Court on several occasions and the delay has principally been accounted for by the reference of the plaintiff who appears in person to the Bar Association for pro bono legal advice. In these proceedings the defendants, by Notice of Motion filed on 25 March, have sought to have the proceedings stayed or dismissed and the Amended Statement of Claim struck out. 2 In proceedings 10820 of 2002 the plaintiffs (the defendants in the other proceedings) move the Court pursuant to s84(2) of the Supreme Court Act to have the defendant, Mr Jambrecina, declared a vexatious litigant within the meaning of that section. 3 As part of the evidence in support of Pyramid's motion and summons is a document marked exhibit B which is a communication from Mr Hugh Marshall of counsel to the Chief Executive Officer of this Court consequent upon the pro bono referral. The communication does not disclose the substance of the advice which was given to Mr Jambrecina by Mr Marshall and also Mr Justin Young of counsel. However, it is clear that Mr Jambrecina has chosen to continue to appear in person, notwithstanding, one can readily infer, the general nature of advice he must have received. 4 The "history" of this litigation is founded in transactions dated 17 September 1987 when Mr and Mrs Jambrecina, as co-mortgagors, entered into a mortgage with an entity known as Combined Mortgage Services Pty Ltd, now known as Farrow Mortgage Services Pty Ltd, in relation to seven properties in Queanbeyan. This, as the starting point is quite clear from the evidence tendered by Pyramid in the form of an affidavit in support of the summons, sworn by Brigitte Sandra Markovic on 27 March 2002. Exhibit BSM1 to that affidavit is a folder of documents that readily disclose the history of these proceedings. 5 I permitted Mr Jambrecina to rely upon a document described as an affidavit but which is in fact not sworn by him, which bears a date of 29 April 2002, to which he annexes a body of material a lot of which is in common with that contained in BSM1. That material was marked as exhibit 1. Exhibit 2 is the transcript of proceedings which took place before Master Malpass on 13 July 1999, to which tangential reference is made in the material tendered by Pyramid. This material had to be admitted by me in the light of complaints made orally by Mr Jambrecina as to the alleged impropriety of conduct in those proceedings by counsel for Pyramid, Mr S T White, which allegations I hasten to state forthwith are without foundation, and at the very least represent a complete misconstruction on the part of Mr Jambrecina of the role of Mr White and the submissions he was making to the learned Master. 6 To facilitate the resolution of both proceedings the legal representatives of Pyramid have been good enough to construct, based upon the material in BSM1, a chronology. That chronology is appended to these reasons and marked "A"

Pyramid's Motion in relation to Amended Statement of Claim 7 On 17 December 1992 orders were made by consent that Pyramid obtain possession of the properties, having instituted proceedings therefor in that year. That judgment was entered on 2 March 1993. It is to be observed that the current Amended Statement of Claim represents the fourth occasion in which Mr Jambrecina has initiated proceedings of this kind after the entry of judgment pursuant to consent orders in the original possession action. By reference to the chronology it can be seen that the first of those proceedings (23/7/1996) was instituted in the Supreme Court of the ACT. Thereafter the proceedings have been in this Court. 8 The Amended Statement of Claim is properly exposed as one, on any view, which discloses no reasonable cause of action (SCR Pt 13 r 5(a)) and constitutes an abuse of process (r 5(c)) and is amenable to being struck out thereby and the proceedings dismissed (see SCR Pt 15 r 26(1)(a), (b) and (c)). 9 The pleading, which is founded, so it clearly appears, in the same properties that have generated litigation hitherto, contrary to what underpins the relationship between the parties years ago, seeks to artificially advance some limitation period by reference to a deed. Clause 20 of the mortgage, clearly gave the mortgagee a discretion to accept partial discharge: this is simply ignored by the plaintiff. The defendant is embarrassed, to say the least, by allegations that raise both express and implied terms, without a hint as the source of the express term, let alone as to what facts and matters and circumstances give rise to any implication. 10 Allegations as to the application of the proceeds of partial discharge otherwise than to reduce arrears of interest are made. Nothing could support that. Nothing derogates from the right of the mortgagee to apply such finds as against the total outstanding balance. 11 Allegations which could be understood as ones of breach of duty and misrepresentation are time-barred. 12 Allegations as to the mortgagee unreasonably delaying sales is supported by no relevant particulars that provides any basis for the defendant understanding the nature of the allegation made against it. 13 The same rules apply to a litigant in person in terms of compliance with requirements as to pleading as to any other litigant. Nothing Mr Jambrecina was able to say in oral submissions derogates from the force of the attack made upon the Amended Statement of Claim by the defendant. It is a hopeless pleading and as far as it can be understood at all, points to an outcome that is hopeless in terms of what the plaintiff might be seeking to achieve. 14 Accordingly, I strike out the Amended Statement of Claim and dismiss the proceedings (20019 of 2002).

