Proietti v Proietti

Proietti v Proietti - [2023] NSWCA 132 - NSWCA 2022 case summary — Zoe

[4]

JUDGMENT

THE COURT: On 21 April 2023, this Court dismissed an application by Mr Philip Proietti (the applicant on the present application) seeking a review of the refusal by Macfarlan JA of his application for a stay of orders made for a writ of possession to issue in respect of property at Marsfield which is the subject of a dispute between the applicant and his brother, Mr Peter Proietti (Proietti v Proietti [2023] NSWCA 76).
On 24 April 2023, the applicant filed a further notice of motion, seeking in essence the same relief: a stay of the writ of possession (now otiose since the writ was executed on 27 April 2023) and for the allocation of a hearing in which the applicant seeks to set aside a raft of orders made both in this Court and in the Equity Division, including the orders made by this Court on 21 April 2023.
On 1 May 2023, the Registrar of the Court of Appeal made directions in this matter, including a direction that the applicant show cause why a Teoh direction (along the lines of the direction made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324 (Teoh)) should not be made in this matter, and listed both the hearing of the motion and the show cause hearing for 8 June 2023. A Teoh direction had been unsuccessfully sought by the second respondents (the trustees for sale of the Marsfield property pursuant to orders made by Kunc J on 7 July 2022 (see Proietti v Proietti [2022] NSWSC 875), which the applicant wishes to have set aside) when the matter was before the Court in April 2023.
The background to the present application is largely set out in the judgment of Adamson JA in this Court's April 2023 decision and need not here be repeated. Nor is it necessary to set out the powers again invoked by the applicant (r 36.16(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 63(3)(a) of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act)), which were set out by her Honour in that decision. The applicant also here invokes r 36.16(3A) of the UCPR.
The applicant has embarked on a consistent campaign of litigation in relation to his underlying dispute with his brother and clearly cannot accept that the orders he again seeks to challenge (that were made by Kunc J on 7 July 2022 and by the Court of Appeal in November 2022 in Proietti v Proietti [2022] NSWCA 234 (Mitchelmore JA, Basten and Griffiths AJJA)) have been finally dealt with and his avenues for appeal exhausted. The challenge in relation to the orders made in April 2023 is dealt with below.
However, it is relevant at this point (not least in light of the respondents' application for a Teoh direction) to note the following further matters which occurred after the 21 April 2023 decision.
Having filed the present application in this Court on 24 April 2023, the applicant also prepared a notice of motion dated 25 April 2023 which he was granted leave to file in court by Lindsay J sitting as the Equity Duty Judge on 26 April 2023 (2022/00014128), seeking a stay of execution of the writ of possession for "about" seven days "to enable [the applicant] a proper opportunity to prepare for and vacate the property". The trustees believe that the applicant brought that notice of motion before Lindsay J, ex parte and without notice to them, on either 24 or 25 April 2023 and that his Honour on that occasion referred the applicant to a legal practitioner for the purposes of obtaining pro bono legal advice. However, there is no order to that effect recorded on JusticeLink and it is unclear whether there was any pro bono referral (or, if there was, what came of that referral).
On 26 April 2023, Lindsay J heard the applicant's motion in the duty list and dismissed the application, ordering that the applicant pay the trustees' costs on an indemnity basis and that such costs be paid from the applicant's share of the net proceeds of the sale of the Marsfield property. The trustees say that, at that hearing, the applicant refused to provide an undertaking to vacate the Marsfield property within seven days if the trustees agreed to postpone the execution of the writ of possession for such a period.
In their submissions, the trustees say that on 26 April 2023 the applicant served a further notice of motion on the trustees and indicated that he would appear before the Equity Duty Judge on 27 April 2023.
The trustees have advised the Court that, on 27 April 2023, the writ of possession was executed by the NSW Sheriff; the applicant was evicted; and the locks were changed. The trustees for sale are now in possession of the Marsfield property. The fact that the trustees have retaken possession is not in dispute (although the applicant maintains that the orders permitting this should not have been made). The applicant complains that he was "booted out" and that this has had a massive impact on him.
The trustees say that, also on 27 April 2023, the applicant appeared before the Equity Duty Judge and sought to file in Court his notice of motion dated 26 April 2023 and to have it heard instanter. Lindsay J made no orders on that occasion. The trustees advise that they have sought an order from Lindsay J for their costs on an indemnity basis for the hearing of 27 April 2023.
