Arjunan v Neighbourhood Association DP No 285853

1. [1]

   THE COURT: On 28 March 2024, Ward P made orders listing this matter in order to hear and consider, of the Court’s own motion, whether there should be a vexatious proceedings order made in respect of Mr Kannapiran Chinna Arjunan and Ms Thangam Kannapiran pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (VPA).

2. [2]

   The factual background and procedural history of the litigation will be set out in greater detail later in these reasons. For present purposes, it is sufficient to state that each of the proceedings instituted by Mr Arjunan and Ms Kannapiran relate to a judgment in the sum of $28,348 entered against them on 2 December 2021 in the Local Court in favour of the Neighbourhood Association DP No 285853 (the Neighbourhood Association). That judgment sum was referable to costs incurred by the Neighbourhood Association in seeking to recover unpaid levies from Mr Arjunan and Ms Kannapiran in relation to a lot owned by them in a deposited plan managed by the Neighbourhood Association.

3. [3]

   Mr Arjunan and Ms Kannapiran appealed directly to the Supreme Court from the decision of the Local Court. Before the appeal came on for hearing before Adamson J (as her Honour then was), Mr Arjunan and Ms Kannapiran filed two notices of motion seeking, inter alia, declaratory relief in relation to the retainer of the Neighbourhood Association’s lawyers, Grace Lawyers, and their entitlement to charge the fees which represented the Association’s legal costs which were ordered to be paid by Mr Arjunan and Ms Kannapiran in the Local Court proceeding. Both of these notices of motion were dismissed, as was the substantive appeal to Adamson J: Arjunan v Neighbourhood Association DP No 285853 (No 3) [2022] NSWSC 1524 (the Local Court appeal decision).

4. [4]

   An application for leave to appeal to the Court of Appeal was also refused. An additional three applications were thereafter filed in the Court of Appeal, seeking to impugn the decision to refuse leave to appeal. The last of those proceedings was summarily dismissed by Stern JA on 22 December 2023 as vexatious and an abuse of process: Arjunan v Neighbourhood Association DP No 285853 (No 4) [2023] NSWCA 329 (Arjunan (No 4)). In their decision of 8 November 2023 (Arjunan v Neighbourhood Association DP No 285853 (No 3) [2023] NSWCA 266 (Arjunan (No 3))), Ward P and Mitchelmore JA had also held at [34]:

5. [5]

   A further Notice of Motion was then filed by Mr Arjunan and Ms Kannapiran on 5 January 2024 in this Court seeking to set aside and vary the orders made by Stern JA on 22 December 2023.

6. [6]

   The matter was listed for directions before Ward P on 22 February 2024. On that occasion, her Honour said:

7. [7]

   By orders made on 28 March 2024, Ward P listed the matter for hearing on the question whether an order should be made under the VPA. This was after Mr Arjunan and Ms Kannapiran had had the benefit of pro bono legal advice.

8. [8]

   Before turning to the factual background and procedural history to the litigation in greater detail, the applicable legislative regime and case law should be referred to.

Statutory framework and authorities

1. [9]

   Pursuant to s 8(1)(a) of the VPA, an authorised court may make a vexatious proceedings order in relation to a person if satisfied that “the person has frequently instituted or conducted vexatious proceedings in Australia” (emphasis added). In making such an order, the Court may have regard to proceedings instituted or conducted in any Australian court or tribunal, orders made by any Australian court or tribunal and evidence of the decision, or finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders: s 8(2).