S84(2) - vexatious litigant 15 S84(2) of the Supreme Court Act 1970 is in the following terms: 84(2) Where any person (in this subsection called the "vexatious litigant") habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the "person aggrieved"), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court. 16 It can be observed that the person against whom the order is sought must be shown to have "habitually and persistently" instituted the relevant proceedings without reasonable grounds (see Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 109 ALR 303; 66 ALJR 810). 17 For the purposes of this section: "relevant" proceedings are confined to those in this Court or inferior State courts, however, similar proceedings in other jurisdictions may bear upon the characterisation of the proceedings as "vexatious": Ramsay v Skyring (1999) 164 ALR 378 at 380 per Sackville J. It is, of course, also essential that the substance of the proceedings must be the same. As to this latter requirement there can be no doubt in this case. The examination of all the proceedings instituted (including those in the Supreme Court of the ACT) points to relief in some way being sought by the defendant in relation to the mortgages the default in which led to the consent orders for possession on 1992. 18 It seems, on the authorities, that mere frequency of the bringing of proceedings is not enough (eg Valassis v South Sydney Council (1996) 92 LGRA 275; Attorney-General v Wentworth, above, at 492) 19 It also appears that the absence of reasonable grounds for the bringing of proceedings is not a prerequisite for the making of an order under s84(2) (Attorney-General (NSW) v Solomon (1987) 8 NSWLR 667 at 673). 20 Whilst I am in no position to find, for example, that the proceedings have been bought by the defendant to annoy or embarrass the plaintiffs (though no doubt they have had that effect) I am in a position in relation to steps taken by the defendant in the Federal Court of Australia (Bankruptcy Division) in March 2001 and February 2002 which can be characterised as seeking to add frustration to the litigation's course. The bankruptcy proceedings were an inevitable consequence of the plaintiffs having succeeded generally and persistently against this defendant. Whilst the steps taken by the defendant in the Federal Court's Bankruptcy Division cannot in any way be determinative of the plaintiffs' present application, when viewed in the context of the history of the actions they provide evidence that goes to a persistence and a collateral purpose in relation to the proceedings in this Court, namely to forestall the determination of the proceedings in the Bankruptcy Jurisdiction, and indeed, as was submitted by the plaintiffs, to defeat the Creditor's Petition. Thus, I am prepared to hold that this defendant has gone beyond but "mere frequency"; he has persisted in proceedings of the same substance and with a purpose alien thereto, namely, to frustrate the plaintiff's proceedings in the Bankruptcy Jurisdiction, which proceedings themselves flow from unsuccessful proceedings by this defendant against the plaintiffs (the pursuit of orders for costs). Further, by reason of the hopelessness of the action the defendant seeks to bring as a plaintiff to which I have referred in my observations in relation to the Amended Statement of Claim, the orders that the plaintiffs seek must, in my view, inevitably be made. 21 As Sackville J remarked (at 389) in Ramsay v Skyring, above, a statutory provision of this kind must be applied having regard to a fundamental principle of our legal system, namely, that every person has right of access to a court to seek remedies in consequence of an alleged infringement of rights. It is an "extreme" remedy. It may be "extreme" but it is not "general". The Court is constrained by the terms of s84(2) seriously to consider the matters to which it must attend. S84(1) is the more general power but it can only be exercised upon the Court's jurisdiction having been enlivened by an application by the Attorney-General. 