As to the present motion, the trustees for sale (who are now recorded as the registered proprietors of the Marsfield property, as joint tenants, for the purposes of effecting the statutory sale of the Marsfield property) seek orders that it be dismissed with costs, and that those costs be ordered on an indemnity basis and be paid from the applicant's share of the net proceeds of the sale of the Marsfield property. They also again seek a Teoh direction.
On 15 May 2023, the applicant filed written submissions in response to the show cause direction and in support of his application for the setting aside of the various Court orders. In essence, the applicant denies that the proceedings he has brought to date have been vexatious or an abuse of process; and he maintains that he is the victim in these proceedings. He maintains his complaints as to the conduct of the proceedings to date (which he describes as "shambolic") and he continues to make allegations of a denial of fair procedure and lack of impartiality.
The applicant complains that Kunc J's decision contained a litany of errors of fact and law which he says can only be explained by judge bias (contending in oral submissions that the decisions are "too lopsided", "too erroneous" and "just clearly wrong") (see at T 3); and reiterates his complaints as to the November 2022 Court of Appeal decision (again raising allegations of bias). The applicant asserts that "court dysfunctionality is a major reason why these proceedings have not been able to come to a natural end" and says that a Teoh direction would deny him access to the court and be "yet another example of court dysfunctionality and a legal process that has lost its way".
The applicant repeats his complaints as to the dismissal by the High Court of his application for special leave, including as to the lack of an oral hearing or "substantiation for any of their decisions" in a judgment "that does not extend beyond one paragraph", asserting that it is obvious that the High Court has not properly considered the matters raised by him (see Proietti v Proietti [2023] HCASL 15).
The applicant's written submissions also refer to his earlier submissions made in April 2023 before this Court, and make complaints as to the April 2023 decision, which the applicant maintains is incorrect. The applicant submits that it is not sufficient or correct to "defer" to the Court of Appeal or High Court rulings for procedural fairness, as they have been "found" (presumably by this he means by himself, since they have not been overturned in any way) to be erroneous and not substantiated. On that basis, the applicant seeks the April 2023 judgment to be set aside in accordance with r 36.16(3A) of the UCPR and s 63 of the Civil Procedure Act.
The applicant also suggests that he has been discriminated against for making the choice to represent himself in the proceedings.
In oral submissions the applicant conceded that his latest notice of motion is "similar" to the one he brought last time before this Court (except that he now seeks to set aside the April 2023 orders as well as the earlier orders), though he is adamant that he is not seeking to re-agitate the earlier proceedings. The applicant says that his application is "done again on the basis that [he] wasn't afforded procedural fairness at the trial level".
The applicant reiterated his complaints as to fundamental procedural unfairness (including complaints as to directions hearings and lack of a mediation) that he has made before and reiterated his contentions as to the merits of the issues determined by Kunc J (such as that the central issue is his brother's knowledge of the deceased's will and that he had a four year right of occupation that was "revoked in a fraudulent manner" - see T 4). The applicant also complains that the proceedings at first instance were not commenced in the Possession List in the Common Law Division (rather than the Real Property List in the Equity Division), apparently on the basis that the proceedings would have been less "opaque" in the Common Law Division and would not have proceeded as quickly.
The applicant emphasised in his oral submissions that his complaint as to the decision the subject of the present application (i.e., the April 2023 decision) is that this Court "basically relied on the fact that the Court doesn't have the inherent power" (T 5); that he has not received a fair hearing at trial level; and that the procedural irregularities or non-compliance that he has identified means that the orders that have been made should be "cancelled". If that happens, the applicant seeks an order restraining the making of any application under s 66G of the Conveyancing Act 1919 (NSW) for another 12 months (though the effect of such a restriction would be to give the applicant a longer period in occupation of the Marsfield property than even he contends he was entitled to under the unsigned will of the deceased that he contends was fraudulently revoked).
The applicant contends that this Court has overlooked the "key aspects" of the matter (such as his unfair procedure complaints) and has made a ruling that is clearly incorrect.

