Woolf v Brandt

JUDGMENT

1. THE COURT: This Court has delivered three earlier judgments in this matter: 1. The Court dismissed an application for leave to appeal from a decision of the District Court which summarily dismissed the applicant's claim in defamation as an abuse of process: Woolf v Brandt [2023] NSWCA 290 (Woolf (No 1). Orders were made on the day of the hearing, 30 November 2023, with reasons published on 5 December 2023. 2. The Court made an order on 15 December 2023 that costs be paid in a specified gross sum: Woolf v Brandt (No 2) [2023] NSWCA 309. 3. The applicant filed a motion on 14 December 2023 seeking orders pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and/or the inherent powers of the Court, that the Court set aside or vary the orders made on 30 November 2023. The Court dismissed that application on 1 February 2024: Woolf v Brandt (No 3) [2024] NSWCA 6 (Woolf (No 3)).
2. The applicant in this proceeding has now again applied for this Court to re-open its decision. On 15 February 2024 the applicant, Mr Richard Woolf, filed a motion in this Court seeking again that the Court set aside or vary the orders made on 30 November 2023, along with the judgment on his previous re-opening application, pursuant to r 36.16(3A) of the UCPR and the inherent powers of the Court.
3. Three other orders were also sought in the motion. The second order sought was for the applicant to file written submissions by 20 February 2024. The application for this order has already been dealt with. The Court made the following orders on 19 February 2024: 1. Applicant to file and serve submissions of no more than 5 pages in relation to his motion filed on 15 February 2024, along with any evidence he wishes to rely on, by Thursday 22 February 2024. 2. The applicant's motion is listed for directions before the Registrar on 11 March 2024, unless determined prior to that time on the papers.
4. On 20 February 2024 the applicant sought that the page limit be increased to 10 pages. In response the Court varied its direction on that day to permit him to file and serve submissions of no more than 7 pages. That allocation was more than sufficient in circumstances where the main order sought was to re-open the original decision of this Court, where such an application had already been made, and in a context where in the original application for leave to appeal written submissions were limited to 10 pages pursuant to UCPR rr 51.12(3)(a) and 51.13(5)(a). In any event, the applicant did not comply with the direction, filing a 10 page submission on 22 February 2024.
5. The third order sought in the motion was that there be a hearing to present oral arguments. As noted in Woolf (No 3) at [21], it is common for applications such as this to be determined on the papers. The Court does not consider oral argument to be warranted in all the circumstances here, taking account of the nature of the application, the fact that it is the second time such an application has been made, and the nature and merits of the arguments presented. Furthermore, to list the matter for oral argument would require the respondent to appear. Requiring such an appearance is not warranted taking account of the costs that would thereby be incurred, along with the fact that the primary judge (Gibson DCJ) dismissed the proceedings in the District Court because her Honour found that the applicant's predominant purpose in maintaining the proceedings was an ulterior one of continuing contact with the respondent and maintaining pressure on him as part of a recriminatory process following the break-up of their relationship: see Woolf (No 1) at [8]. The third order sought should thus be refused.
6. The fourth order sought in the motion was that "[p]ursuant to s18 of Practice Note No SC CA 1, leave be granted to challenge the correctness of the judgments of the Court of Appeal of Woolf v Brandt made on 5 December 2023 and 1 February 2024, which are plainly contrary to, inter alia …", after which various judgments are listed, being judgments of this Court and the High Court. The paragraph of the practice note referred to states as follows: [18] A party who proposes to seek leave to challenge the correctness of a decision of the Court of Appeal or of another Australian intermediate appellate court should notify the Registrar in writing by letter or email at the earliest opportunity, and no later than 6 weeks prior to the hearing date. The letter or email should indicate the decision(s) likely to be challenged and their materiality to the proceedings. The President will determine whether to convene an enlarged bench of five judges and will notify the parties. (See also par 21 below.) A decision not to convene an enlarged bench is not a decision to refuse leave to reopen the earlier authority.
7. The paragraph is not related to applications to re-open decisions already made by the Court. It deals with situations where in an impending matter in the Court a party is seeking to challenge the correctness of some prior determination of a legal issue by an Australian intermediate appellate court. The paragraph requires that notice of this intention is provided to the Court so that it can consider whether a bench of five judges should be convened. The fourth order sought by the applicant is misconceived.
8. Returning then to the applicant's application to re-open this Court's decisions in Woolf (No 1) and Woolf (No 3), the relevant principles were referred to in Woolf (No 3) at [7]-[10]. With two material exceptions, the applicant seeks to re-agitate submissions he has already made in either or both of the leave application itself and his first application to re-open the Court's initial decision.
