National Australia Bank v Satchithanantham

CATCHWORDS: ABUSE OF PROCESS - inherent jurisdiction - extends to restraining interlocutory applications after final judgment. - COURT & JUDGES - inherent jurisdiction - abuse of process - power to prevent in existing proceedings - extends to restraining interlocutory applications after final judgment. - PRACTICE & PROCEDURE - abuse of process - inherent jurisdiction - extends to restraining interlocutory applications after final judgment.

Commonwealth Trading Bank v Inglis [1974] HCA 17, 131 CLR 311 CASES CITED: Hunter v Chief Constable [1982] AC 529, Walton v Gardiner [1993] HCA 77, 177 CLR 378

PARTIES: National Australia Bank Limited (applicant) Hemalathasothy Ranjini and Thambiappah SATCHITHANANTHAM (respondents)

COUNSEL: Ms N Bearup for the Applicant Mr Thambiappah Satchithanantham in Person

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 09/298148

MACFARLAN JA HANDLEY AJA SACKVILLE AJA

Tuesday 28 September 2010 NATIONAL AUSTRALIA BANK LIMITED v HEMALATHASOTHY RANIJINI SATCHITHANANTHAM & ANOR CATCHWORDS

ABUSE OF PROCESS - inherent jurisdiction - extends to restraining interlocutory applications after final judgment.

COURT & JUDGES - inherent jurisdiction - abuse of process - power to prevent in existing proceedings - extends to restraining interlocutory applications after final judgment.

PRACTICE & PROCEDURE - abuse of process - inherent jurisdiction - extends to restraining interlocutory applications after final judgment. HEADNOTE

The second respondent who was the registered proprietor of the matrimonial home mortgaged it to the Bank. In February 2009 the Bank recovered final judgment in the Supreme Court for possession of the mortgaged property and the mortgaged debt. Her appeal to the Court of Appeal was dismissed in September 2009 and the High Court refused special leave in April 2010. The respondent and her husband filed three notices of motion in the Court of Appeal prior to the final hearing two of which were dismissed with costs. They later filed two further notices of motion seeking stays of execution and the reopening of the appeal which were dismissed with costs. The stay of execution granted by the High Court expired on 30 April 2010. Since then the respondents had made four further unsuccessful applications to the Common Law Division for stays of execution and four further unsuccessful applications to the Court of Appeal. The writ for possession was executed on 26 May 2010. The Bank applied under the inherent jurisdiction of the Court for orders restraining the respondents from making further applications in the proceedings without the leave of the Court. HELD: Granting the application (1) The respondents had made unwarranted and vexatious applications to the Court of Appeal since final judgment was given in September 2009; (2) The inherent jurisdiction of the Court is not limited to restraining interlocutory applications in pending proceedings before final judgment; (3) Restraining orders should be made. ORDERS

Hemalathasothy Ranjini Satchithanantham is restrained from filing and serving any notice of motion and from making any oral application in these proceedings, either on her own behalf or on behalf of Bramooth Satchithanantham without the leave of a Judge of the Court.

If Hemalathasothy Ranjini Satchithanantham, without the leave of a Judge of the Court, files or serves any notice of motion in these proceedings, National Australia Bank Limited is not required to attend at the return of the notice of motion, or to participate in the proceedings upon the notice of motion unless a Judge of the Court otherwise directs, and unless a Judge of the Court thinks fit to give such direction, any such notice of motion shall be dismissed without being heard.

Leave pursuant to order 1 is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.

No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs.

Thambiappah Satchithanantham is restrained from filing and serving any notice of motion and from making any oral application in these proceedings, on his own behalf or on behalf of Hemalathasothy Ranjini or Bramooth Satchithanantham without the leave of a Judge of the Court.

If Thambiappah Satchithanantham, without the leave of a Judge of the Court, files or serves any notice of motion in these proceedings, National Australia Bank Limited is not required to attend at the return of the notice of motion, or to participate in proceedings upon the notice of motion unless a Judge of the Court otherwise directs, and unless a Judge of the Court thinks fit to give such direction, any such notice of motion shall be dismissed without being heard.

Leave pursuant to order 5 is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.

No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs.

The respondents to pay the Bank's costs of this motion.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 09/298148