2. [10]

   “Vexatious proceedings” are defined in s 6 of the VPA as including:

3. [11]

   “Proceedings” are defined in s 4 of the VPA as including:

4. [12]

   Pursuant to s 8(4) of the VPA, the Court may make a vexatious proceedings order of its own motion. It has done so on numerous occasions. Section 8(7) of the VPA provides that:

5. [13]

   The principles applicable to the making of a vexatious proceedings order by the Court of its own motion were most recently outlined by this Court in Proietti v Proietti [2024] NSWCA 48 (Proietti) (see, also Macatangay v New South Wales [2012] NSWCA 374 (Macatangay) and Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125). In Proietti at [25], the Court said:

6. [14]

   Earlier in Proietti at [17]-[20], the Court surveyed case law in relation to the word “frequently” as used in s 8(1)(a) of the VPA, including noting Leeming JA’s observation in Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [118] that the word “frequently” represented a “relatively low threshold.” In Proietti at [114], the Court held that the five proceedings commenced in a seven month period following the High Court’s refusal of a grant of special leave to appeal, and which repeatedly sought to re-agitate issues already decided, met this threshold.

Background and Procedural History

1. [15]

   Mr Arjunan and Ms Kannapiran are the owners of one of 15 lots (Lot 2) in a deposited plan managed by the Neighbourhood Association. A management statement was registered for the deposited plan on 30 April 2004 and was binding pursuant to s 14(4) of the Community Land Management Act 1989 (NSW) (CLMA).

2. [16]

   On 15 November 2011, the Neighbourhood Association resolved to amend its management statement by passing the following by-law which became binding:

3. [17]

   The managing agent of the Neighbourhood Association has, at least since 2011, been O’Connors Strata & Property Specialists Pty Ltd (O’Connors). The Neighbourhood Association entered into a new management agreement with O’Connors, the Association Agency Agreement (the Agency Agreement), on 4 December 2018. Clause 5 of that agreement provides that O’Connors may “authorise the taking of legal proceedings to recover outstanding levies/contributions … and costs from a lot owner.”

4. [18]

   Minutes of AGMs held on 4 December 2018 and 30 October 2019 record that nominees of Lots 5, 8, 9 and 10 were in attendance and that a representative of O’Connors was the “spokesperson” or “Chairperson”. At the 30 October 2019 meeting, a proxy for Lot 12 was also present. At both the 30 October 2019 and 4 December 2018 AGMs, a motion was passed authorising O’Connors to do any one or more of the following:

5. [19]

   The minutes of the AGM held on 22 December 2020, attended by nominees of Lots 5, 8, 9 and 10 as well as proxies for Lot 2 (owned by Mr Arjunan and Ms Kannapiran) and Lot 12 alongside a representative of O’Connors who acted as a spokesperson, record that a motion in identical terms was again passed.

6. [20]

   On 20 January 2020, the Neighbourhood Association commenced proceedings in the Small Claims Division of the Local Court against Mr Arjunan and Ms Kannapiran claiming the liquidated sum of $2,795.91 for unpaid levies required to be paid under Part 4 of Schedule 1 of the CLMA together with interest thereon pursuant to s 20A of the CLMA as well as costs incurred by the Neighbourhood Association to 17 January 2020 in seeking to recover the unpaid levies. The claim for costs was expressed to have been made pursuant to the Neighbourhood Association’s by-laws. The defence filed by Mr Arjunan and Ms Kannapiran on 14 February 2020 alleged that the levies were excessive.

7. [21]

   The question whether the levies were excessive was a matter within the jurisdiction of the NSW Civil and Administrative Tribunal (NCAT). As such, on 19 May 2020, Mr Arjunan and Ms Kannapiran commenced proceedings in NCAT challenging the amount of the levies. The Local Court proceedings were held in abeyance whilst the NCAT proceedings were on foot. The NCAT proceedings were dismissed on 1 October 2020, as was a subsequent appeal against the dismissal. Various costs orders were made against Mr Arjunan and Ms Kannapiran in relation to the NCAT proceedings.

