Coulter v McGettigan (No 2) [2021] NSWSC 1356
McGettigan v Coulter
Coulter v McGettigan [2021] NSWSC 1097
Potier v Attorney General (NSW) (2015) 89 NSWLR 284
[2015] NSWCA 129
Category: Principal judgment
Parties: John Patrick McGettigan (Applicant)
Source
Original judgment source is linked above.
Catchwords
Coulter v McGettigan (No 2) [2021] NSWSC 1356
McGettigan v CoulterCoulter v McGettigan [2021] NSWSC 1097
Potier v Attorney General (NSW) (2015) 89 NSWLR 284[2015] NSWCA 129
Category: Principal judgment
Parties: John Patrick McGettigan (Applicant)
Judgment (6 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: The applicant seeks leave to appeal from orders of Richmond J on 22 December 2023: McGettigan v Estate of the Late Beverley Teresa McGettigan [2023] NSWSC 1641 ("primary judgment" or "J"). His Honour had before him three notices of motion:
1. A motion filed 28 June 2023 by the applicant seeking orders that $1.48 million be paid into court by the respondents.
2. A motion filed 2 August 2023 by the respondents (the second and third defendants in the substantive proceedings) seeking orders striking out both the applicant's motion of 28 June 2023 and the statement of claim in the proceedings, and, under the Vexatious Proceedings Act 2008 (NSW) ("VP Act"), declaring that the applicant is a vexatious litigant and restraining the applicant from commencing proceedings against the respondents without first obtaining leave of the court.
3. A motion filed 27 October 2023 by the applicant seeking orders including that the respondents' notice of motion filed 2 August 2023 be struck out and that the respondents be declared vexatious litigants.
The orders made by Richmond J on 22 December 2023 were:
"(1) The plaintiff's statement of claim in proceedings 2023/192712 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
(2) The plaintiff's motions filed on 28 June 2023 and 27 October 2023 are dismissed.
(3) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) proceedings 2023/192712 and any other ongoing proceedings brought by the plaintiff against the second or third defendants are stayed.
(4) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the plaintiff, John Patrick McGettigan, is prohibited from instituting proceedings in New South Wales against:
(a) Rhonda Anne Coulter or her spouse; or
(b) Glen Patrick Coulter or his spouse,
without first obtaining leave of this Court.
(5) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the plaintiff, John Patrick McGettigan, is prohibited from instituting any proceedings in New South Wales against any person in relation to:
(c) any claims relating to the estate of Brian McGettigan;
(d) any claims relating to the estate of Beverley McGettigan; or
(e) any claims relating to the property known as "Christmas Lodge" situated at 284 Tennyson Road, Tennyson, New South Wales,
without first obtaining leave of this Court.
(6) The plaintiff pay the defendants' costs of the proceedings as agreed or assessed.
(7) Liberty to the defendants to apply for a variation of the costs order within 7 days of the date of this order."
For convenience, we will refer to the proceedings before Richmond J as the "current proceedings".
The applicant requires leave to appeal against these orders: Supreme Court Act 1970 (NSW), s 101(2)(e). As to order 1, it is well established that such an order is interlocutory: Macatangay v State of NSW (No 2) [2009] NSWCA 272 at [11]. As to the orders under the VP Act, in Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 ("Potier") Leeming JA (Basten and Meagher JJA agreeing) found that leave to appeal against orders under the VP Act was probably required under s 101(2)(e) of the Supreme Court Act having regard to the deal of authority supporting the proposition that orders under the VP Act are interlocutory: at [47]. Subsequently:
1. in De Varda v Austin [2018] NSWCA 263 at [35] Beazley P, having referred to the judgment of Leeming JA in Potier, held that leave to appeal was required;
2. in Mahmoud v Attorney General (NSW) [2017] NSWCA 12 at [7], [9] Payne JA (Beazley P and Macfarlan JA agreeing) noted that the Attorney General conceded that leave to appeal was required and should be granted, and Court proceeded on that basis;
3. in Batterham v Nauer [2020] NSWCA 204 at [8] Simpson AJA (Macfarlan and Payne JJA agreeing) found that the applicant had correctly accepted that leave to appeal against an order made under s 8 of the VP Act was required; and
4. in Collier v Attorney General (NSW) [2023] NSWCA 273 at [5] Kirk JA (Ward P and Griffiths AJA agreeing) held that leave to appeal is required against an order under s 8 of the VP Act.