22 An application of the kind with which I am concerned gives rise to a substantial tension. A tension between the right of a litigant to have access to justice and the right of the justice system itself to operate effectively in the community in relation to each and every other litigant, for example, in the Supreme Court. Resources are as strained as they are precious and the Court must jealously guard its authority to deal with the rights of parties in circumstances where the rights of one have (consensually) been determined in its favour but are sought to be challenged, in the same way, again and again, without reasonable cause, by the initiation of proceedings by the other (which includes appeals; see Sackville J in Ramsay v Skyring at 391 paragraph [59]). 23 The persistence of the defendant has, of course, bought it about that proceedings (by way of Notice of Motion to dismiss) have been imposed upon the plaintiffs, even though with success at the hands of the plaintiffs as the moving party. Such process by the plaintiffs have been provoked by the persistence in a hopeless cause by the defendant. Mr Jambrecina, doing the best he could, as I appreciate, and in an acceptable and unremarkable way, merely informed the Court to the effect that "the more time goes on the more he learns". When one considers the merits of the actions purported to be pleaded in the Amended Statement of Claim by themselves, and in the context of the history set out in the chronology, it is quite clear that "time going on" must come to an end. As I have remarked, the remedy sought by the plaintiffs is an extreme one and it is by no means common (see for example, Valassis v M D Nikolaidis & Co, Simpson J, [2000] NSWSC 388). 24 Accordingly, I make the following orders: 1. In matter number 20019 of 2002 I strike out the Amended Statement of Claim, dismiss the Notice of Motion filed 13 March2002 and dismiss the proceedings; and

I order the plaintiff to pay the defendants' costs. 3. In matter number 10820 of 2002 I declare that the defendant is a vexatious litigant within the meaning of s84(2) of the Supreme Court Act 1970; and 4. I order that pursuant to s84(2) of the Supreme Court Act 1970 that the defendant shall not, without leave of the Court, institute any legal proceedings against the first or second plaintiff in any New South Wales court; and 5. I order, pursuant to s84(2) of the Supreme Court Act 1970, that legal proceedings instituted by the defendant against the plaintiffs in any New South Wales court prior to the making of orders 1 and 2 shall not be continued by the defendant without leave of the Court; and 6. The defendant is to pay the plaintiffs' costs of the plaintiffs' summons.

A Proceedings No. 20019 of 2002 Proceedings No. 10820 of 2002

PYRAMID BUILDING SOCIETY LIMITED (IN LIQUIDATION) ("Pyramid") AND FARROW MORTGAGE SERVICES PTY LIMITED (IN LIQUIDATION) ("Farrow") -v- JAMBRECINA

References to tabs in this Chronology are references to corresponding tab numbers in the exhibit marked "BSM1" to the affidavit of Brigitte Sandra Markovic sworn on 22 March 2002. Date Event Tab No. Mr & Mrs Jambrecina as co-mortgagors enter into a Mortgage with Combined Mortgage Services Pty Ltd, now known as Farrow Mortgage Services Pty Limited, in relation to 7 properties known as: 49 Derrima Rd, Queanbeyan, 86 Atkinson St, Queanbeyan, 35 Booth St, Queanbeyan, 17 Sept 1987 16 Pindari Cres, Queanbeyan, 1 11 Yarrow St, Queanbeyan, 5 Yarrow St, Queanbeyan, 79 Crawford St, Queanbeyan (the "7 Properties"). 28 Jan 1992 Pyramid commences proceedings 10647/92 by Summons in the Supreme Court of NSW, Sydney Registry, Common Law Division (the "1992 Proceedings"). 2 In support of the proceedings certain affidavits were filed on behalf of Pyramid: 3 (i) Affidavit of Robert John Edge sworn 15.1.92. (ii) Affidavit of James Downey sworn 4.5.92. 