8. [22]

   The minutes of a Special General Meeting of the Neighbourhood Association held on 24 November 2020 attended by representatives of Lots 5, 8, 9 and 10 as well as proxies from Lots 13, 2 and 3 and a representative of O’Connors, who acted as chairperson, record that the NCAT proceedings between the Neighbourhood Association and Mr Arjunan and Ms Kannapiran were discussed. A motion was also passed that Grace Lawyers be engaged to defend the NCAT proceedings and that O’Connors would liaise with and provide instructions to Grace Lawyers. The same resolution provided for “payment of all of Grace Lawyers’ reasonable costs in acting for the Neighbourhood Association as disclosed in the costs agreement and costs disclosure between Grace Lawyers and the Neighbourhood Association dated 13 November 2020”.

9. [23]

   On 1 December 2020, Mr Arjunan and Ms Kannapiran filed a notice of payment in the Local Court confirming they had paid $2,760.04, being the total debt claimed by the Neighbourhood Association plus interest up to 4 December 2020. Thereafter, the only issue for the Local Court to determine was the costs of the proceedings.

10. [24]

    Mr Arjunan and Ms Kannapiran argued before the Local Court that they were not liable for the costs of the Neighbourhood Association on the basis that Grace Lawyers had not been validly appointed to act on its behalf, the costs were not claimable as they could have been claimed in NCAT such that recovery was prohibited by s 120(2) of the CLMA and that the costs were excessive and disproportionate to the amount claimed. This argument occurred on 2 December 2021, occupying most of the day.

11. [25]

    On 2 December 2021, Magistrate Milledge awarded the Neighbourhood Association costs of $28,348. Her Honour held that Grace Lawyers had been validly retained by the Neighbourhood Association and were authorised to recover costs against lot owners and that the costs were claimable. Magistrate Milledge also held that, consistent with Owners of Strata Plan 36131 v Dimitriou (2009) 74 NSWLR 370; [2009] NSWCA 27 (Dimitriou), the by-law entitled the Neighbourhood Association to all costs reasonably incurred, so long as the amount was also reasonable, and that the costs claimed fulfilled these requirements. Her Honour also rejected the argument that costs recovered were required to be proportionate.

12. [26]

    On 29 December 2021, Mr Arjunan and Ms Kannapiran filed a Summons in the Supreme Court appealing from the whole of the Local Court decision.

13. [27]

    On 24 March 2022, Hamill J dismissed a motion filed by Mr Arjunan and Ms Kannapiran on 16 February 2022 seeking a declaration that the appointment of Grace Lawyers was invalid and that Grace Lawyers could not represent the Neighbourhood Association in the Local Court, or in the Supreme Court: Arjunan v Neighbourhood Association No DP 285853 [2022] NSWSC 691. His Honour held that Grace Lawyers were validly acting for the Neighbourhood Association and noted at [11] that Mr Arjunan’s allegations that the Neighbourhood Association was “defunct” and “dysfunctional” were issues “ultimately to be determined at the final hearing”. Hamill J went on to hold that:

14. [28]

    On 26 May 2022, Rothman J dismissed a further motion filed by Mr Arjunan and Ms Kannapiran on 19 April 2022 seeking to re-open the decision of Hamill J, a declaration that Grace Lawyers were invalidly appointed and leave to amend their summons as well as various orders as to costs: Arjunan v Neighbourhood Association DP No 285853 [2022] NSWSC 746. His Honour granted leave to amend the summons to include an order for the costs of the proceedings but otherwise dismissed the Amended Motion filed on 19 April 2022. Rothman J held at [25]-[27] that:

15. [29]

    Rothman J also noted at [23] that a series of NCAT proceedings had been instituted by Mr Arjunan and Ms Kannapiran. His Honour added the following:

16. [30]

    The appeal from the Local Court decision was brought pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) (the Local Court Act) before Adamson J. An appeal directly to the Supreme Court from the Local Court is confined to “a question of law” or, with the leave of the Court, “a question of mixed law and fact.” Mr Arjunan and Ms Kannapiran sought to raise four grounds of appeal before Adamson J, namely:

17. [31]

    On 9 November 2022, Adamson J dismissed the appeal brought against the Local Court decision and ordered that Mr Arjunan and Ms Kannapiran pay the Neighbourhood Association’s costs of the proceedings: the Local Court appeal decision. In summarising the interlocutory applications made by Mr Arjunan and Ms Kannapiran, her Honour noted that the 19 April 2022 motion dismissed by Rothman J “sought to re-agitate the issues which had been ventilated before Hamill J”: at [39].

