Peden J, By Hallen J, By Ward CJ, Hallen J, Ward CJ
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
Judgment
Before the Court is an application by James Davy and Kimberley Evans filed 30 November 2021 seeking an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.10 and/or section 67 Civil Procedure Act 2005 (NSW) and/or the inherent jurisdiction of the Court restraining the Respondent on the motion, Sean Cornelius Van Gorp, from "commencing or continuing any proceedings in any Court or Tribunal against either of the Applicants (other than by a claim in the nature of a defence, cross-claim or cross-summons) which arise from the same or similar facts as these proceedings, including the applications brought by the Respondent in these proceedings, unless and until the Respondent has paid in full" three costs orders in these proceedings as outlined below.
1. First, a costs order made on 18 December 2020 by Hallen J. That order concerned Mr Van Gorp's notice of motion dated 30 October 2020, seeking to remove a tutor who had earlier been appointed to act for his minor daughter in the proceedings with his consent. Hallen J dismissed the motion with costs: see Van Gorp v Davy [2021] NSWSC 1509.
2. Secondly, a costs order made on 18 November 2021 by Hallen J. That order concerned Mr Van Gorp's 5 July 2021 motion seeking orders about reserved costs orders. Hallen J set out the history of the matter in Van Gorp v Davy [2021] NSWSC 1509 and dismissed Mr Van Gorp's application for costs, save for the original filing fee of a statement of claim, in relation to which he was found to have no standing.
3. Thirdly, what is sought in the motion is "any costs order made in favour of the Applicants concerning the Respondent's notice of motion dated 12 November 2021". Ward CJ in Eq heard that 12 November 2021 motion on 2 December 2021 and published her reasons on 1 February 2022 in Van Gorp v Davy [2022] NSWSC 39, dismissing the Respondent's application with costs, which are now sought.
There are therefore currently three costs orders in favour of the Applicants. However, they are not gross sum costs orders. The Applicants did seek a gross sum costs order at the hearing before Hallen J on 18 November 2021, but had only advised Mr Van Gorp of that matter the day before and his Honour rejected the application. Further, to date none of these costs orders have been agreed or assessed.
There are various bases for the application. First, the Applicants submit an order can be made pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.10 (UCPR), which provides:
12.10 Stay of further proceedings to secure costs of proceedings dismissed
If --
(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and
(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,
the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.
On its terms the discretion in that rule is triggered where there is a costs order as a consequence of a "dismissal" of "proceedings". The costs orders in question were made on the dismissal of the Respondent's various motions. The main proceedings were not dismissed, but resolved by consent.
"Proceedings" is not defined in the rule. However, there is at least obiter to the effect that a generous reading of "proceedings" ought to be given. For example in The Owners Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612, Ward J made an observation about the meaning of "proceedings" under s 18E of the Home Building Act 1989 (NSW) (at [385]): 'A review of the cases which have considered the term in other legislative contexts would certainly suggest that, at least for the purposes of the UCPR, the concept of "proceedings" includes all claims brought within the umbrella of the set of proceedings comprised within the one court file.'.
However, even if UCPR r 12.10(a) includes motions within a matter, the form of the stay envisaged in UCPR r 12.10(b) concerns further proceedings that have been commenced with the same or similar cause of action or relief before costs of earlier proceedings have been paid.
Counsel for the Applicants was not aware of Mr Van Gorp having commenced any proceedings with a similar cause of action or relief in any location, other than a Summons seeking leave to appeal in the Court of Appeal from Ward CJ in Eq's decision earlier this year. The Applicants informed the Court that they do not stand in the way of the application for leave to appeal or an appeal.
I do not consider UCPR r 12.10 operates on the facts as there are currently no other proceedings to be stayed: see Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822 at [110] (Davies J).
As an alternative, the Applicants seek an order under section 67 of the Civil Procedure Act 2005 (NSW). It provides:
Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
However, again, there are no proceedings before this Court, in relation to which the Court could use its power to stay.
As a further alternative, an order is sought pursuant to the Court's inherent jurisdiction. That appears to be the appropriate avenue for the order sought, as the real substance of the application is in the nature of an injunction to prevent further similar proceedings being brought by Mr Van Gorp. The order sought in the notice of motion is in fact framed in terms of an order "restraining the Respondent" from bringing further proceedings (emphasis added), not a stay.
The Applicants referred to authorities, in which orders have been made restraining a litigant from commencing or continuing proceedings in respect of the same or similar facts without paying outstanding costs orders: K Sheridan v Colin Biggers & Paisley [2019] NSWSC 621, in which Black J refers to Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 at [61] and Kostov v Nationwide News Pty Ltd (No 1) [2018] NSWSC 1822.
The Applicants placed particular reliance on the decision of Black J in K Sheridan v Colin Biggers & Paisley, where a restraining order was made, which "does not prevent the Plaintiff commencing further proceedings, subject to any questions of issue estoppel, res judicata or abuse of process, one he has paid the … [costs] … or with leave of a Judge in an appropriate case."
