Proietti v Proietti

Court of Appeal (NSW)|2024-02-22|Before: Bell CJ, Kirk JA, Stern JA, Kunc J, The Hon AM

30 June 2022 - proceedings at first instance

By summons filed on 17 January 2022, Peter sought an order pursuant to s 66G of the Conveyancing Act for the sale of the Marsfield Property. Philip sought to resist Peter's application for a s 66G order by asserting claims in proprietary estoppel, promissory estoppel and contract against Peter.
The procedural background to the first instance proceedings was summarised in Proietti v Proietti [2022] NSWCA 234 at [37]: "(1) On 22 February 2022, the Registrar in the Online Court ordered Philip to file and serve all affidavits on which he relied by 17 March 2022. A directions hearing originally listed for 24 February 2022 was vacated. (2) On 24 March 2022, the Registrar in the Online Court listed the proceedings before the Real Property List Judge on 1 April 2022. A directions hearing originally listed for 24 March 2022 was vacated. (3) On 1 April 2022, Darke J ordered Philip to provide Peter with copies of all the annexures to his affidavit by 6 April 2022, and for Peter to file and serve any affidavit in reply by 12 April 2022. These orders were made by consent, a copy of which Philip electronically signed, along with Peter's legal representative. His Honour stood the matter over to 22 April 2022 for directions and, if appropriate, the allocation of a hearing date. (4) On 21 April 2022, Darke J set the matter down for hearing before Kunc J on 10 June 2022 (with an estimate of half a day) and made the usual order for hearing in accordance with the Real Property List's Practice Note SC Eq 12. The directions hearing listed for 22 April 2022 was vacated. Again, these orders were made by consent, based on dates nominated by the parties on which they were both available, and a copy was electronically signed by Philip."
Philip relied upon an affidavit sworn by him on 16 March 2022. Peter relied upon two affidavits, sworn on 22 December 2021 and 11 April 2022. In respect of Philip and Peter's evidence, Kunc J made the following observations at PJ [6]-[7]: "[6] Both Peter and Philip gave evidence by affidavit. While Philip was given the opportunity to do so, he did not object to any of Peter's affidavit evidence. On the other hand, the Court upheld a large number of objections made by Mr Paterson on behalf of Peter to Philip's affidavit. Philip cross-examined Peter. However, Mr Paterson elected not to cross-examine Philip on his affidavit. [7] By reason of the forensic decision he had taken, Mr Paterson entirely properly submitted that the Court should accept so much of Philip's affidavit that had been admitted into evidence. The Court will do so. Furthermore, other matters are incontrovertibly established by reason of the fact that many of the potentially relevant exchanges between the brothers took place by text messages. To these two sources of evidence may be added some limited concessions made in cross-examination by Peter. These three sources form the basis of the Court's findings of fact set out in the next section of these reasons as uncontroversial facts."
The primary judge also emphasised at PJ [9] that: "…the Court has proceeded only by reference to the affidavit evidence that was admitted together with what emerged in cross-examination. While no disrespect is intended to Philip, as is often the case with self-represented litigants who are not lawyers, much of what Philip said in the questions that he posed to his brother and in the course of his submissions to the Court may well have been material that could have been given in evidence. It was not. The Court accepts Mr Paterson's submission that the Court should not treat anything that fell from Philip by way of what may sometimes be referred to as "evidence from the Bar table" as evidence. The Court has not done so. To do otherwise would be to visit a serious procedural unfairness on Peter and put the Court to the task of attempting to discern what was evidence and what was submission."
The primary judge explained that there were three contested factual matters which were crucial to determining Philip's claims in equitable estoppel and contract (PJ [34]): "(1) Peter both knew of the terms of the 2015 Will including Philip's right to reside and that their mother had removed that provision in the 2016 Will; (2) That Peter had exercised undue influence or duress on their mother to persuade her to make that critical change between the 2015 Will and the 2016 Will; (3) That at a meeting on 18 March 2021, Peter had represented to Philip, or they had agreed, that there would be no sale of the Property until 2023."
In relation to the first factual issue, concerning Peter's alleged knowledge of the 2015 Will, the primary judge held that: "[40] The Court finds that Peter never knew about the 2015 Will. His evidence was consistent on this point. Further, the explanation that he never enquired because his mother was in good health, and he believed it to be none of his concern so long as she was alive, is plausible and accepted by the Court. [41] In contrast, Philip's reasons to suggest the opposite were not persuasive. Philip's inference that Peter knew because he was "thinking about the legal situation" was too long a bow to draw. Similarly, his argument that Peter lacked credibility because he referred to their quarrel in April 2020 as a dispute, whereas Peter called it a minor disagreement, was unconvincing. While an assumption could be drawn that what their mother told Philip she may have told Peter there was no evidence to elevate this beyond speculation."
In relation to the second factual issue, being Peter's alleged undue influence over his late mother, resulting in the changing of her will between 2015 and 2016, the primary judge held at PJ [43] that: "The Court accepts Mr Paterson's submission that there is no evidence whatsoever to support such a serious finding against Peter. That is sufficient to dispose of the argument. The Court's finding in paragraph [40] above that Peter did not know of the 2015 Will before their mother's death fortifies this conclusion."
In relation to the third factual issue, concerning Peter's alleged representation to Philip that there would be no sale of the Marsfield Property until 2023, the primary judge held that: "[51] The Court is not satisfied that any agreement was reached in a conversation between Philip and Peter in March 2021. The text messages are once again silent about any such arrangement and are of no assistance to Philip's case. There is nothing in them to indicate such a conversation ever occurred. Again, to the extent the text messages might evidence anything at all, the silence is more consistent with Peter's evidence that there were ongoing discussions but no agreement reached about when to sell the Property at the end of the Occupation Agreement. Whatever conversations may have taken place between the brothers appear to have gone nowhere until matters were brought to a head in September 2021. [52] Apart from what may be made of the text messages, the Court is left in the position of having only the word of each brother against the other. In such a case, where no independent evidence can be relied upon to distinguish one version of events from another, the question becomes one of onus. It is Philip who bears the onus as the party asserting the estoppel: Sidhu v Van Dyke (2014) 251 CLR 505 at 523 (French CJ, Kiefel, Bell and Keane JJ) and 531 (Gageler J); [2014] HCA 19. He has failed to discharge that onus such that the Court cannot be actually satisfied on the balance of probabilities that there was any agreement to the effect that Peter asserts."
Having determined the key factual issues, the primary judge considered Philip's proprietary and promissory estoppel claims. His Honour noted at PJ [56] that, despite being self-represented, Philip had engaged in thorough research to support his submissions: "It was obvious that, to his credit, Philip had done a great deal of research on the law in relation to proprietary and promissory estoppel. However, with respect, it was not always easy to follow exactly how he put either argument, given that there were no pleadings. What the Court did have was Philip's brief written outline of submissions and then the way he sought to develop his argument as it appears from the transcript of the hearing."
The primary judge rejected Philip's claim in proprietary estoppel holding that: "[60] The Court's factual findings at paragraph [40] [that Peter never knew about the 2015 Will] mean that Philip's case does not succeed on any permutation. The Court is satisfied that Peter never knew of the alleged clause in the 2015 Will nor its change in the 2016 Will. It follows that no duty could arise requiring Peter to inform Philip of the change in circumstances. [61] Even assuming in Philip's favour that Peter knew, no facts have been proven that would have given rise to a duty in Peter to say anything to Philip. To adopt the language of Brennan J in Waltons Stores quoted in paragraph [58] above, there is no evidence that Peter knew or intended that Philip should conduct his affairs on any assumption or expectation of the kind alleged by Philip. Furthermore, Philip had already been informed of the change by his mother, so Peter's alleged silence would not have caused him any detriment."
The primary judge also rejected Philip's promissory estoppel claim at PJ [72], holding that: "As with proprietary estoppel above, Philip's claim in promissory estoppel must fail by virtue of the Court's factual findings at paragraph [51]. The Court is not satisfied that any representation was made by Peter to Philip that Peter would not sell the Property until 2023. The silence on this topic in their text messages is consistent with the conclusion that there were ongoing discussions on the matter but no actual agreement had been reached. On any view, as I have already observed, the silence does not assist Philip. It follows that there was nothing that Philip could be said to have reasonably relied upon, or that a failure to take steps to obtain finance before now is as a result of that reliance."
The primary judge rejected Philip's claim in contract, holding at PJ [75] that: "The evidence does not support the existence of any exchange sufficient to establish a contract between Philip and Peter, even assuming that as a family arrangement between brothers an intention to be legally bound could be inferred. The agreement alleged by Philip was entirely uncertain. The evidence does not support a finding of consensus ad idem between the brothers on essential matters such as how long Philip could reside in the Property and on what terms such as payment of rent, insurance and outgoings. By Philip's own admission (see paragraph [73] above) the payment of rent was only something he considered "implicit"."
In turn, the primary judge held that a s 66G order should be made to facilitate the sale of the Marsfield Property by trustees.
On 7 July 2022, the primary judge made the following orders: "1. Orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) that Messrs Joseph Peter Dominello and Ian Colwell Miller, … ("the Trustees") be appointed jointly and severally as trustees for the sale of the property… 2. Order that the Property be vested in the Trustees on the statutory trust for sale under Division 6 of Part IV of the Conveyancing Act 1919. 3. Order both the Plaintiff and the defendant to co-operate with the Trustees and any agent appointed by the Trustees for the sale of the property… 4. Order the defendant to give vacant possession of the property to the Trustees by 16 October 2022. 5. Order that upon completion of the sale of the Property pursuant to order 2 the Trustees distribute the proceeds in the following manner… … 8. Order the defendant to pay the plaintiff's costs of the proceedings, such costs to be dealt with in accordance with Order 5(e). 9. Subject to order 10 stay orders 1, 2, 4 and 8 up to and including 25 July 2022. 10. If on or before 25 July 2022 the defendant has filed: (a) a notice of appeal; and (b) a notice of motion with supporting affidavit for an extension of the stay in Order 9, then that stay shall continue until further order of the Court of Appeal. 11. NOTE the Court has informed the defendant that he should not assume, if his notice of motion referred to in Order 10(b) or his appeal is unsuccessful, that the Court will grant a further period as long as 3 months for him to vacate the Property by reason of the time that will have passed due to his appeal." …