The respondents in their written submissions refer to the judgment of Jackman J in Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884 ("Krejci") where, having regard to the decision of the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 (where the question was whether a decision was final for the purposes of the doctrine of issue estoppel), his Honour found that orders under s 8 of the VP Act were final orders for the purpose of the doctrine of issue estoppel: at [52], [55]. In Krejci, Jackman J acknowledged that the question whether leave to appeal is required from orders under the VP Act was a different question from that before him, and was a matter for this Court: at [53]-[54]. His Honour added that nothing he said in Krejci was intended to have any bearing on that question, to which different considerations may apply.
It was not suggested on this application that the decision of Jackman J in Krejci has any bearing on the question whether leave to appeal is required from the orders of Richmond J.
Similarly, whilst the respondents also refer to the decision of the Full Court of the Federal Court in Fuller v Toms (2015) 234 FCR 535; [2015] FCAFC 91, the Court's conclusion in that case that an order under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) was final turned on the terms of s 37AO(5) that expressly declared as much.
Neither the applicant nor the respondents contend that the line of authority in this Court which supports the conclusion that an order under s 8 of the VP Act is interlocutory, should not be followed or is wrong. Given this, and that an order under s 8 is liable to be varied or set aside under s 9 of the VP Act, it is appropriate to proceed on the basis that leave to appeal under s 101(2)(e) of the Supreme Court Act is required.
The application for leave to appeal filed on 5 February 2024 is out of time: Uniform Civil Procedure Rules 2005 (NSW), r 50.12(1)(a) ("UCPR"). However, the delay was not significant and it occurred to some extent over the Christmas period.
For the reasons set out below, to the extent necessary an extension of time for the filing of the summons for leave to appeal should be granted but the summons for leave to appeal should be dismissed with costs.
[3]
Background
The applicant is the brother of Brian McGettigan ("Brian") who died in April 2018 and was married to Beverley McGettigan ("Beverley") who died in July 2018. The respondents are Beverley's nephew and niece. They are the executors of the Estate of Beverley Teresa McGettigan, the first named defendant in the proceedings below. By a will executed in 2000 ("2000 Will") Brian had left the whole of his estate to Beverley and there had been no grant of probate between his death and Beverley's death.
In 2018 the respondents sought probate in respect of Beverley's estate and commenced proceedings to apply for letters of administration in respect of Brian's estate (the "Probate Proceedings"). The applicant lodged a caveat in the Probate Proceedings claiming that the will of Brian was a forgery and that Brian had made his last will on 16 July 2016 ("2016 Will") leaving the bulk of Brian's estate to him.
The applicant also commenced proceedings against the respondents (the "2020 Equity Proceedings") seeking to enforce various legal instruments that he claimed were entered into between him, Brian and Beverley (and sometimes others), including sale and purchase agreements dated December 1997 and July 2016. The applicant claimed those agreements conferred on him an interest in a property called "Christmas Lodge" and other properties in Brian and Beverley's estates.
Slattery J heard the Probate Proceedings and the 2020 Equity Proceedings concurrently on various dates between 1 April to 16 June 2021. During the course of that hearing, as is apparent from transcript dated 1 April 2021, one of the matters upon which the applicant relied was a "debt and settlement agreement" pursuant to which Beverley allegedly owed him $150,000.
On 31 May 2021 the applicant had applied to reopen his case in the Probate Proceedings, seeking to rely upon further evidence, of text messages, as proof that the 2000 Will was a forgery. Slattery J, dismissing the motion, found that the text messages as advanced were "incomplete", seriously damaging the applicant's credibility.
