Proietti v Proietti

The VPO proceedings

1. On 8 March 2024, this Court in Proietti 2024 determined that the five sets of proceedings commenced by the Applicant (see [9] above) were vexatious: "[109] 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 [the First Appeal] 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. [110] 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. [111] 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). [112] 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. [113] 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."
2. The Court held that the five sets of vexatious proceedings were "frequent" for the purpose of s 8(1)(a) of the VPA, and that the Court should order a VPO in the following terms (Proietti 2024 at [114]-[115], [120]): "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." Motion to set aside Vexatious Proceedings Order
3. By notice of motion filed 11 June 2024, the Applicant applied to set aside the VPO supported by an affidavit which was essentially his submissions in support of his application. The notice of motion annexed earlier submissions he had made resisting the making of the vexatious proceedings order. The relief was sought pursuant to s 9(2)(a) of the VPA and s 63 of the CPA.
4. The Applicant's reliance on s 63 of the CPA, entitled "Directions with respect to procedural irregularities", is misconceived. True it is that s 63(3) of the CPA confers a power to "set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part", but the exercise of that power must be referable to a failure of the kind referred to in s 63(1), namely a "failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect." The Applicant's submissions do not point to any failure to comply with the CPA or the rules of court.
5. The power to set aside a VPO lies in s 9 of the VPA which provides that: (1) An authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made. (2) An authorised court may make the order of its own motion or on the application of - (a) the person subject to the vexatious proceedings order, or (b) a person referred to in section 8 (4). (3) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court. (4) An authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful.
6. Given that the Applicant is the person subject to the VPO, he has standing to make an application under s 9(2)(a) of the VPA to vary or set it aside: Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 at [7], [23] (Quach) and no leave is required. The trustees' submission in this case to the contrary should be rejected as inconsistent with the authorities. As was said in Quach at [23]: "The Attorney General submitted that the s 14 leave requirement applies to an application to vary orders made under s 9 by the person subject to the vexatious proceedings order. Mr Quach did not advance any submissions on this issue. As a general principle of statutory interpretation, provisions of general application give way to specific provisions applicable to the same subject matter when in conflict. On this approach, the general provision in s 14 making a requirement for leave in respect of the commencement of all proceedings by the person the subject of the vexatious proceedings order would give way to the specific provision in s 9 to vary or set aside such an order, in respect of which there is no express requirement for leave by the person subject to the vexatious proceedings order."
7. In Attorney General (NSW) v Potier (No 2) [2015] NSWSC 238 at [52], McCallum J (as her Honour then was) noted that "there is little authority on the circumstances in which the Court might exercise its broad discretion under s 9 of the Vexatious Proceedings Act to vary or set aside a vexatious proceedings order that the Court has made".
8. One matter that is plain, however, is that an application to set aside or vary a VPO is not to be used as a means of ventilating a de facto appeal from such an order. The only appeal available to a person subject to a VPO which has been made by this Court is to seek special leave to appeal to the High Court.
9. It is relevant to note that a VPO is interlocutory: see McGettigan v Coulter [2024] NSWCA 148 at [4]-[8]; see also Batterham v Nauer [2020] NSWCA 204 at [8]; Kostov v State of New South Wales [2019] NSWCA 17; Viavattene v Attorney General of New South Wales [2014] NSWCA 218 (Viavattene) at [2]; Klewer v Attorney General (NSW) [2010] NSWCA 219 at [13]-[14], [23]. The variation of interlocutory orders generally requires a material change of circumstances to be established. In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 (Brimaud), McLelland J made important observations in relation to the variation or setting aside of interlocutory orders, noting correctly that there is a variety of types of interlocutory orders, and not every interlocutory order attracts the same considerations. His Honour said that "[i]t would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will": at 46. In the case of an interlocutory order of a substantive nature, his Honour continued: "the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application".
10. Section 9 of the VPA does not differentiate between applications made to vary or set aside orders made before or after the entry of a VPO: cf. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 36.15 and 36.16. It is well established that the jurisdiction to vary or set aside a judgment is to be exercised conservatively, especially in circumstances (such as the present) where orders have already been entered prior to the application to vary or set aside having been made: DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [38]; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 (Bailey); see also Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41. In Bailey, Barwick CJ said at 530 that: "Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."
11. It may also be noted that the general power to set aside a judgment conferred by provisions such as UCPR r 36.15 is confined by a requirement of "sufficient cause being shown" or where the order was made "irregularly, illegally or against good faith". Under UCPR r 36.16(2), the power to set aside or vary an order after judgment has been entered is confined to cases where the judgment has been entered by default or in the absence of a party. UCPR r 36.16 reflects the strong public interest in maintaining the finality of litigation (subject to the exercise of any appeal rights).
12. The same concern is reflected in McLelland J's observations in Brimaud in the context of applications to vary interlocutory judgments. This is not a case where the Applicant invokes or places reliance upon any material change of circumstances since the making of a VPO.
13. These considerations inform and underpin the exercise of discretion conferred on this Court by s 9 of the VPA, and it is with these considerations in mind that the Applicant's contentions must be considered.