17 November 2022 - appeal

On 25 July 2022, Philip filed a Notice of Appeal and a Notice of Motion for an extension of the stay which was granted by Kunc J on 7 July 2022 (see Order 9 outlined in [49] above). The appeal and Notice of Motion were heard by Mitchelmore JA, Basten AJA and Griffiths AJA, on 14 October 2022: Proietti v Proietti [2022] NSWCA 234.
Philip raised six grounds of appeal from the primary judge's orders, arranged under headings entitled: (i) judicial process; (ii) affidavit; (iii) bias judge; (iv) errors of law; (v) further evidence; and (vi) non-compliance dismissal.
In relation to Ground 1 of the appeal, Mitchelmore JA (with whom Basten and Griffiths AJJA both agreed) summarised Philip's arguments as follows: "[69] Philip submitted that without directions hearings, pleadings, or a mediation, he was not given the opportunity to argue his case properly and was at a "severe disadvantage" in presenting his defences. [70] Philip submitted that directions hearings were essential to the parties being able to "accurately gauge the true nature of the case" and that, because he received no "substantive guidance" from the Court, he was taken by surprise at the hearing, and critical elements required to argue his case were denied. Although he accepted in his written submissions that he agreed to the vacation of the initial directions hearing, he did not realise that this would prejudice his case and that he should not have to bear the consequential unfairness that occurred. As to this and other directions hearings, Philip relied on two provisions of the Civil Procedure Act 2005 (NSW), ss 57(1) and 62(4), which provide for the "just" determination of the proceedings and refer to each party's entitlement to a fair hearing, including that parties must be given a reasonable opportunity to lead evidence, make submissions, and present a case. [71] Philip submitted that the lack of directions led to no pleadings being undertaken; and it was "absolutely essential" for pleadings, to define the issues. The absence of pleadings made the task of preparing his affidavit more difficult; and it ultimately meant that the case he was presenting "lacked the establishment of what the issues were and how the evidence and facts supported [his] argument". Philip also complained that there was no formal request for him to file written submissions. Although he prepared written submissions, Philip said that he did not prepare those submissions "to the extent that [he] would have" if he was aware of "how unprepared [his] case was"."
Mitchelmore JA rejected Peter's arguments concerning procedural fairness, holding that: "[77] On my review of the procedural history of the matter, I do not consider that Philip was denied procedural fairness in any of the respects that he has identified. As to Philip's first complaint, regarding the absence of pleadings, it is important to appreciate that not only did the respondent's application not require pleadings, the respondent in fact was required to commence the proceedings by summons: see UCPR rule 6.4(1)(i). A requirement for pleadings would involve a departure from the ordinary rules in a case of this nature. The party seeking the pleadings would need to apply for them and support their necessity, including by reference to the efficiencies pleadings would achieve in the particular case, bearing in mind the overriding purpose of the Civil Procedure Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56(1). [78] Having regard to the procedural framework in which the proceedings were commenced, the difficulty with a complaint about the absence of pleadings is that Philip does not appear to have raised this issue, at least not before the hearing of this appeal. It may be for this reason that Philip also impugns the conduct of the directions hearings, by which, he says, he was denied what he describes as "substantive guidance". In DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 at [99], White JA held that "the obligation to inform a self-represented litigant about matters of practice and procedure, so far as is reasonably practicable, for the purpose of ensuring a fair trial, is an obligation of the Court, not only of the individual judge hearing the proceedings". However, as Beazley JA recognised in Hamod v New South Wales [2011] NSWCA 375 at [312] (Giles and Whealy JJA agreeing), "it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant". [79] If Philip's complaint that he was not given substantive guidance in directions hearings is a call for judicial advice, the Court could not give him that advice, nor could the Court conduct his case on his behalf. If Philip's complaint is more limited to matters of practice and procedure, paragraph 5 of Practice Note SC EQ 14 requires legal practitioners and self-represented litigants to register to access the Online Court. Paragraph 8 provides that all matters in the Equity General Registrar's List, in which the primary proceedings were originally filed, are automatically entered into the Online Court and are to be managed through the Online Court unless the Court otherwise orders… [80] In the course of the hearing in this Court, Philip accepted that he received the orders made through the Online Court, and that he consented to them being made. Although he alleged that "there was some type of threat" involved in this process, he did not specify the nature of that threat or otherwise provide any evidence to support a threat being made. In circumstances where Philip consented to the directions that were made, that he now considers he was ill-advised to do so is not a matter that gives rise to procedural unfairness on the part of the court. A self-represented litigant is "subject to the practice and procedure of the court as much as any other litigant": Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 at [71] per Buss P, Murphy and Vaughan JJA. … [82] In relation to Philip's complaint about there being no mediation, s 26 of the Civil Procedure Act provides that, if it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned: see Practice Note SC Gen 6 at [5]. Section 26 is not mandatory, and is conditional on the Court forming the view that the circumstances of the case are appropriate… [83] The absence of a mediation did not give rise to procedural unfairness. As the primary judge noted to Philip in the course of his submissions during the hearing, Philip was not precluded from speaking to Peter; indeed, his Honour encouraged them to keep talking."
In relation to Ground 2 of the appeal, Philip contended that: "(1) he was not given an opportunity to object to Peter's affidavit on the day of the hearing; and (2) Peter waited until the last minute to object to Philip's affidavit and he was not given a fair opportunity to address the issues raised."