Prior to that hearing, the applicant commenced two further proceedings referred to as the Christmas Lodge Proceedings and the 2021 Equity Proceedings. In the Christmas Lodge Proceedings the applicant relied upon a lease agreement dated 26 July 2016.
On 31 August 2021 Slattery J delivered judgment in the Probate Proceedings and the 2020 Equity Proceedings: McGettigan v Coulter; Coulter v McGettigan [2021] NSWSC 1097 ("J1"). His Honour dismissed both proceedings, granted probate of the 2000 Will, found that the applicant had manufactured numerous false documents including four versions of the 2016 Will and a number of other instruments, including the lease agreement dated 26 July 2016 (relied upon in the Christmas Lodge Proceedings) and the sale and debt settlement agreement dated 26 July 2016 (relied upon in the statement of claim in the current proceedings). Slattery J referred the applicant to the Attorney General for consideration as to whether any further action should be taken against him on account of the findings of forgery.
On 8 September 2021 the applicant filed a notice of intention to appeal from the orders of Slattery J (the "Appeal Proceedings").
On 22 October 2021 Slattery J delivered a second judgment in the 2020 Equity and Probate Proceedings ordering a gross sum costs order: McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356.
In November 2021 the respondents filed notices of motion in the Christmas Lodge and 2021 Equity proceedings seeking orders that those claims be dismissed. These were heard by Parker J on 31 January 2022. His Honour dismissed the Christmas Lodge Proceedings and made orders in the 2021 Equity Proceedings granting leave to the applicant to make an application for leave to file an amended statement of claim articulating only "the claims the subject of the notation" which included a claim against Beverley's estate for judgment in the sum of $150,000 based on an alleged written agreement constituted by letter dated 10 January 2006.
In April 2022 Parker J made orders dismissing the applicant's application for leave to amend the statement of claim on the basis that the proposed draft did not comply with the limitations on the grant of leave and in any event did not plead material facts in an intelligible form to support the claims. The 2021 Equity Proceedings were then transferred to the District Court, where they were dismissed by Registrar Howard on 30 June 2022 under r 13.4(1)(a) and (c) of the UCPR, that is, on the basis that they were both frivolous or vexatious and an abuse of process.
In January 2022 the applicant filed a notice of appeal out of time in the Appeal Proceedings. After the appeal was heard, but before judgment, the applicant filed a notice of motion seeking to reopen the case at first instance so as to cross-examine a witness that was not cross-examined below. On 29 August 2022 this Court dismissed both the appeal and that notice of motion: McGettigan v Coulter [2022] NSWCA 166 ("AJ").
By statement of claim filed on 16 June 2023 the applicant commenced the current proceedings. The applicant sought orders in prayers A to D against Beverley's estate and the respondents to the effect that the respondents should pay him a total of $1.48 million. Repayment of a debt of $150,000 was sought in prayer A. The applicant claimed the debt to have been agreed in a 1 January 2006 letter described by the applicant as being from Beverley to him. This appears to be a reference to a letter of 10 January 2006, which on its face purports to be a letter from Beverley to the applicant agreeing to pay him "$150K", attached to an affidavit of the applicant sworn on 14 March 2022 in the 2021 Equity proceedings. That letter appears to have been relied upon by the applicant in support of a claim for judgment in the sum of $150,000 in the 2021 Equity Proceedings before Parker J (see above at [20]).
Prayers B and D both sought relief relying upon a sale and debt settlement agreement dated 26 July 2016. In prayer D the applicant sought an order that the respondents pay him $1,330,000 pursuant to that document. Prayer C sought a declaration confirming the validity of an affidavit provided by Heath Document Consultants of the same date. That sale and debt settlement agreement was relied upon before Slattery J in the 2020 Equity Proceedings and his Honour did not accept that this was a genuine document: J1[346]. On appeal, this Court upheld that finding: AJ[70].