4 (iii) Affidavit of Robert John Edge sworn 1.1.92. 5 (iv) Affidavit of Amanda Greenslade sworn 30.6.92. 6 In reply the following affidavits were filed on behalf of Jambrecina. 7 (v) Affidavit of Drago Jambrecina sworn 30.3.92. (vi) Affidavit of David Antony Ward Walters sworn 4.7.92. 8 21 Aug 1992 Sequestration Order made in proceedings AB220 of 1992 in the Federal Court of Australia, Bankruptcy District of the ACT between Westpac Savings Bank Ltd (creditor) and Jambrecina (debtor). 9 Short Minutes of Order filed in the 1992 Proceedings by consent granting Pyramid possession of the land and premises at: 86 Aitkinson Street, Queanbeyan; 17 Dec 1992 35 Booth Street, Queanbeyan; 11 11 Yarrow Street, Queanbeyan; and 5 Yarrow Street, Queanbeyan. 2 Mar 1993 Judgment in the terms of the Consent Orders entered on 17.12.92. 12 23 Dec 1996 Jambrecina commenced proceedings SC1053 /1996 in the Supreme Court of ACT by writ (the "1996 proceedings") against Pyramid and Farrow. 13 Apr 1997 Pyramid and Farrow file a Notice of Motion seeking, inter-alia, an order that the writ filed by Jambrecina commencing the 1996 proceedings be struck out ("the first Notice of Motion"). 14 29 May 1997 Cooper J makes an order striking out the writ of summons and Statement of Claim in the 1996 Proceedings. 15 4 Aug 1997 Jambrecina files a second Notice of Motion in the 1996 Proceedings seeking orders that leave be granted to institute proceedings against Pyramid and Farrow and that the 1996 Proceedings be re-opened ("the second Notice of Motion"). 16 26 Aug 1997 Jambrecina files a further Notice of Motion in the 1996 Proceedings seeking an extension of time to appeal to the Federal Court against the decision of Cooper J made on 29 May 1997 ("the third Notice of Motion"). 17 29 Aug 1997 Master Connolly dismisses the second and third Notice of Motion and orders Jambrecina to pay the costs of Pyramid and Farrow. 18 19 Mar 1999 Jambrecina commences proceedings 20101/99 against Pyramid and Farrow by Statement of Claim in the NSW Supreme Court, Common Law Division (the "1999 Proceedings"). 19 19 Mar 1999 Jambrecina files a Notice of Motion in the 1999 Proceedings seeking an order for leave to proceed against Pyramid and Farrow pursuant to Section 417B of the Corporations Law 20 27 Apr 1999 Pyramid and Farrow files a Notice of Motion in the 1999 Proceedings seeking orders that the 1999 Proceedings be stayed or dismissed pursuant to Part 13 Rule 5 and that the Statement of Claim be struck out pursuant to Part 15 Rule 26 of the Supreme Court Rules. 21 13 Jul 1999 Jambrecina's Notice of Motion and Pyramid and Farrow's Notice of Motion are heard before Master Malpass. 29 Jul 1999 Judgment by Master Malpass handed down ordering that Jambrecina's Statement of Claim be struck out and that Jambrecina be granted leave to file an Amended Statement of Claim within 28 days 23 26 Oct 2000 Orders made by Master Malpass on 29 July 1999 entered. 24 26 Aug 1999 Jambrecina files an Amended Statement of Claim in the 1999 Proceedings in accordance with the orders of Master Malpass. 25 28 Sept 1999 Pyramid and Farrow file an Amended Notice of Motion in the 1999 Proceedings seeking to have the Amended Statement of Claim struck out pursuant to Part 15 Rule 26 of the Supreme Court Rules. 26 6 Dec 1999 The Amended Notice of Motion filed by Pyramid and Farrow and Jambrecina's Notice of Motion were heard before Master Malpass. 15 Dec 1999 Judgment by Master Malpass handed down ordering that the Amended Statement of Claim be struck out and dismissing Jambrecina's Notice of Motion. 27 28 Jan 2000 Jambrecina files a Notice of Appeal in the 1999 Proceedings appealing the Judgment of Master Malpass. 29 29 Feb 2000 Judgment by James J - appeal dismissed. 30 3 Mar 2000 Order made by James J on 29 February 2000 entered. 31 28 Mar 2000 Jambrecina files a Notice of Appeal without appointment in the NSW Supreme Court, Court of Appeal commencing proceedings 40196/2000 (the "2000 Proceedings"). 