In that case there was clear evidence that the litigant being restrained had brought several applications of a similar nature and had foreshadowed commencing proceedings in "Her Majestys Federal Court". His Honour was satisfied that there was a "substantial risk" that the litigant would commence further proceedings against the Applicants in respect of the same or similar facts without first paying outstanding costs orders. That conclusion was reached in part because the litigant "does not necessarily recognise that he is bound by Australian law or by orders of this Court" ([2019] NSWSC 621 paragraph [31]).
In Webster v Super Smart Strategies Pty Ltd, Adamson J considered at [61], in the context of a similar order imposing restraint being made, that such an order should be proportional and be directed to the prejudice which would be occasioned if the order was not included.
[2]
Determination
I am satisfied that it is appropriate to make an order restraining Mr Van Gorp from bringing repetitive claims against the estate and executors for the following reasons, having regard to the need to protect the Applicants and the Court's processes.
First, I am satisfied that there is a substantial risk that Mr Van Gorp will continue to bring proceedings in an attempt to obtain for his daughters what he considers is their entitlement to financial provision from the estate of their mother (his late ex-wife). Mr Van Gorp's proceedings in this Court have been summarised in the judgments of Ward CJ in Eq and Hallen J: see Van Gorp v Davy [2021] NSWSC 1509 at [3]-[49].
Ward CJ in Eq noted that Mr Van Gorp has a "fixed belief" that his children "will receive nothing out of their mother's estate": [2022] NSWSC 39 at [8]. During the hearing of the Applicants' motion he expressed a similar sentiment, and indicated that he considers that his children have been "brainwashed" and that he has a duty as a parent to bring litigation on their behalf. Mr Van Gorp also indicated it would be "naive" to believe that his children could bring litigation on their own merely because they both will have reached the age of majority later this year. Indeed, Mr Van Gorp told the Court "I have a duty as a parent I think, even a parent of adult children."
Mr Van Gorp has also been involved in litigation spanning many years in the Family Court concerning his divorce and child support issues. Mr Van Gorp told the Court that he is awaiting a judgment from the Family Court in relation to a matter concerning an alleged fraud that was heard in February this year that "underpins" the proceedings in this Court.
Mr Van Gorp foreshadowed at the hearing that, depending on the outcome of his Summons seeking leave to appeal (which appears to have been filed out of time), he would consider what further proceedings may be necessary to assist his children.
If his application for leave to appeal is successful then any order preventing further litigation by him will not impact upon him. However, if his application fails it seems likely that Mr Van Gorp will seek to agitate similar issues on behalf of his children, including by commencing proceedings in respect of the same or similar facts as these proceedings.
Secondly, the Applicants do not seek to restrain Mr Van Gorp bringing any and all proceedings; he would be able to bring any appeal from a judgment, and claims that arise from different facts or seek different relief.
Thirdly, the restraint would only operate while the costs payable remain outstanding. While those costs have not been agreed or assessed, they would not be greater than approximately $50,000 based on the Applicants' ledgers of costs and disbursements in evidence. The Applicants are not seeking payment of all costs from all proceedings (which run to hundreds of thousands of dollars) to be paid before the restraint ceases to be effective.
For these reasons, I am satisfied that an order imposing restraint is proportional in these circumstances.
Finally, while not sought by the Applicants, I consider it appropriate that Mr Van Gorp have the ability to seek leave of a Judge of this Court to bring proceedings despite the restraint that would otherwise apply. This accounts for the possibility that there is further delay in the assessment of costs or other matters working to the prejudice of Mr Van Gorp: Webster at [61] (Adamson J).
I note that Mr Van Gorp relied upon the summary of argument filed with the Summons seeking leave to appeal to provide background to the matter and to support his submission that the Applicants' motion was premature and should await the Court of Appeal's decision. I do not agree with that submission, particularly in circumstances where the Applicants do not seek to prevent Mr Van Gorp's application for leave to appeal.
Accordingly, I make the following orders:
1. The Respondent, Mr Sean Cornelius Van Gorp, is restrained from commencing or continuing in any Court or Tribunal any proceedings against either or both of James Ashleigh Davy and Kimberley Ann Evans (other than by a claim in the nature of an appeal, cross-appeal, defence, cross-claim or cross-summons) which arise from the same or similar facts as these proceedings, including the applications brought by the Respondent in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the Respondent has paid in full the costs as ordered:
1. By Hallen J on 18 December 2020;
2. By Hallen J on 18 November 2021;
3. By Ward CJ in Eq on 1 February 2022.
1. The Respondent to pay the costs of the Applicants as agreed or assessed.
[3]
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Decision last updated: 19 April 2022
Parties
Applicant/Plaintiff:
James Ashleigh Davy and Kimberley Ann Evans (as Executors of the Estate of the Late Kate Louise Davy)