Leeming JA, Kunc J, Mitchelmore JA, Macfarlan JA, Ward P
Source
Original judgment source is linked above.
Judgment (4 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
LEEMING JA: Mr Philip Proietti and his brother Mr Peter Proietti are in dispute. They are registered owners as tenants in common in equal shares of property at Marsfield, which they inherited from their mother. Until relatively recently, Mr Philip Proietti has lived in the property. In January 2022, Mr Peter Proietti applied for trustees to be appointed to sell the property. Those orders were made on 7 July 2022 by the Equity Division of the Court constituted by Kunc J. According to Mr Philip Proietti, the property has been sold and settlement is to occur next month.
In the litigation I shall shortly describe, the applicant Mr Philip Proietti has invariably been the moving party, and I shall refer to him simply as Mr Proietti. Mr Proietti's appeal from the order made on 7 July 2022 was dismissed by the Court of Appeal constituted by Mitchelmore JA, Basten and Griffiths AJJA on 14 October 2022: Proietti v Proietti [2022] NSWCA 234. A stay pending special leave was dismissed by the Court of Appeal constituted by Macfarlan JA on 1 December 2022: Proietti v Proietti [2022] NSWCA 268. On 9 March 2023, the High Court dismissed Mr Proietti's application for special leave, saying that "[t]he decision of the Court of Appeal is plainly correct": Proietti v Proietti [2023] HCASL 15. It is thereby established, conclusively, that the trustees appointed by order of the Supreme Court are entitled to sell the Marsfield property owned by the brothers.
An unsuccessful appeal, and an unsuccessful application for special leave, have not prevented Mr Proietti from bringing proceedings to set aside the order made on 7 July 2022. Far from it.
On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the property. Mr Proietti thereafter sought a stay of the writ of possession, and the setting aside of the orders made by the Court of Appeal dismissing his appeal from the orders appointing the trustees for sale. That application was heard by the Court of Appeal constituted by Ward P and Adamson JA, which dismissed it on 21 April 2023: Proietti v Proietti [2023] NSWCA 76. The trustees sought an order that Mr Proietti pay their costs on an indemnity basis. They also sought an order along the lines of that made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324, requiring Mr Proietti to obtain leave before filing further applications or court processes. The basis for the application was Mr Proietti's threats to continue litigating, including by raising baseless claims of bias against judges, and running applications without reasonable prospects of success. The trustees relied upon a statement made in Mr Proietti's submissions:
To contend that I am re-agitating the same argument that has been dealt with, is to ignore the fact that I have advanced my argument in each proceeding, and the response has either been erroneous or not even addressed the issues. In such circumstances the case cannot rest on these unjust terms. It then becomes appropriate for a litigant to pursue those remedies and actions that are available within the legal framework to arrest the situation as I am in these proceedings. If the courts continue to give unsatisfactory or inadequate reasons for their decisions I will continue to pursue those legal channels that are available under the law.
However, the Court of Appeal rejected this aspect of the trustees' application. Adamson JA who delivered the leading judgment said at [27]:
I am not persuaded that a Teoh direction is warranted. While the applicant's applications to this Court have failed on the ground that this Court lacks jurisdiction to entertain them, it is an extreme step to limit a person's access to the Court and one which this Court would be loath to take in circumstances where the trustees have only recently been appointed: see Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170 at [222] (Ward P, Meagher and Leeming JJA).
Ward P agreed, adding at [1]:
I also agree that it is not appropriate at this stage to issue a Teoh direction. That said, it would be a matter of no little concern if, following the High Court's very clear determination that the Court of Appeal was correct in dismissing Mr Proietti's appeal from the decision of Kunc J at first instance, the applicant were to persist in seeking relief inconsistent with that determination.
However, three days later, Mr Proietti filed a further notice of motion, seeking once again to discharge the orders appointing trustees for sale of the property. It appears that a writ of possession was executed by the NSW Sheriff on 27 April 2023, Mr Proietti was evicted, and the locks changed. In light of what had been intimated in the first paragraph of the judgment delivered three days earlier, the Registrar made directions for Mr Proietti to show cause why an order preventing yet further applications to be made by him without leave should not be made. Mr Proietti was heard in writing and orally against the making of such an order. The Court concluded its judgment (Proietti v Proietti [2023] NSWCA 132) as follows:
35. 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.
36. 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.
37. 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.
38. 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".
39. 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).
40. 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.
On 24 July 2023, Mr Proietti filed a notice of motion, alongside an accompanying affidavit, seeking these orders:
1. Stay of Orders of 7 July 2022 of the Supreme Court.
2. Setting aside of those orders, in addition to 17 November 2022 orders of the Court of Appeal and the 14 June 2023 judgment of Ward P and Adamson JA of that Court.
Plainly the application falls within the scope of the Teoh order made on 14 June 2023. On around 27 July 2023, the Registrar vacated the return date of the motion and advised that it would be addressed in accordance with order 2 made on 14 June 2022. The matter was allocated to me.
On 4 August 2023 I caused my tipstaff to write to Mr Proietti as follows:
Dear Mr Proietti
I refer to your notice of motion and affidavit filed on 24 July 2023. The motion seeks a stay of the orders made on 7 July 2022, and also an order setting aside orders of the Court of Appeal made on 17 November 2022 and 14 June 2023.
Order 2 made by the Court of Appeal on 14 June 2023 applies. That order provides as follows:
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.