[5]

Determination

As to the relief sought in the latest notice of motion, r 36.16(3A) of the UCPR provides that if (as here) a notice of motion for the setting aside or variation of a judgment or order is made within 14 days after the judgment or order is entered, the court may determine the matter and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. Therefore, the fact that judgment has been delivered does not preclude the bringing of an application for the variation or setting aside of the April 2023 judgment. However, it is necessary for the applicant to establish a basis for such an order.
Section s 63 of the Civil Procedure Act, which the applicant invoked on his previous application, applies where there is a procedural irregularity affecting a proceeding. As Adamson JA explained in the April 2023 decision at [22], when considering the applicant's application for the 17 November 2022 orders to be set aside, s 63(3)(a) of the Civil Procedure Act is limited to interlocutory, default or consent judgments and does not apply to formal orders regularly made and entered (which can be challenged only on appeal) (her Honour there citing Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [38], [42]-[45] and [48]).
Rule 36.16(4) of the UCPR, which the applicant again invokes, simply provides that nothing in the rule affects any other power of the court to set aside or vary a judgment or order. The applicant relies on this sub-rule in his contention that there is an inherent jurisdiction to set aside the orders he challenges.
It is important to keep in mind that the present application is not (nor could it be) an appeal from the decisions of Kunc J or the Court of Appeal which dismissed the applicant's appeal therefrom. What was before the Court in April 2023 was an application seeking a review of the refusal by Macfarlan JA to stay Kunc J's orders pending the determination of the applicant's application for special leave to the High Court (an application doomed to failure since, by the time of the April 2023 hearing, the High Court had already dismissed that special leave application) and an application to set aside the orders made by the Court of Appeal on 17 November 2022 (that being the aspect of the matter that this Court concluded there was no jurisdiction to entertain). What is now before the Court is, in essence, an application to re-open the April 2023 judgment and to set aside the orders made on that occasion.
In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, Mason CJ emphasised (at 302-303) that the jurisdiction to reopen a judgment is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. His Honour there said that "[w]hat must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases". (See also New Cap Reinsurance Corporation v Grant [2009] NSWSC 950 at [20]; Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1343 at [5] per Barrett J; and Wentworth v Rogers [2002] NSWSC 921.)
Barrett J (at [7]) in Wentworth v Rogers (cited above) noted that there were three matters central to the re-opening jurisdiction: first, whether the applicant has shown that, without accident or fault on the applicant's part, he or she has not been heard on a relevant matter; second, whether the applicant has shown an error in the court's reasoning because of a misapprehension of the facts; and, third, whether the applicant has shown an error in the court's reasoning because of some misapprehension of the relevant law.
In the present case, nothing has relevantly changed in relation to the complaints raised on the last occasion and nothing has been put forward by the applicant to substantiate his complaint that this Court incorrectly determined that application due to some misapprehension of fact or law. "Key aspects" of the applicant's case were not overlooked. Rather, it was neither necessary, nor appropriate, on the disposal of the application then before the Court to address in detail the many complaints raised by the applicant as to procedural irregularities or the like. As Adamson JA noted, many of those complaints were considered and rejected in the November 2022 Court of Appeal decision which the High Court considered to be plainly correct. The fact that the applicant vehemently disagrees with the outcome of those decisions is unfortunate but does not establish that the decisions were incorrect; still less that the conclusion reached by this Court on the stay and review application heard in April 2023 was incorrect.
The notice of motion filed in this Court on 24 April 2023 should be dismissed with costs on the indemnity basis and those costs should be paid from the applicant's share of the net proceeds of the sale of the Marsfield property for the reasons submitted by the trustees.
Further, in our opinion a Teoh direction should now be made.
In Teoh, Handley AJA (with whom Allsop P and Beazley JA agreed) made the following direction at [42]: The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 [in Teoh v Hunters Hill Council (No 3)] [2009] NSWLEC 121[; (2009) 167 LGERA 432] to promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
As this Court made clear in Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 at [222] (per Ward P, Meagher and Leeming JJA), it is "no small thing" for this Court to impose a requirement that an applicant obtain leave before proceeding with any further motion based on the matters he or she has to date litigated; "[r]estricting a person's right to access the courts is an extreme interference with a basic right" (there citing Teoh v Hunters Hill Council; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 and Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230 and Samootin v Shea [2013] NSWCA 312).