Consideration

1. It is a common feature of applications such as the present that the applicant who has already been made the subject of a VPO perseveres with matters which have been ventilated in a multiplicity of previous proceedings which have in fact led or contributed to the VPO being made in the first place: see, for example, Pearce (Formerly Pascoe) v Liprini [2014] NSWSC 1316. The current application was, at least in large part, no exception.
2. Moreover, a number of the Applicant's arguments were challenges to findings made by the Court in the hearing leading to the making of the VPO, regurgitating arguments that had been considered and rejected. For example, the Applicant contended that this Court erred in Proietti 2024 at [17] in finding that only one of the four indicia established by s 6 of the VPA need be satisfied for proceedings to be characterised as "vexatious proceedings" arguing that, by failing to find that the impugned proceedings fell within each category, this Court erred in characterising the proceedings as vexatious. In Proietti 2024 at [17], this Court had held that a VPO may be justified where a person "frequently" institutes proceedings "which satisfy any of the four criteria established by s 6". This conclusion was consistent with the use of the word "includes" in s 6 of the VPA and the reasoning in Viavattene at [14].
3. In any event, as noted earlier, an application to vary or set aside a VPO may not be used to bring a de facto appeal.
4. The same observation may be made in relation to the Applicant's contention that the Court erred in finding that the impugned proceedings constituted an abuse of process because the Court failed to substantiate its finding that the Applicant's institution of five sets of proceedings were oppressive or brought the administration of justice into disrepute.
5. In any event, the Court explained in Proietti 2024 how the Applicant's institution of five sets of proceedings, each unsuccessful and advancing substantially similar arguments, was both oppressive and liable to undermine the administration of justice: "[112] … 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. [113] 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."
6. The Applicant further argued that mere re-agitation of issues is insufficient to constitute an abuse of process. Rather, the Applicant contended that proceedings must be both oppressive and have no reasonable grounds to be characterised as an abuse of process.
7. Apart from being a de facto appeal ground, being advanced impermissibly under the guise of a set aside application, that argument is misconceived. First, as explained above at [30], this Court characterised the Applicant's proceedings as oppressive to Peter and the trustees. Secondly, the absence of "reasonable grounds" is an indicium under s 6(c) of the VPA, which, as explained above, need not be proven where an alternative criterion is satisfied (here, abuse of process: VPA, s 6(a)). Thirdly, and finally, the Court in Proietti 2024 characterised the First Appeal as having no reasonable grounds at [109]: "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…" Implicit in the above passage is that the re-agitation of substantially similar arguments, which were rejected in the First Appeal and in various subsequent proceedings, were also made without reasonable grounds.
8. Next, the Applicant argued that he had been denied procedural fairness, not by the Court in Proietti 2024 but at first instance, and in the First Appeal (adopting the identification of proceedings made in Proietti 2024). Thus the Applicant complained that he was denied procedural fairness because: 1. there were no directions hearings at first instance; 2. there were no pleadings at first instance; and 3. the court at first instance did not put the Applicant, as a self-represented litigant, in a position to make an informed choice.
9. This was a re-agitation of arguments considered and dismissed in Proietti 2024 at [101] where the Court said: "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."