Because the notice motion seeks a stay of the orders made on 7 July 2022, order 2 applies. I confirm that the return date of the notice of motion has been vacated, and the papers have been referred to Justice Leeming. In accordance with order 2, you are invited to show cause in writing why the motion should not be summarily dismissed as vexatious and an abuse of process. Please provide any materials within the next four weeks, by Friday 1 September. If the materials are less than twenty pages, they may be emailed to me. If there are of greater length, they should be filed in the registry, but in that event I would be grateful if you could let me know that you have filed them.
On 15 August 2023, Mr Proietti filed 13 pages of submissions and around 100 pages of annexures, most of which were the judgments adverse to him which have been summarised above.
The submissions stated that "a timely decision needs to be made on the matter" because settlement of the sale of the Marsfield property is 15 September 2023. The submission continued:
On that basis I request a decision on the matter by at least 30 September [sic, I read this as August], so as to enable the legal substance to be preserved and not become nugatory. After all the injustice I've been subjected to, please do not deprive me here. Otherwise I truly have been shut out of court, and denied any opportunity for justice and my democratic rights as a citizen in this country. At the very least I request you to inform me of your intention so I can attempt to make other arrangements.
The submissions outline seven reasons why Mr Proietti should not have to show cause. All in substance are Mr Proietti's complaints with the orders made by the Court of Appeal on 14 June 2023. It is said that the "ruling" on 14 June 2023 is by the same two judges who adjudicated on his earlier challenges, that their Honours were wrong to rely upon D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, and wrong to rely on what had been said by the Court of Appeal on 17 November 2022, that their Honours were wrong in their application of rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), that their Honours did not give sufficient reasons to resolve his detailed submissions, and that there is nothing vexatious about his repeated applications because "I am simply attempting to protect my rights and preserve the subject matter under litigation". Mr Proietti claims that "I do not think I need to provide the court anything else as to why I should show cause for the proceedings brought before it. It is the court who brought itself into disrepute, nobody else".
The submissions state that there was an unfair procedure before Kunc J. Mr Proietti says "[t]he omissions at trial level included, no directional hearings, pleadings, a timetable, a court annexed mediation, no formal request for submissions and incorrectly striking out much of my affidavit along with the associated evidence including the annexures and text messages. These are core fundamental obligations that would ordinarily require the orders to be set aside." He says that he has been denied procedural fairness by the Court of Appeal on 21 April 2023 and 14 June 2023, as well as by the High Court. He says that it has therefore become appropriate and correct to set aside the orders in accordance with s 63 of the Civil Procedure Act 2005 (NSW).
The submission concludes:
I have demonstrated in these submissions why the application of 24 July 2023 to have the Supreme Court's 7 July 2022 orders and the Court of Appeal's 17 November 2022 orders and those of Ward P and Adamson JA stayed and set aside, should not be summarily dismissed in chambers as vexatious proceedings or abuse of process. What is required here is urgent action to stop the endemic injustice which started with a denial of unfair procedure reign supreme by allowing my co-owned home, which I have lived in throughout my life to be sold under these circumstances. I have been denied my four year right of residency, fair procedure, an impartial court, proper reasons and accountability, the power the court has to rectify under the statutes, please do not deny me one more time. I beg you.
[3]
Consideration
The issue before me is whether I should dismiss Mr Proietti's motion as vexatious and an abuse of process. The Court of Appeal has power to do so, constituted by a single Judge of Appeal, pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW) read with r 13.4 of the UCPR.
Mr Proietti is bound by order 2 made by the Court of Appeal on 14 June 2023. To the extent that his submission challenges the appropriateness of that order, it is misdirected.
Mr Proietti has challenged the order appointing trustees for sale to the Marsfield property to the Court of Appeal, to the High Court of Australia, and twice thereafter to the Court of Appeal. It is plain from his submissions that he is dissatisfied with the outcome. I proceed on the basis that his dissatisfaction is genuine. But the genuineness of Mr Proietti's sense of entitlement to challenge the order, and indeed to persist in challenging the order despite the decisions adverse to him, is on any view an abuse of process, and is vexatious.
It is an abuse of process, and vexatious, because no litigant is entitled to approach a court again and again seeking the same relief. Mr Proietti is candid about this. He says he is simply attempting to protect his rights and to preserve the subject matter of the litigation. He may be of that view, but it is a view which is wrong as a matter of law. Ordinarily a litigant cannot apply again to the same court for the same relief which has already been refused on a final basis. Quite commonly, a litigant disappointed with the result of a hearing can apply to an appellate court to hear an appeal. Mr Proietti has done this. Sometimes, a litigant dissatisfied with the result of the appeal can apply for special leave to appeal to the High Court. Mr Proietti has done this, too. But no litigant is permitted to apply repeatedly to the same court for the same relief which has already been refused. Even though I do not expect Mr Proietti to accept this, he must appreciate that whenever a court decides a case, at least one litigant will normally be disappointed with the result, and if every disappointed litigant were permitted to apply again and again to the court for the same relief, litigation would never end.
There are occasions when a further application may be made to a court after a final judgment has been given. Those occasions are rare. There is nothing in Mr Proietti's submission to suggest they have been made out in the present case.
Mr Proietti would be well advised to invite a friend whose judgment he respects, or a lawyer at a community legal centre, to read these reasons before taking further steps in what to him is, I well appreciate, a very important matter. However, for the reasons given above, the notice of motion is both vexatious and an abuse of process, and must be dismissed.
[4]
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Decision last updated: 29 August 2023