Proietti v Proietti

Proietti v Proietti - [2023] NSWCA 284 - NSWCA 2023 case summary — Zoe

Background to the proceedings

Mr Philip Proietti (who I will henceforth refer to as "Mr Proietti") previously lived in a property he inherited (as a tenant in common with his brother) from his mother. In January 2022, his brother, Mr Peter Proietti, applied for trustees to be appointed to sell the property. On 7 July 2022, Kunc J made orders for trustees to be appointed to sell the property.
On 17 November 2022, the Court of Appeal (Mitchelmore JA, Basten and Griffiths AJJA agreeing) dismissed Mr Proietti's appeal from Kunc J's orders: Proietti v Proietti [2022] NSWCA 234. On 1 December 2022, the Court of Appeal, constituted by Macfarlan JA, dismissed an application for a stay pending the outcome of a special leave application to the High Court: Proietti v Proietti [2022] NSWCA 268. On 9 March 2023, the High Court dismissed the application by Mr Proietti for special leave to appeal: Proietti v Proietti [2023] HCASL 15. I note that Mr Proietti apparently seeks an order from this Court that the decision of the High Court be set aside as "they too are bound by the Civil Procedures Act". This submission is misconceived. This Court has no jurisdiction to set aside an order made by the High Court.
On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the property. Mr Proietti sought a stay of execution of that writ, along with orders setting aside the orders made by the Court of Appeal on 17 November 2022 and 1 December 2022. On 21 April 2023, the Court of Appeal, constituted by Ward P and Adamson JA, dismissed Mr Proietti's application: Proietti v Proietti [2023] NSWCA 76. The trustees for sale sought an indemnity costs order and a Teoh order requiring Mr Proietti to obtain leave before filing further applications or court processes about the sale of the property. Their Honours declined at that time the make the Teoh order sought by the trustees: see [1] (Ward P), [27] (Adamson JA).
Three days later, on 24 April 2023, Mr Proietti filed a further notice of motion seeking, again, to set aside the orders appointing the trustees for sale of the property. The Registrar of this Court gave directions for Mr Proietti to show cause why the Court should not make a Teoh order preventing him from making any further applications without leave. On 14 June 2023, the Court, again constituted by Ward P and Adamson JA, determined that a Teoh order was now warranted: Proietti v Proietti [2023] NSWCA 132. Their Honours made 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 and accompanying affidavit seeking a stay of the orders made by Kunc J on 7 July 2022 and the setting aside of the orders made by the Court of Appeal on 17 November 2022 and 14 June 2023. In accordance with the Teoh order, the Registrar of this Court vacated the return date of the motion.
The matter was referred to Leeming JA to determine on the papers. His Honour invited Mr Proietti to show cause in writing why the motion should not be summarily dismissed as vexatious and an abuse of process, in response to which Mr Proietti provided extensive submissions and evidence. On 29 August 2023, his Honour dismissed the notice of motion as vexatious and an abuse of process: Proietti v Proietti (No 3) [2023] NSWCA 199.
On 28 September 2023, Mr Proietti filed another notice of motion seeking "[a]n interlocutory injunction of the disposal of the property" and for "[a]ny Teoh procedure that is to be followed, be done urgently". In accordance with order 2, the matter was referred to White JA, who also invited Mr Proietti to show cause why the motion should not be summarily dismissed. On 20 October 2023, his Honour dismissed the notice of motion as an abuse of process: Proietti v Proietti (No 4) [2023] NSWCA 251. His Honour found that Mr Proietti's submission that no court or judge had addressed issues he raised in regard to a denial of a fair procedure at trial was "manifestly groundless" at [15] and held that "[n]o new issue is raised in Mr Philip Proietti's notice of motion" at [16].
On 13 November 2023, Mr Proietti filed a notice of motion (with an accompanying affidavit affirmed on the same date) seeking the following orders: 1 An expedition of the Teoh Direction given by the court on 14 June 2023 in the matter precluding myself from arguing for a stay and setting aside of the relevant orders. 2 A stay and setting aside of both the Supreme Court's orders of 7 July 2022 and the Court of Appeals of 17 November 2022 on the basis of unfair procedure at trial level. 3 A timely decision so as to avoid an illegal sale of the property and the consequences for all parties concerned.
This application plainly falls within the scope of the Teoh order made on 14 June 2023. On 16 November 2023, the Registrar vacated the return date of the motion and advised the parties that it would be addressed in accordance with that order. The matter was allocated by the President to me.
On 17 November 2023, I caused my associate to write to Mr Proietti as follows: Dear Mr Proietti I refer to your notice of motion filed on 13 November 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. As the notice motion seeks a stay of the orders made on 7 July 2022, order 2 applies. I confirm, as the Registrar informed you via email on 16 November 2023, that the return date of the notice of motion has been vacated. The papers have been referred to Justice Payne. 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. Justice Payne notes your affidavit filed on 13 November 2023, which contains submissions as to why your application in your notice of motion should not be summarily dismissed. His Honour requests that you advise me whether you wish to supplement that affidavit with any other materials. If so, please provide any materials within the next 7 days, by Friday 24 November 2023 at 4pm. 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. (emphasis in original.)