MACFARLAN JA HANDLEY AJA SACKVILLE AJA

Tuesday 28 September 2010 NATIONAL AUSTRALIA BANK LIMITED v HEMALATHASOTHY RANIJINI SATCHITHANANTHAM & ANOR Judgment 1 MACFARLAN JA: I agree with Handley AJA 2 HANDLEY AJA: On 29 June 2010 the National Australia Bank (the Bank) filed a notice of motion which sought orders under the inherent jurisdiction of the Court restraining Mr and Mrs Satchi (as the respondents are often described) from filing and serving any notice of motion and for making any oral application "in these proceedings" without the leave of a Judge of this Court. 3 The application was made under the inherent jurisdiction of the Court. Commonwealth Trading Bank v Inglis [1974] HCA 17, 131 CLR 311 (Inglis) decided that a superior court has inherent jurisdiction to restrain a litigant making unwarranted and vexatious applications in an action pending in that court. 4 The substantive proceedings in this Court were an appeal which was finally disposed of for most purposes by the judgment of a Full Court on 2 September 2009. The Court can entertain further interlocutory applications for limited purposes and the respondents have filed numerous applications of this nature. The Bank seeks to prevent further applications without the leave of this Court. 5 Mr Satchi appeared in person, but Mrs Satchi did not and was not represented. 6 On 12 December 2007 James J made orders under s 84 of the Supreme Court Act as follows: "3. Thambiappah Satchithanantham be restrained from filing and serving any notice of motion and from making any oral application in these proceedings either on his own behalf or on behalf of Bramooth Satchithanantham without the leave of a judge of the Court; 4. If Thambiappah Satchithanantham does, without the leave of a judge of the Court, file or serve any notice of motion, the plaintiff shall not be required to attend the return of the notice of motion, or to participate in proceedings upon the notice of motion unless a judge of the Court shall otherwise direct, and unless the Court shall think fit to give such direction, any such notice of motion shall be dismissed without being heard; 5. Leave pursuant to order 3, is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion; 6. No oral hearing will take place on the application for leave, which will be determined without notice to other parties, unless the judge otherwise directs." 7 Those orders remain in force but are limited to Mr Satchi and "these proceedings" namely the Bank's action then pending against Mrs Satchi in the Common Law Division and her cross-claim. 8 On 6 February 2009 McCallum J entered judgment for the Bank for possession of the mortgaged property and for $408,665.86 in respect of its mortgage debt. Mrs Satchi's cross-claim was otherwise dismissed. 9 On 3 April 2009 Mrs Satchi filed a notice of appeal to this Court pursuant to a notice of intention to appeal. 10 The present respondents filed notices of motion in the appeal on 7 April, 14 May and 25 May 2009. 11 The first notice of motion was heard by Ipp JA on 18 May 2009 who granted a stay of execution, fixed the appeal for hearing on 1 July 2009, and gave procedural directions. 12 The second notice of motion, which sought procedural and substantive orders, was stood over to the hearing of the appeal. 13 The third notice of motion which sought to have the orders of Ipp JA set aside or varied was heard by Giles JA on 15 June 2009 and dismissed with costs. 14 The appeal was heard on 1 July 2009 by Hodgson, Giles and Young JJA. The Court dismissed the second notice of motion with costs and reserved judgment on the appeal. This was delivered on 2 September 2009 and the appeal was dismissed with costs, but execution was stayed, on terms, until 1 November. 15 On 11 September the respondent filed a fourth notice of motion in this Court which sought a further stay of execution. It was heard by Young JA on 27 October and dismissed with costs, but the stay was extended, on terms, to 17 November. 16 On 30 September of the respondents applied for special leave to appeal to the High Court. 17 On 6 November the respondents filed their fifth notice of motion in this Court which sought a review of the orders of Young JA of 27 October. It was heard on 17 November by Allsop P, Basten JA and Handley AJA. The Court's reserved judgment was delivered on 4 December and the notice of motion was dismissed with costs. The stay of execution which had remained in force until that date was not continued. 18 The respondents' special leave application was heard by the High Court on 23 April 2010 and dismissed with costs. The stay of execution granted by the High Court expired on 30 April. 19 The respondents filed notices of motion seeking further stays of execution in the Common Law Division on 18 March, 27 April and 30 April 2010 which were dismissed with costs on 23 March, 29 April and 19 May. 20 The respondents filed their sixth notice of motion in this Court on 19 May 2010 seeking a stay of execution and other orders which was dismissed with costs by Hodgson JA on 24 May. 21 On 25 May the respondents made an oral application for a stay of execution to Barr J in the Common Law Division which was dismissed with costs. A further application for a stay by a notice of motion filed on 26 May was dismissed by Barr J with costs the same day. The judgment for possession in favour of the Bank was executed later that day and possession was delivered to the Bank. 22 Three further notices of motion filed by the respondents in this Court on 7 June, 24 June and 6 August were summarily dismissed with costs by this Court on 13 September. 23 The respondents were entitled to challenge the final judgment of McCallum J. by an appeal to this Court, and were entitled to challenge the decision of this Court by an application to the High Court for special leave. When the High Court refused special leave on 23 April 2010 the respondents had exhausted all possible avenues for legal challenge to the substantive judgment in favour of the Bank for possession of the property and the mortgage debt. 24 In the meantime notices of motion seeking indefinite stays of execution and the reopening of the appeal to this Court had been dismissed on 27 October and 4 December 2009 and a similar application to the Common Law Division had been dismissed on 23 March 2010. 25 The respondent obtained stays of execution under orders of this Court and the High Court until 30 April 2010. By that date all possible grounds for a further stay of execution had disappeared. 26 In the meantime the respondents' notices of motion of 14 May, 25 May, 11 September and 6 November 2009 which challenged the final orders of McCallum J and of this Court and interlocutory orders in this Court had substantially failed. 27 Since the High Court refused special leave on 23 April 2010 the respondents have made five unsuccessful applications to the Common Law Division and four unsuccessful applications to this Court. 28 In my judgment the nine unsuccessful applications made by the respondent since 23 April this year were vexatious and abuses of the process of the Court. 29 The history I have outlined establishes that the respondents have frequently instituted and conducted vexatious proceedings in this Court and in the Common Law Division. 30 The Bank has standing to apply for a restraining order against the respondents under the inherent jurisdiction of the Court and the power to make such an order has been enlivened. The Court has a discretion but no reason appears for it to be exercised in favour of the respondents, and there is every reason for exercising it in favour of the Bank. 31 In Inglis [1974] HCA 17, 131 CLR 311, 319-20 Barwick CJ and McTiernan J said: "… the making of unwarranted and vexatious applications in an action which is pending in the Court is, in our opinion, a matter over which there is an inherent power in the Court to exercise control … In our opinion, the cases to which we have referred provide authority for the proposition that there is an inherent power in the Court to control the bringing of applications in the course of an action of which the Court is seized for the purpose of preventing a party abusing the process of the Court. … The Court has power to make an order … insofar as the application relates to the bringing of applications in existing proceedings, but not otherwise." 32 The appeal to this Court from the final judgment of McCallum J is no longer pending having been finally disposed of by the judgment of 2 September 2009. However the Court can continue to control the working out and enforcement of its orders and the respondents have used and abused these residual powers of this Court. 33 The question is whether the Court's power or duty to prevent the abuse of its process lapsed when final judgment was given, as a literal reading of the judgment in Inglis might suggest, or whether the power continues so long as further interlocutory process can be filed. 34 In Hunter v Chief Constable [1982] AC 529, 536 Lord Diplock, giving the principal speech in the appeal, said: "… this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied … It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty … to exercise this salutary power." 35 In Walton v Gardiner [1993] HCA 77, 177 CLR 378, 393 the majority, Mason CJ, Deane and Dawson JJ, quoted with approval part of this passage in the speech of Lord Diplock. In my judgment it would be a misuse of the doctrine of precedent to treat the language of Barwick CJ and McTiernan J in Inglis (above) as defining a fixed limitation on the scope of the Court's powers to prevent the abuse of its process. There is every reason for treating the Court's powers as co-extensive with the scope for the abuse of its process. 36 In my judgment therefore the Court has inherent power to restrain the filing of interlocutory applications after final judgment has been given in an appeal, and the Court should exercise that power. 37 The following orders should be made:

Hemalathasothy Ranjini Satchithanantham is restrained from filing and serving any notice of motion and from making any oral application in these proceedings, either on her own behalf or on behalf of Bramooth Satchithanantham without the leave of a Judge of the Court.

If Hemalathasothy Ranjini Satchithanantham, without the leave of a Judge of the Court, files or serves any notice of motion in these proceedings, National Australia Bank Limited is not required to attend at the return of the notice of motion, or to participate in the proceedings upon the notice of motion unless a Judge of the Court otherwise directs, and unless a Judge of the Court thinks fit to give such direction, any such notice of motion shall be dismissed without being heard.

Leave pursuant to order 1 is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.

No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs.

Thambiappah Satchithanantham is restrained from filing and serving any notice of motion and from making any oral application in these proceedings, on his own behalf or on behalf of Hemalathasothy Ranjini or Bramooth Satchithanantham without the leave of a Judge of the Court.

If Thambiappah Satchithanantham, without the leave of a Judge of the Court, files or serves any notice of motion in these proceedings, National Australia Bank Limited is not required to attend at the return of the notice of motion, or to participate in proceedings upon the notice of motion unless a Judge of the Court otherwise directs, and unless a Judge of the Court thinks fit to give such direction, any such notice of motion shall be dismissed without being heard.

Leave pursuant to order 5 is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.

No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs.

The respondents to pay the Bank's costs of this motion. 38 SACKVILLE AJA: I agree that the inherent jurisdiction of the Court extends to making orders of the kind sought here even after final orders have been made. There can be no doubt that the respondents have abused the process of the Court by filing repeated unmeritorious motions in the Court of Appeal proceedings after the Court made final orders on 2 September 2009. 39 I have some concerns about the utility of the orders in the form proposed by the Bank, since the proposed orders are confined to the filing of notices of motion and the making of oral applications "in these proceedings". Wider orders might well have been sought by the Bank pursuant to the Vexatious Proceedings Act 2008. 40 However, my concerns about the limited scope of the orders do not justify withholding from the Bank the relief it seeks. 41 I agree with the orders proposed by Handley AJA. **********

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