Mitchelmore JA rejected both arguments. As their Honours noted, Philip received a copy of the Court Book in advance of the hearing at first instance. Furthermore, Philip was provided the opportunity on appeal to consider the primary judge's ruling, and to make submissions on why the evidence which was rejected by the primary judge should have been admitted. Mitchelmore JA rejected Philip's contention that the primary judge was erroneous in excluding the impugned evidence at first instance.
In relation to Ground 3 of the appeal, Philip alleged that the primary judge was biased, either in the actual or apprehended sense. Mitchelmore JA rejected Philip's claim of actual bias at [96], holding that: "Having carefully reviewed the whole of the transcript of the hearing before the primary judge, I do not consider that this or any other passage indicates that his Honour approached the evaluation of Philip's evidence or his submissions with a committed conclusion that was incapable of alteration. To the contrary, the transcript shows that his Honour sought to engage with Philip about his defences, to understand how Philip put his case and to raise issues with Philip about his case, for his consideration and response." Her Honour also rejected Philip's apprehended bias submissions at [98]: "…Philip failed to identify anything that might have led the primary judge to decide the matter other than on its legal and factual merits. The fact that the primary judge did not accept his arguments does not give rise to an apprehension of bias."
In relation to Ground 4 of the appeal, Philip alleged that the primary judge erred in finding that Peter lacked knowledge of the 2015 Will. Mitchelmore JA rejected this contention, holding that: "[108] The impugned finding that was central to Philip's proprietary estoppel claim was a question of fact, based on a credibility finding. In cross-examination, Peter unequivocally denied that he knew anything about the 2015 Will at any time before Miranda died. His Honour considered that Peter's evidence on the point was consistent and accompanied by a plausible explanation as to why he never asked about his mother's will: [40]. Philip's submission that Peter not only knew about the 2015 Will, but was responsible for removing from the 2016 Will the clause benefiting Philip, entails speculation and conjecture in the face of Peter's direct and consistent denial of knowledge. In accepting Peter's evidence in this regard, the primary judge had the advantage of seeing Peter give the evidence and forming an impression of him. Philip's submissions do not demonstrate a glaring improbability as to Peter's account, or compelling inferences to the contrary, such as would enable this court to reach a different conclusion to that reached by the primary judge: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. In fact there was no sound foundation for the challenge to the judge's finding as to Peter's credibility. [109] Further, and in any event, Philip's claim that he relied to his detriment on Peter's failure to tell him about the change from the 2015 Will cannot be sustained in the face of his evidence that he had been told, before his mother died, that she had changed her will… [110] As the primary judge found, there was nothing to suggest that Philip's mother would have acquiesced in changing the will back because, as his Honour accepted, "it is entirely possible that she removed the clause of her own volition and for her own reasons": at [63]. Philip's subsequent "realisation" amounted to no more than speculation on his part about his mother's intention; his affidavit evidence in this regard was properly rejected by the primary judge on the basis that Philip could not give evidence of what might have been in his mother's mind at any given time. Philip's deduction, on learning of a subsequent will, that Peter was responsible was also not evidence. The challenge must be rejected. [111] In relation to Philip's promissory estoppel claim, I have set out at [60] above the primary judge's conclusion. Again, there was no legal error. In circumstances where his Honour had competing evidence about the existence of an agreement in the terms Philip alleged, and the text messages were at best neutral, in his Honour's view, Philip had not discharged his onus. Although Philip sought to argue to the contrary, the absence of text messages regarding sale of the Marsfield property does not constitute positive support for Philip's claim that his brother had promised that he could remain in the property until 2023. The evidence, including the text messages, does not disclose any error in his Honour's conclusion. The claim in contract, which was also based on Peter having made a representation that Philip could live in the home in Marsfield until 2023, failed for the same reason before the primary judge and also fails in this Court."
Grounds 5 and 6 of the appeal were dismissed on the following basis: "Grounds [sic.] 5: Further evidence [112] As noted above, rather than allege error by the primary judge, Ground 5 was in effect an application under rule 51.51 of the UCPR to adduce further evidence. Philip submitted that if the appeal were allowed, further evidence could be provided to prove Peter's knowledge and undue influence. Philip referred in this context to, "[p]otentially, witness accounts, subpoenas can be organised, to prove knowledge and undue influence" and that "further circumstantial evidence can certainly be gathered to further prove those key issues, or any aspect of the case which are deemed not fully established". The only foreshadowed evidence as to which Philip provides some specificity is that which could be given by Miranda's former solicitor, to the effect that the 2015 Will was signed. As to that specific evidence, I have set out above how the primary judge dealt with the 2015 Will and the proprietary estoppel claim. Further evidence from the solicitor of the nature to which Philip refers would not assist Philip to make good the fundamental proposition on which his proprietary estoppel claim rested, namely, that Peter knew about the 2015 Will, noting that the primary judge proceeded on the basis that the 2015 Will had been signed. Ground 6: Non-compliance dismissal [113] To the extent that Ground 6 challenges the appropriateness of orders being made under s 66G of the Conveyancing Act, that issue has been addressed above. There is no basis for this Court to accede to Philip's request that "the case be dismissed as it should have been in the first instance". Similarly, Philip's challenge to the order that he pay Peter's costs of the proceedings below was premised on the basis that an order under s 66G was unfair. There is no reason why costs should not have followed the event in the court below."
The Court dismissed the appeal, and ordered that orders 1, 2, 4 and 8 (see [49] above) be stayed for 28 days from the date of judgment. The Court also dismissed a further Notice of Motion filed on 25 July 2022, which sought the following orders: "1 Extension of stay order, in lieu of Notice of Appeal. 2 Extension of stay order, in lieu of intention to contest the will, if appeal is not granted."