18. [32]

    Adamson J refused leave to appeal in relation to ground 2, it raising a mixed question of fact and law. Her Honour’s reasoning at [47]-[49] was as follows:

19. [33]

    Her Honour also refused leave in respect of ground 3 on the basis that it “was without merit and was based on a misapprehension of the effect of the statutory provisions”: at [54]. Her Honour’s reasoning at [51]-[53] was as follows:

20. [34]

    In dismissing grounds 1 and 4 of the appeal, Adamson J reasoned that, although the costs were arguably disproportionate, the Local Court had applied the correct principles and the Neighbourhood Association was entitled to recover all costs reasonably and properly incurred: at [45].

21. [35]

    On 21 November 2022, Mr Arjunan and Ms Kannapiran filed a Notice of Motion seeking the following orders:

22. [36]

    On 28 November 2022, the Neighbourhood Association’s lawyers wrote to Mr Arjunan and Ms Kannapiran explaining that the Notice of Motion was unlikely to succeed and inviting them to withdraw it by a stipulated date. Mr Arjunan and Ms Kannapiran did not withdraw the Notice of Motion.

23. [37]

    On 1 December 2022, N Adams J dismissed the Notice of Motion and ordered that Mr Arjunan and Ms Kannapiran pay the Neighbourhood Association’s costs on an ordinary basis: Arjunan v Neighbourhood Association No DP 285853 [2022] NSWSC 1663. Her Honour referred to the powers to set aside or vary judgments contained in rr 36.15-36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPRs).

24. [38]

    Her Honour was not satisfied that the judgment of Adamson J was made irregularly or illegally or against good faith such that it could be set aside pursuant to UCPR r 36.15: at [18]. Nor was her Honour satisfied that any of the conditions precedent were satisfied to warrant Adamson J’s judgment being set aside in accordance with UCPR r 36.16(2): at [17]. Although N Adams J acknowledged that the Notice of Motion had been filed within 14 days of judgment being entered, consistent with r 36.16(3A), her Honour reasoned at [21]-[24] that:

25. [39]

    In relation to the costs of the proceedings, her Honour said that although it was “regrettable” that Mr Arjunan and Ms Kannapiran had proceeded in the face of the letter sent by the Neighbourhood Association’s lawyers, “there [was] no reference to UCPR r 36.16(3) in the letter and [in light of] a factual dispute about whether it was drawn to the plaintiffs’ attention before the Registrar”, her Honour did not order that costs be paid on an indemnity basis: at [33].

26. [40]

    On 6 February 2023, Mr Arjunan and Ms Kannapiran sought leave to appeal from the decisions of Adamson J and N Adams J. Five grounds of appeal were raised which can be summarised as follows:

    1. (1)

       That Adamson J incorrectly applied the case of Dimitriou which concerned the Strata Schemes Management Act 1996 (NSW) (SSMA) and not the CLMA;

    2. (2)

       That Adamson J, in finding that the by-law was valid, overlooked that s 14(2) of the CLMA precluded the making of the by-law;

    3. (3)

       That Adamson J erred in relation to the alleged invalidity of AGMs, resolutions and the solicitors’ retainer;

    4. (4)

       That Adamson J erred in holding that s 120(2) of the CMLA did not provide a basis on which the Court should have ordered the Neighbourhood Association to pay the applicants’ costs; and

    5. (5)

       That the Local Court’s costs decision miscarried on the basis that invoicing requirements were not satisfied and aspects of the costs were excessive.