Nevertheless, "a Court sufficiently apprised of the relevant facts can act of its own motion to protect itself and prevent abuse of its process"; and the authorities are clear that, where an applicant seeks to file multiple applications seeking in substance the same relief (as the applicant has here done), the Court should act of its own motion to prevent potential abuse of its process (see Teoh at [38]-[39] per Handley AJA; see also, for example, Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [21] per Bell P, as his Honour then was, Basten and Leeming JJA).
The relevant principles as to an abuse of process were set out in Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 (Muriniti v Lawcover) (and affirmed in Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 at [80]-[83] and [91] per Gleeson JA and Griffiths AJA). One of the circumstances in which there will be an abuse of process is where the continuance of proceedings will bring the administration of justice in disrepute (see UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] and [44] per Kiefel CJ, Bell and Keane JJ). As noted at [494] in Muriniti v Lawcover, proceedings may be unjustifiably vexatious and oppressive where it is sought to litigate anew a case already disposed of by earlier proceedings. Matters relevant to such a conclusion were identified in State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 81-423.
The procedural history to the present application well demonstrates the vexatious nature of this application (and earlier applications). Successive proceedings raising the same issues, after those issues have been determined, are vexatious, oppressive and unfair to the other party to the proceedings; and thus will amount to an abuse of process. The very fact that the applicant persists in raising the same complaints as to the relief granted by Kunc J, even after his appeal was dismissed and his application for special leave to the High Court was refused; and has made multiple applications for interlocutory relief (both in the Equity Division and in this Court) in order to resist the execution of the writ of possession, demonstrates his inability to accept the outcome and finality of the Court process.
Upon the High Court's refusal of the applicant's special leave application, the applicant exhausted all avenues available to him to challenge the finality of the decisions made in the Supreme Court and the Court of Appeal. As the trustees correctly note, a central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened (other than in very limited circumstances) (see D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [34] per Gleeson CJ, Gummow, Hayne and Heydon JJ). To permit them to continue has the tendency to bring the administration of justice into disrepute.
On the last occasion, a Teoh direction was not made as the Court was not persuaded it was warranted. The steps that have been taken since then demonstrate that such a direction is indeed now warranted (and necessary) to prevent an abuse of process by the making of multiple applications by the applicant.
The trustees have noted that, in the current proceedings, the applicant made five applications in two months (over the period March to April 2023); and that from the date of the delivery of the judgment by this Court on 21 April 2023, the applicant made three applications in three days. The trustees also note that, in his written submissions in support of his amended notice of motion filed on 5 April 2023, the applicant clearly indicated his intention that "if the courts continue to give unsatisfactory or inadequate reasons for their decisions [he] will continue to pursue those legal channels that are available under the law".
Enough is enough. It is abundantly clear from the applicant's submissions on both the previous occasion and on this occasion, that the applicant considers that he has the right to continue to bring applications seeking to raise the same challenges that have been heard and dismissed (even though he is adamant that he is not thereby re-agitating the submissions previously made) and every reason to think that he will continue to do so. A Teoh direction does not, as the applicant maintains, amount to legal harassment; nor does it preclude access to the Court. Rather, it imposes a procedural requirement to be satisfied before the applicant can burden other parties and the Court with successive applications seeking the same or effectively the same relief as those that have already been finally disposed of; and is consistent with the statutory mandate for the conduct of proceedings with a view to the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act).
For the reasons given above, the Court makes the following orders: 1. Dismiss the notice of motion filed on 24 April 2023 with costs, such costs to be on an indemnity basis and paid out of the applicant's share of the net proceedings of sale of the property at Marsfield in respect of which the Court has appointed trustees for sale. 2. Order that if Mr Philip Proietti files any further application against Mr Peter Proietti or the Court-appointed trustees in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, stay of execution or appeal from the orders of Kunc J dated 7 July 2022, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Philip Proietti should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.

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