14 December 2022 - application for extension of stay

By Notice of Motion filed on 1 December 2022, Philip sought an extension of the stay orders made by the Court of Appeal (see [59] above) pending his special leave application to the High Court of Australia: see Proietti v Proietti [2022] NSWCA 268.
Macfarlan JA rejected the application for an extension of the stay, explaining that: "[5] Before me, the Applicant's submissions largely constituted a repetition of arguments with which this Court dealt in its judgment, with little, if any, regard being paid to the Court's reasoning. [6] I have read the Applicant's application for special leave to appeal and carefully considered the oral submissions he made to me, but I can see no point that is arguable in his favour and that might give him a prospect of obtaining special leave to appeal. That includes his assertions of procedural unfairness on the part of this Court in hearing his appeal. These are completely unsubstantiated and are typified in their lack of merit by his following contention concerning the judgment: "The judgement [sic.] is written solely by Justice Mitchelmore with the other two agreeing by signature. It is he [sic] who I deemed to be biased [as, a result of the judge's behaviour during oral argument] and it is difficult to believe all the judges would have had the same view when they would seem controversial to say the least [sic]. It is on this basis that I form the view of court bias, and thus the conclusion of court dysfunctionality". [7] In light of what I see as the absence of merit in the proposed appeal to the High Court, my view is that the Applicant has no significant prospect of obtaining a grant of special leave to appeal. I have accordingly decided that his application for a stay extension should be refused, with costs."
His Honour also noted at [8] that Philip's claimed right to four years of occupation at the Marsfield Property would likely have elapsed by the time that any decision of the High Court would be made, rendering the special leave application somewhat futile.

9 March 2023 - special leave application to the High Court

On 9 March 2023, Gordon and Steward JJ refused Philip's application for special leave to appeal: see Proietti v Proietti [2023] HCASL 15. Their Honours held at [1] that: "The applicant has not identified a question of principle of general importance sufficient to warrant a grant of special leave to appeal and otherwise advances no arguable ground of appeal against the decision of the Court of Appeal of the Supreme Court of New South Wales (Mitchelmore JA, Basten and Griffiths AJJA agreeing) dismissing the applicant's appeal from the decision of the Supreme Court of New South Wales (Kunc J). The decision of the Court of Appeal is plainly correct. Special leave should be refused." (emphasis added.)

Events following refusal of special leave

On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the Marsfield Property.
On 14 March 2023, Philip applied for the leave to be revoked. Lindsay J refused to make an order in response to the application.