10. The Applicant argued that this Court's reasoning at [101] was in error because the "case for pleadings" was undeniable in circumstances where his case involved two assertions of estoppel, one of which had five elements. The Applicant contended that pleadings would have enabled him to better develop the elements of such claims. Such arguments repeat submissions made in earlier proceedings, and are misconceived for the reasons explained by this Court in Proietti 2024 at [101] and the First Appeal at [77]-[83]. They are yet a further illustration of the Applicant seeking to use the s 9 VPA procedure illegitimately to formulate and seek to mount a de facto appeal.
11. Next, the Applicant argued that this Court, in Proietti 2024, erred in failing to provide adequate reasons because it purportedly: (i) "has relied on the High Courts [sic] determination" to refuse special leave; and (ii) erred in upholding the First Appeal's finding that the Applicant was not denied procedural fairness. This latter argument has been adequately dealt with at [33]-[35] above.
12. In respect of the first argument, this Court explained in Proietti 2024 that: "[98] 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]. [99] 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.""
13. Once again, this aspect of the Applicant's complaint does not provide a proper basis to have the VPO set aside. The argument also misconceives what this Court said in Proietti 2024 about the High Court's refusal to grant special leave to appeal. This argument should be rejected and provides no basis to set aside this Court's VPO.
14. The Applicant raised an allegation that this Court was: "not neutral, biased and certainly not impartial. Their latest retort of denying bias, just because the decisions do not go my way on just about every issue does mean they are prejudiced is laughable. It's like the mafia proclaiming their innocence". This submission, even putting aside its unfortunate and regrettable tone, did not advance reasons as to why the Proietti 2024 Court was said to be biased. The Applicant charges bias by reason of this Court's rejection (on a number of occasions) of his submissions. It is appropriate to repeat what was said in Proietti 2024 at [102]: "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."
15. The Applicant further argued that this Court misquoted him in Proietti 2024 by stating that the Applicant was not prepared to cease commencing further proceedings until he regained title to the Marsfield Property. That appears to be a reference to the following passages from the earlier reasons for judgment: "[116] 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. … [119] …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."
16. The reasoning is and was clear and the Applicant's submission provides no basis for setting aside the VPO.
17. The application must be dismissed.
18. The trustees contended that the costs of these proceedings should be paid from the Applicant's share in the proceeds of the sale of the Marsfield Property (which continues to be held on trust by the trustees) on an indemnity basis. The trustees argued that it would be prejudicial against Peter to equally share the costs of proceedings which have been, and continue to be, an abuse of process.
19. As such, the trustees sought the following orders: "1. Dismiss the notice of motion filed on 11 June 2024 with costs, such costs to be on an indemnity basis and paid out of the applicant's share of the net proceeds of sale of the property at Marsfield in respect of which the Court has appointed trustees for sale. 2. Order that the Trustees pay the Applicant's remaining share in the proceeds of the sale of the Marsfield property in Court. 3. The Trustees be excused from filing and serving any written submissions or appearing at Court hearings should the Applicant file similar applications seeking to set aside the orders made by the Court on 8 March 2024 in the future, unless the Court directs otherwise."
20. We would make orders 1 and 3. There is no apparent basis, and none was advanced, as to why the Applicant's share of the proceeds of sale of the Marsfield property should be paid into Court as opposed to being dealt with by the trustees in accordance with their obligations.

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