As set out above, on the three motions described at [1] above came before Richmond J on 30 November 2023. His Honour struck out the applicant's statement of claim under UCPR, r 14.28 on the basis that it was an abuse of process as it was effectively an attempt to reopen the case that was determined by Slattery J: J[47].
The basis for his Honour making the orders under s 8 of the VP Act was that each of the filing of a cross-claim in the Probate Proceedings, the 2020 Equity Proceedings, notice of motion of 31 May 2021 in the Probate Proceedings, the Appeal Proceedings, the Christmas Lodge Proceedings, the 2021 Equity Proceedings, the current proceedings and the two motions filed by the applicant in those proceedings were vexatious: J[61] read together with [75], [82], [101]. His Honour clearly considered, and applied, the definition of vexatious proceedings in s 6 of the VP Act. In each of these proceedings, his Honour found, the applicant had sought to propound documents that he fraudulently produced for the purpose of advancing his own interests in relation to the estates of Beverley and Brian or should have been advanced in the Probate Proceedings or the 2020 Equity Proceedings, to continue to pursue claims that have been rejected or without reasonable grounds, to harass and annoy and for a wrongful purpose: J[61], [66], [74], [77]-[78], [86], [89], [94], [100]. His Honour explained at some length from J[62] to [100] why that was the case.
His Honour found, in these circumstances, that the applicant had frequently instituted vexatious proceedings and that it was appropriate, having regard to the purpose of the VP Act, to make an order under s 8 of the VP Act. As to this, his Honour took into account affidavit evidence sworn by the Coulters that evidenced that there had been a "sustained campaign by [the applicant] against them both inside and outside of the courtroom". His Honour also relied upon evidence of previous judicial decisions and orders: J[107]. His Honour found that it was very likely that the applicant "will continue to launch proceedings against the Coulters and that should not be permitted": J[109].
[4]
Consideration
The principles governing applications for leave to appeal are well established. Generally, it is appropriate to grant leave where there is "an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable": Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, Ward P and Basten AJA agreeing).
By his draft notice of appeal dated 1 January 2024 the applicant proposes six grounds of appeal:
"1. There is insufficient evidence to support the declaration that the applicant is a vexatious litigant.
2. There is insufficient evidence to support the declaration that the applicant documents lodged were of sufficient frequency to declare the applicant a vexatious litigant.
3. There is insufficient evidence to support the declaration that the applicant abuses the processes of the court.
4. The Court falsely claimed that the documents lodge by the applicant were forgeries.
5. The Court falsely claimed the affidavits and evidence by Ms M Holt was accepted when she was not an approved court expert.
6. The Judge failed to give adequate reasons for his conclusions."
The applicant filed written submissions on 8 April 2024, 28 May 2024 and 11 June 2024. Whilst he did not have leave to file the last of these, we have nonetheless taken them into account. The applicant also made oral submissions at the hearing of his application for leave. In his oral submissions, the applicant emphasised some of the matters in his written submissions and went through each of the proceedings which Richmond J found to be vexatious, identifying the basis on which he contended that his Honour erred.
We do not intend to rehearse the entirety of the matters relied upon by the applicant in support of this application for leave to appeal. Broadly, the applicant contends that the findings of Slattery J that the 2000 Will was valid and the 2016 Will and the 26 July 2016 sale and debt settlement agreement (and other documents) were forgeries, and the decision of this Court upholding those findings, are incorrect and have no legal basis. To the extent that the primary judge relied upon the judgments of Slattery J and of this Court (as his Honour was entitled to under s 8(2) of the VP Act), the applicant submits his Honour's decision has no legal basis. The applicant also makes numerous allegations as to error in the judgments of Slattery J and this Court. He also contends that Parker J did not understand his claim. However, such allegations are not a matter that this Court can properly consider on an application such as this. To some extent, the character of the applicant's submissions can be readily gleaned by his contention that the judiciary was "in denial" or assisted in "covering up the theft of the assets" and from his later contention that the primary judge's decision was itself "vexatious".