5 April 2023 - Notice of Motion

By Amended Notice of Motion filed on 5 April 2023, Philip sought the following orders from this Court: "1 A stay of the Supreme Court's orders of March 10, for the Writ of Possession of my property. The application is made under section 46(4) of the Supreme Court 1970 to review the refusal of a stay by Macfarlan JA and pending the determination of the setting aside of the 17 November 2022 orders of the Court of Appeal. 2 The setting aside of the 17 November 2022 Court of Appeal orders under UCPR 36.16 (4), and the Civil Procedure Act 2005 section 63(3)(a)." In substance, the first order sought to review Macfarlan JA's refusal of Philip's application for a stay. The second order sought to set aside the orders made in the appeal proceedings on 17 November 2022.
The first order was refused by Adamson JA (Proietti v Proietti [2023] NSWCA 76 at [17] (Ward P agreeing)) on the basis that: (i) the stay application before Macfarlan JA would only operate until the special leave application was decided; and (ii) the special leave application had been refused.
The second order was also refused since Philip had now exhausted all available avenues to appeal against the orders of the primary judge. Adamson JA held at [20]: "It is a fundamental principle that "no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up": Bailey v Marinoff (1971) 125 CLR 529 at 530-531…. Thus, this Court does not have jurisdiction to review the orders made by the Court constituted by Mitchelmore JA, Basten AJA and Griffiths AJA. The only avenue available to the applicant was to challenge these orders by applying to the High Court for special leave. He took this course and was unsuccessful. In these circumstances, no further challenge can be made to the orders made by this Court on 17 November 2022."
Her Honour also rejected an argument advanced by Philip by reference to s 63 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), holding at [22] that: "Section 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 only be challenged on appeal: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [38], [42]-[45] and [48] (Allsop P, Campbell JA and Handley AJA). Thus, this Court has no power to set aside the orders it made on 17 November 2022. The applicant's right to challenge such orders required a grant of special leave to appeal to the High Court, which has been refused."
In the course of this application, the trustees for the sale of the Marsfield Property also sought a Teoh direction in relation to future proceedings by Philip (Teoh direction): see Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. The application was made on the basis that Philip was likely to continue instituting proceedings in relation to the Marsfield Property, thwarting the trustees' capacity to sell the Marsfield Property. Adamson JA declined to give a Teoh direction on that occasion, explaining at [27] that she was: "…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)."

24 April 2023 - Notice of Motion

On 24 April 2023, three days after Ward P and Adamson JA had dismissed the Amended Notice of Motion of 5 April 2023, Philip filed a further Notice of Motion, seeking a stay of the writ of possession over the Marsfield Property, and seeking to set aside various orders made by Kunc J and the Court of Appeal in the appeal from his Honour's orders.
In a judgment delivered on 14 June, the Court (again constituting Ward P and Adamson JA) explained that the orders sought in the Notice of Motion were "in essence the same relief" as that sought in the previous proceedings: see Proietti v Proietti [2023] NSWCA 132 at [2].
In the reasons, their Honours noted that: 1. Philip had filed an additional Notice of Motion dated 25 April 2023 seeking a stay of execution for "about" seven days, and that, on 26 April 2023, Lindsay J as duty judge in the Equity Division, heard and dismissed that motion, ordering costs on an indemnity basis. 2. on 27 April 2023, the writ of possession was executed by the NSW Sherriff, resulting in Philip being evicted from the Marsfield Property and the trustees for sale being in possession of the Marsfield Property. 3. on the same day, the trustees asserted that Philip appeared before the Equity Duty Judge, seeking to file a further Notice of Motion dated 26 April 2023, and have it heard instanter but that Lindsay J made no orders in response to this application. 4. on 1 May 2023, the Registrar of the Court of Appeal directed Philip to show cause as to why a Teoh direction should not be made.
In dismissing Philip's Notice of Motion of 24 April 2023, Ward P and Adamson JA explained at [28] that: "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 Court concluded at [30] that a Teoh direction should be made against Philip noting that such a direction was "no small thing", given its function of restricting an individual's "right to access the courts": at [32]. However, it was observed at [33] that: "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 [(No 4)] at [38]-[39] per Handley AJA; see also, for example, Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [21]…"
An abuse of process arises, the Court explained at [34], where continuing proceedings "will bring the administration of justice into disrepute": see UBS AG at [1] and [44]. The Court also observed at [34], conformably with long established authority, that proceedings can be "unjustifiably vexatious and oppressive where it is sought to litigate anew a case already disposed of in earlier proceedings".
Their Honours then said at [35]-[39]: "[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)."
The Court dismissed Philip's 24 April 2023 Notice of Motion on 14 June 2023 and made the following orders at [40]: "(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."

24 July 2023 - Notice of Motion

Some 5 ½ weeks later, on 24 July 2023, Philip filed a further Notice of Motion, seeking the following 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."
Given that the application fell within the scope of the Teoh direction made on 14 June 2023, the Registrar vacated the return date of the motion and advised that it be addressed in accordance with order 2 made by this Court on 14 June 2022.
In turn, Leeming JA's tipstaff wrote to Philip, explaining that, in accordance with order 2, he was "invited to show cause in writing why the motion should not be summarily dismissed as vexatious and an abuse of process".
Leeming JA summarised Philip's contentions in Proietti v Proietti (No 3) [2023] NSWCA 199 as follows: "[13] 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". [14] 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)."
Leeming JA dismissed Philip's Notice of Motion on 29 August 2023, explaining that: "[19] 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. [20] 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."

28 September 2023 - Notice of Motion

On 28 September 2023, just under a month after Leeming JA had dismissed Philip's Notice of Motion of 24 July 2023, Philip filed a further Notice of Motion seeking the following orders: "1. An interlocutory injunction of the disposal of the property, pending a stay and setting aside of the relevant orders. 2. Any Teoh procedure that is to be followed, be done urgently, so as to enable a hearing on the matter before transfer of title or the distribution of proceeds to the beneficiaries."
On 5 October 2023, White JA's associate sent a letter to Philip inviting him to show cause as to why his application was not an abuse of process or vexatious.
White JA summarised Philip's arguments and dismissed his Notice of Motion on 20 October 2023 as vexatious and an abuse of process (Proietti v Proietti (No 4) [2023] NSWCA 251) explaining that: "[15] In response to that correspondence, Mr Philip Proietti advised that he did not wish to provide the Court with other supplementary material, but summarised the materials on which he relied. This included earlier materials that had already been considered in the various earlier applications before the Court. He also relied upon his affidavit of 25 September 2023, the substance of which was again to rely upon s 63 of the Civil Procedure Act 2005 and r 36.16(4) of the UCPR. He again referred to principles concerning the fair procedure to be provided to a self-represented litigant… as he had done in his application for special leave to appeal to the High Court. He submitted that the order of Ward P and Adamson JA that made the Teoh direction was incorrect. No application for special leave to appeal from the orders of Ward P and Adamson JA has been filed. The direction is binding. He submitted that no court or judge had addressed the issues that he had raised in regards to a denial of a fair procedure at trial. That contention is manifestly groundless. It was addressed in the reasons of Mitchelmore JA, with whom Basten and Griffiths AJJA agreed, which was the subject of the unsuccessful application for special leave to appeal to the High Court. [16] No new issue is raised in Mr Philip Proietti's notice of motion. It is an abuse of process. [17] For these reasons I order that the applicant's notice of motion filed 28 September 2023 be dismissed."