9. He makes extensive submissions about the proper test in relation to establishing an abuse of process for improper purpose and in relation to the rule in Browne v Dunn (1893) 6 R 67. Little attempt is made to suggest that these arguments have not already been made. On the contrary, the main suggestion seems to be that the Court has misunderstood those submissions or the law or both. For example, having set out what he says is the correct test in relation to abuse of process, the applicant argues that "[i]n my [previous] submissions at [59]ff, I meticulously re-constructed the above test, showing it was stated at least five times in Spautz, and with quotes from each underlying authority" (emphasis in the original, the reference being to Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34).
10. Variants of the word "re-submit" are employed 12 times in his written submissions. For example, the submissions say "I re-submit that there are at least two misapprehensions on the part of the court as it applies to Gwe and Browne v Dunn" (the former reference being to Gwe v Commissioner of Australian Federal Police (2020) 103 NSWLR 509; [2020] NSWCA 247). The use of the word is apt - his arguments have, in substance, already been put at least once and commonly twice. In other places in his submissions he makes similar points about the need properly to consider his submissions already made, for example saying "[a]ccordingly, I call for review of what I submitted in Woolf".
11. That the applicant wishes to put an argument for the second or third time is not a proper basis for this Court to re-open its decision.
12. The first new argument the applicant raises is seeking to rely on a transcript of what occurred before the primary judge in her hearing of an issue relating to the second matter which the applicant alleged was defamatory. That hearing occurred on 27 October 2023, subsequently and separately to Gibson DCJ's decision which was the subject of the application for leave to appeal to this Court determined in Woolf (No 1), and prior to the hearing of that leave application by this Court on 30 November 2023. As explained in Woolf (No 3) at [11], the application to this Court did not concern the second claimed defamatory matter. Whatever the primary judge may have said in a subsequent hearing about that matter does not undermine this Court's determination with respect to leave to appeal on the dismissal in relation to the first matter said to have been defamatory. In any event, the relevant discussion in the transcript was simply as to whether or not her Honour should rule on an abuse of process argument made in relation to the summary dismissal application with respect to the second matter whilst the leave application relating to the first matter was unresolved before this Court. The transcript provides no basis to re-open this Court's decision.
13. The second new argument is to seek to make various submissions about the rule in Browne v Dunn by reference to the decision of the Full Court of the Federal Court in Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15. There had only been a passing reference to that decision in the applicant's submissions made in Woolf (No 3). Although the emphasis given to that particular decision is new, these submissions are variants of what he has previously argued. And there is no reason why any such submissions could not have been made previously.
14. It is apparent that the applicant refuses to accept this Court's dismissal of his application for leave to appeal. As was stated in Woolf (No 3) at [17], if he considers that this Court has misunderstood or misapplied the relevant principles then his remedy lies in seeking special leave to appeal to the High Court. It is commonplace that one party or other will wish that the result of litigation was different to what the court has decided. Save for the limited circumstances in which re-opening is required, the principle of finality (see D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]-[36]) and the rule of law requires that litigants accept the result of litigation, subject to exercising any appeal or judicial review rights that may be available. This application is vexatious and an abuse of process in simply seeking another opportunity to persuade the Court that leave to appeal should have been granted.
15. The Court has remedies available to it in relation to repeated and vexatious applications. It can make a direction along the lines made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324; see further eg Proietti v Proietti [2023] NSWCA 132; Arjunan v Neighbourhood Association DP No 285853 (No 3) [2023] NSWCA 266. In Teoh the following direction was made: The Registrar is directed, should the applicant file a further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 to promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mrs Teoh should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
16. If vexatious applications continue to be brought after such an order is made it may then become appropriate to consider the making of an order under the Vexatious Proceedings Act 2008 (NSW).
17. In this matter no notice was provided to the applicant of the possibility of making a Teoh direction and it is desirable to address his current application promptly. No such direction will thus be made. If a further such application is made by the applicant then the question of whether or not a Teoh direction is warranted may have to be addressed.
18. The applicant's motion will be dismissed. The respondent has not been required to file any submissions in response to the motion so it is not necessary to make any order as to costs. The Court thus makes the following orders: 1. Dismiss the applicant's motion filed on 15 February 2024. 2. Make no order as to costs of the motion. 3. Vacate the hearing before the Registrar on 11 March 2024.

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