[4]

Consideration

On 24 November 2023, Mr Proietti filed eight pages of further submissions and annexed to them a copy of his application for special leave, which was refused in March 2023, and a copy of the reasons of Macfarlan JA in Proietti v Proietti [2022] NSWCA 268. I have taken into account all of the material filed with the notice of motion and filed on 24 November 2023. That material and Mr Proietti's submissions do not raise any new issue. Mr Proietti submitted, as he had earlier done to Leeming JA and then White JA, that the Teoh order made by Ward P and Adamson JA should not have been made. As White JA correctly pointed out in Proietti (No 4) at [15], Mr Proietti has not applied for special leave from the orders made by Ward P and Adamson JA.
Mr Proietti's latest attempt to challenge the order made by Kunc J on 7 July 2022 is plainly vexatious and an abuse of process as is the attempt to set aside the orders of the Court of Appeal made on 17 November 2022. Mr Proietti has applied, repeatedly, and in essentially the same terms, to set aside the orders made by Kunc J and the Court of Appeal. The substance of Mr Proietti's application relating to these orders was dealt with comprehensively by Ward P and Adamson JA in their Honours' 21 April 2023 judgment. Mr Proietti could have sought special leave to appeal from that decision. He chose not to do so. In the submissions contained within his affidavit, Mr Proietti apparently understands that the issues he is now raising have already been determined adversely to him: The court seems to be claiming vexatious proceedings because I am reagitating or repeating the same issues which have been determined in earlier proceedings. However, this is not vexatious or any abuse of process if those determinations are wrong in terms of the law and facts of the case.
Mr Proietti's submission that no court or judge had addressed issues he raised in regard to a denial of a fair procedure at trial is without merit. No new issue is raised in Mr Proietti's notice of motion, in his affidavit or in his submissions. Mr Proietti's notice of motion filed 13 November 2023 is an abuse of process. It must be dismissed.
Further, given the repeated attempts by Mr Proietti to agitate in this Court essentially the same issues that have already been finally determined against him, the time may have come to consider whether the Court should, of its own motion, consider whether Mr Proietti's claims, either generally, or about any of the matters already determined by the Supreme Court or the Court of Appeal, be the subject of an order under the Vexatious Proceedings Act 2008 (NSW). As Mr Proietti has not been heard about this course of action, I will invite him to make any submissions he wishes about whether the Court should, of its own motion, appoint a hearing to consider whether Mr Proietti's claims either generally or which have been the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with under the provisions of the Vexatious Proceedings Act.
The orders of the Court are as follows: 1. The applicant's notice of motion filed 13 November 2023 is dismissed. 2. Mr Proietti may file by email to the associate of Payne JA, by 4pm on 4 December 2023, submissions of no more than three pages as to whether the Court should, of its own motion, fix a hearing to consider whether Mr Proietti's claims generally, or about any of the matters the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with by an order made under the Vexatious Proceedings Act 2008 (NSW).

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