13 November 2023 - Notice of Motion

On 13 November 2023, just over three weeks after White JA's decision, Philip filed a further Notice of Motion 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."
On 17 November 2023, Payne JA's associate invited Philip to provide submissions concerning why the Notice of Motion should not be deemed vexatious and an abuse of process.
Payne JA observed that Philip's submissions "do not raise any new issue" (Proietti v Proietti (No 5) [2023] NSWCA 284 at [12]) and dismissed the Notice of Motion as vexatious and an abuse of process: see [13]-[14]. His Honour continued, explaining at [15] that: "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)."
On 27 November 2023, Payne JA ordered at [16] that: "(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)."

14 December 2023 - directions hearing

On 14 December 2023, Ward P held a directions hearing to list the matter for oral hearing on 22 February 2024 in order for the Court to consider by its own motion whether it should make a vexatious proceedings order against Philip.

Consideration

Given that the trustees did not wish to be heard on the Court's motion, Ward P determined that an amicus curiae should be appointed to assist the Court. To that end, Ms Laina Chan and Ms Michelle Meares appeared as amici curiae and filed very helpful written submissions supplemented by brief oral submissions. The Court is grateful for the assistance provided by them. They submitted that the following five sets of proceedings could fairly be characterised as vexatious and were capable of sustaining the making of a vexatious proceedings order: Proietti v Proietti [2023] NSWCA 76; Proietti v Proietti [2023] NSWCA 132; Proietti v Proietti (No 3) [2023] NSWCA 199; Proietti v Proietti (No 4) [2023] NSWCA 251; and Proietti v Proietti (No 5) [2023] NSWCA 284. It is this set of five proceedings which constitutes the proceedings to be assessed as potentially vexatious (within the first of the four steps identified above at [25]).
Philip filed detailed written submissions opposing the making of any orders under the VPA, and advanced oral submissions for nearly 90 minutes in elaboration of his written submissions and also by way of reply to Ms Chan's brief oral submissions.
Philip submitted that each of the five proceedings identified at [92] were not vexatious for two main reasons: first, that the proceedings were instituted to pursue justice, consistently with s 56 of the Civil Procedure Act; and second, Philip contends that the five proceedings cannot involve a re-agitation of issues where the earlier decisions were erroneous in fact and law, and thus remain unresolved.
Both of these arguments have as their underpinning an implicit asserted entitlement to continue to litigate until Philip secured what he considers to be the satisfactory result. There is no such entitlement. Moreover, he equates that satisfactory result with one in which his arguments in relation to the Marsfield Property succeed. That is equally untenable. Philip's statement in [5] of his written submissions in this Court well captures his mindset: "The inevitable injustice that has occurred has forced myself to pursue neverending litigation to preserve my rights and for justice to prevail." (emphasis added.)
The tenor of Philip's submissions can also be discerned from the following passages of transcript from the hearing of the application: "I'm not the one that's vexatious, it is the Courts. You're avoiding the issues. You're not dealing with them. That makes you vexatious, not me. I don't see any aspect of my vexatiousness. I then list all of the examples of vexatiousness. I make the ten points there. I won't go through them again, but that's the thrust of it. The thrust of it is that you're the one guilty of vexatiousness, you're the one guilty of abuse of process, not me, and that is what's led to this current situation, proceedings going on and on and I'm supposed to accept it like you're God and I'm your servant, you know, and then you ask me, well, are you just going to keep going on. I'm just asking for justice. …. I am being denied my proprietary rights, and the evidence points to the facts that I'm the one who is not receiving a fair go here. I'm just pursuing justice. The other point of bringing it into disrepute, the finality of it, well, that's not the point. The point here is that the disrepute is coming from the Courts. BELL CJ: Yes, you've made that point. APPELLANT: Yes, well, I'm making it again. … The real culprit that has led to these prolonged proceedings are the Courts, not I. All I've done is pursue justice rightfully. It is the Courts that have engaged in vexatious behaviour by denying me such. Issues of re‑agitation and abuse of Court are irrelevant when there are clear errors. The issues are not being addressed. To institute a vexatious order proceeding [sic.] on this basis would be an intolerable outrage that cannot be sustained. It is I who is being oppressed throughout proceedings. The denial of fair procedure, an impartial Court, just decisions in regards to my estoppels, the granting of s 62 orders, not recognising the Court's inherent power, my entitle to invoke through s 63 to correct the endemic injustice. … I ask the Court to act in a just manner, acknowledge the mistakes that have been made that has led to this situation. It is my democratic right to a fair hearing, proper reasons from the Court, and a just determination of proceedings. That's it."
At a later point in the oral hearing, the following interaction occurred in relation to Philip's submission that Kunc J had manifested bias against him in the original hearing: "BELL CJ: This is a matter you argued in the Court of Appeal before Mitchelmore JA and Basten AJA and Griffiths [A]JA; correct? APPELLANT: Yes, correct. BELL CJ: They gave you a judgment with reasons. APPELLANT: And I'm going over the judgment. That's part of what I'm saying. I'm challenging their judgment. BELL CJ: This is not the occasion to challenge their judgment. You've done that in the High Court. APPELLANT: We've done that in the High Court. So you're saying that I can't challenge their decision? BELL CJ: Is that what you're seeking to do? APPELLANT: Yes. BELL CJ: All right. You're seeking to challenge the High Court's decision and the Court of Appeal's earlier decision on bias; is that what you're seeking to do? APPELLANT: I am challenging the Court of Appeal's decision, I am not challenging the High Court's decision, okay. I'm challenging the High Court's decision in the High Court. I'm challenging your decision. BELL CJ: Yes, all right, thank you."
In his written and oral submissions, Philip criticised the decision of the High Court to reject his application for special leave to appeal and complained that the High Court's decision lacked detailed reasoning. His complaint was made without appreciating that "…the jurisdiction [the High Court] exercises in determining an application for special leave to appeal 'is not a proceeding in the ordinary course of litigation' but 'a preliminary procedure recogni[s]ed by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention'": Bromley v The King [2023] HCA 42; (2023) ALJR 84 at [1]. This jurisdiction involves a "wide discretion [which] can commonly be exercised without the provision of detailed or, sometimes, any reasons": Coulter v The Queen (1988) 164 CLR 350 at 359-360; [1988] HCA 3; cf Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49 at [25].
Philip also refused to accept that this Court had no power to review the High Court's decision, despite this being politely pointed out to him from the Bench. He argued that s 63 of the Civil Procedure Act would allow this Court to reopen the High Court's rejection of his special leave application: "Like I've said, the High Court's decision, so it's basically the deferment to the High Court and that's just not appropriate because they haven't given sufficient and accurate reasons and they, too, can be set aside."
Philip contended that the asserted lack of natural justice or procedural fairness afforded to him created an exception to the principle that a court cannot review its own final and perfected orders. A threshold difficulty with this argument is that Philip's claims to have been denied procedural fairness before Kunc J were heard and rejected by the Court of Appeal in November 2022: see [50] above. As the High Court confirmed when determining the special leave application, that decision was "plainly correct" (see [63] above).
The asserted denials of procedural fairness related to the fact that directions hearings had not been held prior to the trial, that Kunc J had made certain evidentiary rulings rejecting portions of his evidence, and that the case had not proceeded on pleadings. These matters were once again rehearsed in this Court, and have no merit whatsoever, putting aside that they have already been fully dealt with in this Court's earlier decisions. Directions were given prior to the hearing to which Philip consented. Whether or not a matter properly commenced by Summons proceeds on pleadings or points of claim is quintessentially a matter for the list or trial judge or registrar. If any matters were appropriate for pleadings, they were the claims in estoppel and contract made by Philip himself by way of his cross-claim. He did not need pleadings for the purpose of making his own arguments.