Having carefully considered the applicant's written and oral submissions, we are satisfied that the matters raised do not raise an issue of principle or a question of public importance. The primary judgment is not attended with sufficient doubt to warrant its reconsideration on appeal.
As to proposed grounds of appeal 1 to 3, as summarised in our outline of the background to this application, it is clear that there was sufficient evidence before the primary judge to support his Honour's orders under the VP Act. His Honour carefully identified the matters arising out of the various pleadings, motions and judgments which supported his conclusion. The primary judge carefully dealt with each of the proceedings that his Honour found to be vexatious, identifying clearly the matters that he relied upon in support of his finding that the proceedings were vexatious, and that the applicant had frequently instituted vexatious proceedings under the VP Act. His Honour's findings are entirely consistent with the definition of vexatious proceedings in s 6 of the VP Act.
As regards the applicant's proposed appeal against the primary judge's decision to strike out the statement of claim in the current proceedings (which also falls within the ambit of ground 3), the primary judge analysed each of prayers A to D in the statement of claim separately, identifying the evidence upon which he relied. In respect of prayer A the primary judge observed that the $150,000 the applicant claimed was evidenced by copy of a typed letter dated 10 January 2006: J[38] (incorrectly described in the statement of claim as a 1 January 2006 letter), and that this letter was raised in the 2021 Equity Proceedings: J[39]. Despite there being no final determination on the merits in those proceedings, his Honour found that in the context of the litigation launched by the applicant prayer A amounted to an abuse of process and served to "bring the administration of justice into disrepute": J[40]. This was because, the applicant had every opportunity before Parker J and the District Court to plead this cause of action: J[41], and importantly, as to the 10 January 2006 letter which was the basis of the claim, Ms Holt's evidence was that there was moderately strong support for the conclusion that this was a forgery, noting that Slattery J at J1[361] "wholly accepted" Ms Holt's evidence: J[42]. The primary judge could not be satisfied that an express finding was made by Slattery J in respect of the 10 January 2006 letter. However, this was because the applicant decided not to plead that cause of action, albeit that he had had various opportunities to bring that claim. To now allow the applicant to raise those issues would be an abuse of process: J[43].
In respect of prayers B and D, which related to the "sale and debt settlement agreement dated 26/7/2016" the primary judge observed that this claim had been raised and determined in previous proceedings and reagitated on appeal: J[44]-[45] referring to J1[343]-[346]; AJ[69]-[70]. As such, it would be an abuse of process, cause unreasonable oppression to the defendants and bring the administration of justice into disrepute to allow the applicant improperly to raise issues previously agitated in proceedings that had been finalised: J[45].
As to the "affidavit of Heath Documents Consultants" in prayer C, this was relied upon in support of a contention that the 26 July 2016 sale and debt settlement agreement was valid. Issues as to the validity of this document were raised before Slattery J and in the Appeal Proceedings: J[46] referring to J1[342]-[346]; AJ[24]-[46]. The primary judge found that the purpose of this claim was to launch "another attack on the determination of the Probate Proceedings, 2020 Equity Proceedings, and the Appeal Proceedings". His Honour thus held that, by "seeking to effectively reopen the case that was before Slattery J, the plaintiff is abusing the processes of the Court": J[47].
There was clearly sufficient evidence before his Honour to found these conclusions.
Proposed grounds 4 and 5 seek to impugn the primary judge's reliance upon the findings of Slattery J, upheld by this Court. In the circumstances, this ground has no merit.
Proposed ground 6 seeks to challenge the adequacy of the primary judge's reasons. Again, it is without merit. The primary judge carefully exposed his reasoning, which fully supported the orders his Honour made.
[5]
Conclusion
In light of the matters set out above, the orders of the Court are:
1. Extension of time for the filing of the application for leave to appeal is granted.
2. Application for leave to appeal dismissed with costs.
[6]
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Decision last updated: 14 June 2024