32 27 Jun 2000 Jambrecina files a Notice of Appeal with appointment in the 2000 Proceedings. 33 11 Jul 2000 Pyramid and Farrow file a Notice of Contention in the 2000 Proceedings. 34 Jambrecina commences proceedings 20522/2000 in the NSW Supreme Court, Common Law Division by Statement of Claim (the "20522/00 Proceedings"). 37 28 Sept 2000 Jambrecina also files a Notice of Motion seeking leave to proceed against Pyramid and Farrow pursuant to Section 471B of the Corporations Law. 38 29 Sept 2000 Jambrecina files a Notice of Discontinuance discontinuing the 2000 Proceedings. 36 16 Oct 2000 Pyramid and Farrow files a Notice of Motion seeking that the 20522/00 Proceedings be dismissed and that the Statement of Claim be struck out pursuant to Part 13 Rule 5(1)(a)and (c) and Part 15 Rule 26(1)(a), (b) and (c) of the Supreme Court Rules. 39 17 Oct 2000 Jambrecina files a Notice of Motion seeking to transfer the 20522/00 Proceedings to the Equity Division of the NSW Supreme Court pursuant to Part 12, Rule 5 of the Supreme Court Rules. 40 26 Oct 2000 Order made by Master Malpass on 15 December 1999 entered. 28 7 Feb 2001 Bankruptcy Notice issued by Pyramid and Farrow against Jambrecina in respect of unpaid costs arising out of the failed 1996 Proceedings. 42 5 Mar 2001 Master Harrison hears the Notices of Motion filed in the 20522/00 Proceedings. 19 Mar 2001 Jambrecina files an application in the Federal Court of Australia, Sydney Registry, Proceedings N7144/01 to set aside the Bankruptcy Notice on the basis that Jambrecina has current proceedings in the Supreme Court. 43 21 Mar 2001 Judgment handed down by Master Harrison ordering that the 20522/00 Proceedings be dismissed and Jambrecina's Statement of Claim be struck out. 44 26 Mar 2001 Jambrecina files a Notice of Appeal in the 20522/00 Proceedings in respect of the Judgment of Master Harrison. 46 10 Apr 2001 Jambrecina's application to set aside the Bankruptcy Notice stood over pending resolution of his appeal of Master Harrison's decision. Application to set aside Bankruptcy Notice adjourned to 12 June 2001. 47 12 Apr 2001 Order made by Master Harrison in 20522/00 Proceedings on 21 March 2001 entered. 45 12 June 2001 Application to set aside Bankruptcy Notice adjourned by consent to 10 July 2001 pending resolution of Jambrecina's appeal. 48 20 June 2001 Jambrecina's appeal (20522/00 Proceedings) from decision of Master Harrison listed before Matthews J. Her Honour notes that the appeal is withdrawn and Jambrecina to pay the costs of Pyramid and Farrow. 49 29 June 2001 Order made by Matthews J on 20 June 2001 entered. 50 10 July 2001 Federal Court Proceedings N7144/01 being the Application to set aside the Bankruptcy Notice dismissed. 51 4 Sept 2001 Creditors' petition filed. 52 31 Dec 2001 Creditors' petition served on Jambrecina. 53 21 Jan 2002 Statement of Claim filed by Jambrecina in Supreme Court of NSW, Common Law Division commencing proceedings 20019 of 2002 (the "2002 proceedings") against Pyramid and Farrow. 53 4 Feb 2002 Notice of Objection to Creditors Petition filed in Federal Court Proceedings N7144/01. 54 22 Mar 2002 Notice of Motion filed by Pyramid and Farrow seeking that the 2002 proceedings be dismissed and that the Statement of Claim be struck out pursuant to Part 13 Rule 5(1)(a)and (c) of the Supreme Court Rules, that the proceedings be stayed or dismissed or, alternatively, an order pursuant to Part 15 Rule 26(1)(a), (b) and (c) of the Supreme Court Rules that the Statement of Claim be struck out 55 On or about March 2002 Pyramid and Farrow commence proceedings 10820 of 2002 in the NSW Supreme Court, Common Law Division by Summons (the "10820/02 Proceedings") seeking declarations that Jambrecina is a vexatious litigant within the meaning of section 84(2) of the Supreme Court Act and ancillary orders.

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