As this Court held in Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], "[d]isagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias"; see also Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]. The same observation may be applied to allegations of apprehended bias, as continued to be made by Philip in the present case.
Furthermore, Philip's reliance on s 63 of the Civil Procedure Act was hopeless and, in any event, had been rejected by Adamson JA and Ward P in April 2023: see [69] above. Leeming JA also rejected such an argument: see Proietti v Proietti (No 3) [2023] NSWCA 199 at [20], extracted at [82]-[83] above.
Philip's written submissions, with respect, recall the observations of the Court of Appeal in Macatangay at [6], namely that "it is fair to say that the various contentions contained in the document are precisely the same contentions that she has been advocating in the various proceedings that she has instituted since the decision of Grove J and in all of which she has been unsuccessful."
It is clear that Philip has been deeply affected by the outcome of the proceedings before Kunc J and the rejection of his appeal to the Court of Appeal. That is the fate of many litigants. As the above extracts of the transcript make plain, one of his much-repeated submissions was that it is he who is being oppressed by the Courts and not the other way around. His persistent subsequent applications to this Court illustrate the strength of his feeling about the adverse result he sustained. As he submitted during the oral hearing on 22 February 2024: "…the context of it is that my home has been sold unjustly. So I'm just trying to stop it. It's my home. I'm being denied fair procedure, impartial Court, the amount of power, that's the quality of it."
As difficult as the outcome of the litigation may be for him to accept, however, that does not mean that justice has been denied to him, and that he may continue to litigate until he succeeds. Such conduct is, as has been held, an abuse of process, and oppressive to those with legal responsibility for the sale of the Marsfield Property and his brother, Peter.
In a number of the judgments to which reference has been made above, various judges have characterised Philip's applications as involving an abuse of process or as the proceedings being manifestly groundless or hopeless.
In Zepinic at [17], Simpson AJA said for the Court: "On a number of occasions this Court has emphasised the need for a judge determining an application for vexatious proceedings order to deal individually with each proceeding said to come within the s 6 definition: see, for example, Viavattene at [49], [67]. In that case, a concession was made by the Attorney-General, who was the applicant, that the failure to take that course was an error. Subsequent examination by this Court exposed why the error was significant: a number of the instances relied on by the Attorney-General at first instance as vexatious did not stand up to scrutiny."
We are satisfied, independently of the views expressed in the five relevant prior proceedings, that they merit the characterisation of being vexatious proceedings within the meaning of s 6 of the VPA. In relation to the first of these proceedings (Proietti v Proietti [2023] NSWCA 76), the first aspect of the relief sought was plainly bound to fail as the relief sought was a stay pending determination of the application for special leave to appeal. That application had been determined adversely to Philip prior to the hearing in the Court of Appeal before the President and Adamson JA. This aspect of the proceedings was pursued "without reasonable grounds". In relation to the balance of the relief sought, it was predicated on the same arguments that had been rejected in the earlier Court of Appeal proceedings in which the leading judgment had been given by Mitchelmore JA. Having reviewed the matter independently, we adopt the reasoning of Adamson JA, reproduced at [67]-[69] above. In short, regardless of Philip's subjective intention, the proceedings were conducted in a way that, in light of the earlier unsuccessful appeal and failed special leave application, caused "unreasonable annoyance, delay or detriment" to the trustees for sale and Peter.
The second relevant set of proceedings (Proietti v Proietti [2023] NSWCA 132) came before an identically configured Court of Appeal. There was a broad similarity between the arguments sought to be advanced and those which had previously been made. Such re-agitation of arguments already dealt with is a classic example of proceedings which attract the epithet "vexatious" and amount to an abuse of process: see Golding, referred to at [13] above.
Our independent review of Proietti v Proietti [2023] NSWCA 199 which was heard by Leeming JA, reveals the pattern of repetition of previously made and rejected arguments advanced by Philip. This pattern also manifested itself in the arguments advanced before Payne JA (Proietti v Proietti [2023] NSWCA 284) and White JA (Proietti v Proietti [2023] NSWCA 251).
The common characteristic of repeated arguments, sometimes sought to be expressed under different procedural labels or invoking different statutory provisions, retained their same essential thrust: namely that Philip had been denied procedural fairness before Kunc J and in subsequent applications. A review of Philip's arguments in those cases disclosed a dogged refusal to "accept the umpire's decision". The repetition of arguments did not improve their force or cogency; rather, they were apt to impose a burden on the trustees for sale and Peter of a kind that was vexatious and oppressive so as to amount to an abuse of process.
The frequent repetition of what were in substance the same arguments also has the tendency to bring the administration of justice into disrepute, another manifestation or consequence of proceedings that amount to an abuse of process. Avenues of appeal properly exist but the administration of justice has as one of its essential components the notion that there must be finality of litigation. The legal system would simply break down if parties could re-agitate the same arguments time and time again in the forlorn hope that they might secure a different outcome.
Turning then to the third step of the analysis, we are also satisfied that the sets of proceedings to which we have made reference amount to "frequently instituted" proceedings within the meaning of s 8(1)(a) of the VPA, taking account of the authorities discussed above at [18]-[20]. The five proceedings we have found to be vexatious were commenced in the 7 month period from 5 April 2023 to 13 November 2023, following the High Court's dismissal of the special leave application on 9 March 2023. Repeatedly seeking to re-agitate issues already decided in this way, and doing so with some rapidity, readily meets the relatively low threshold involved in the notion.
Finally, as to the exercise of our discretion in s 8 of the VPA, we consider that a vexatious proceedings order is in all of the circumstances warranted. Philip has not accepted that further challenges to the orders made by Kunc J are futile and are themselves an abuse of process.
Accepting fully the caution that should be exercised when making a vexatious proceedings order, without a vexatious proceedings order, Philip is likely to continue commencing vexatious proceedings. So much is apparent not only from his conduct to date but from the fact that his intention to continue disputing the result until he obtained an outcome satisfactory to him was made clear in his written and oral submissions to this Court.
His regular commencement of proceedings is likely to impose an unwarranted burden upon Peter and the trustees for sale and the consequence of further proceedings will be further inconvenience, expense and a waste of the Court's time and resources. It is not in the public interest for Philip to continue bringing repeated applications when the Court has already determined the matter. In this context, the abuse of process may also be measured in the diversion of scarce judicial resources in dealing with his multiple and repetitive applications away from the hearing and determination of other litigants' cases and appeals.
An order under the VPA is amply justified. However, it should be confined by reference to the various proceedings Philip has brought in this Court, and relating only to proceedings brought in this Court or the Supreme Court. It is only in respect of such issues that he has manifest the identified vexatious behaviour.
An issue then arises as to whether some temporal limitation should be placed on the order: note Collier at [82]-[83]. In the amici's written submissions it was said that it seems Philip "will continue to commence vexatious proceedings at least until the proceeds of sale are distributed". In the course of oral submissions Philip was asked if he agreed with the statement, leaving aside the characterisation of the proceedings as vexatious. He denied it with some vehemence. That position, together with his conduct to date, means that the Court can have no confidence that there is any particular point where his attempts at repeated re-agitation of the issues will end. This is one of those cases, thus, where it is not appropriate to impose an end date on the order, especially given that the order will be limited to matters the subject of identified proceedings.

Conclusion

For all of the above reasons, in our view the following order should be made pursuant to s 8(7) of the VPA: Order that Mr Philip Proietti is prohibited from instituting proceedings in the Supreme Court of New South Wales including in the Court of Appeal against Mr Peter Proietti or the trustees for sale appointed by Kunc J in respect of the matters litigated in Proietti v Proietti [2022] NSWSC 875, the appeal therefrom (Proietti v Proietti [2022] NSWCA 234) and the following sets of proceedings: Proietti v Proietti [2022] NSWCA 268; Proietti v Proietti [2023] NSWCA 76; Proietti v Proietti [2023] NSWCA 132; Proietti v Proietti [2023] HCASL 15; Proietti v Proietti (No 3) [2023] NSWCA 199; Proietti v Proietti (No 4) [2023] NSWCA 251; and Proietti v Proietti (No 5) [2023] NSWCA 284.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2024

Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 Texts Cited: The Hon AM Gleeson AC QC, "Finality", Bar News (2013, Winter Edition) 33 Category: Procedural rulings Parties: Philip Proietti (Applicant) Representation: Counsel:

Philip Proietti (Applicant in person) L Chan and M Meares (Amicus Curiae) File Number(s): 2022/217751 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 875 Date of Decision: 30 June 2022 Before: Kunc J File Number(s): 2022/14128

Applicable statutory provisions and case law

Section 8(1)(a) of the VPA establishes that this Court may make a vexatious proceedings order where the Court is satisfied that the person has "frequently instituted or conducted vexatious proceedings in Australia" (emphasis added).
This Court is authorised by s 8(4) of the VPA to make a vexatious proceedings order of its own motion. This Court has, on various occasions, exercised such jurisdiction: see Macatangay v New South Wales [2012] NSWCA 374 at [3], [10] (Macatangay); Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [7], [72] (Teoh (No 8)).
"Proceedings" are widely defined under s 4 of the VPA to include: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. Therefore, as Kirk JA acknowledged in Collier v Attorney General (NSW) [2023] NSWCA 273 at [43] (Collier), it is "possible that a number of 'proceedings' may arise within the context of one case".
"Vexatious proceedings" are defined in s 6 of the VPA to include: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The reference in s 6(a) of the VPA to "proceedings that are an abuse of the process of a court" invokes a vast body of case law in relation to the doctrine of abuse of process. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] (UBS AG), three members of the High Court referred to: "The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute."

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