27. [41]

    Grounds 3 and 4 broadly corresponded to grounds 2 and 3 before Adamson J.

28. [42]

    During the hearing of the leave application, a further ground of appeal was raised, being that N Adams J erred in construing UCPR r 36.16(3A) as subject to r 36.16(3)(b).

29. [43]

    On 28 April 2023, the Court of Appeal Registrar refused leave to issue a subpoena addressed to the Neighbourhood Association and O’Connors returnable before 3 May 2023 pursuant to UCPR r 7.3. The basis for the subpoena, which sought a range of documents including documents in relation to an investigation conducted by the Department of Fair Trading (the Department) concerning the Neighbourhood Association’s legislative compliance, the Neighbourhood Association’s insurance cover, the retainer of Grace Lawyers and meetings and membership of the Neighbourhood Association, was said to be that the recipients had “deliberately withheld” documents and “misled the court”.

30. [44]

    Leave to appeal was refused by Ward P and Mitchelmore JA on 19 May 2023: Arjunan v Neighbourhood Association DP No 285853 [2023] NSWCA 103 (Arjunan (No 1)). Their Honours reasoned at [3] that:

31. [45]

    In relation to ground 3 of the proposed appeal it was held at [35] that:

32. [46]

    Ward P and Mitchelmore JA added at [46]:

33. [47]

    Mr Arjunan and Ms Kannapiran were ordered to pay the Neighbourhood Association’s costs of the application for leave to appeal, except in respect of a Notice of Motion filed by the Neighbourhood Association on 17 March 2023 seeking an order that the appeal be dismissed pursuant to UCPR r 51.41.

34. [48]

    On 2 June 2023, Mr Arjunan and Ms Kannapiran filed a notice of motion seeking first, to set aside and vary the orders made by Ward P and Mitchelmore JA, second, orders granting leave to appeal and allowing the appeal, and third, the issuance of the subpoena which the Registrar had refused leave to issue on 28 April 2023. That notice of motion was dismissed by Ward P and Mitchelmore JA on 3 August 2023: Arjunan v Neighbourhood Association DP No 285853 (No 2) [2023] NSWCA 176 (Arjunan (No 2)).

35. [49]

    The Court treated the Notice of Motion as “an application to reopen and to vary orders that the Court” had made on 19 May 2023 and held that because the Notice of Motion was filed within 14 days of judgment being entered, the Court had power to reopen the matter and vary the orders, as if the orders had not been entered: UCPR rr 36.16(1) and (3A). However, the Court then held that this power was “not to be exercised for the purpose of allowing arguments that have already been considered by the Court to be reagitated, or because the applicant has failed to present the argument in all its aspects or as well as it might have been put”: at [5].

36. [50]

    The principal basis upon which Mr Arjunan and Ms Kannapiran argued that the orders of the Court in Arjunan (No 1) should be set aside and varied was the existence of what were asserted to be “newly discovered facts” discerned from records of the investigation conducted by the Department in relation to the Neighbourhood Association. In particular, Mr Arjunan and Ms Kannapiran relied on the Department having recorded that, contrary to reg 4C(3) of the Property, Stock and Business Agents Regulation 2014 (NSW), the Association Agency Agreement had been executed on behalf of O’Connors by an agent who did not hold a licence and whose address and licence number were not specified. Mr Arjunan and Ms Kannapiran submitted that this aspect of the Department’s records, as well as the fact that another person employed at O’Connors did not hold a “Class 1 licence”, meant that, as was advanced by ground 3 of their appeal heard by Adamson J, the appointment of Grace Lawyers was invalid, illegal and void.

37. [51]

    Ward P and Mitchelmore JA held that the fact that a licence number and address were not specified on the Association Agency Agreement arose on its face (at [14]) and that Mr Arjunan and Ms Kannapiran had been in possession of that agreement, as well as a Witness Statement and Affidavit of the other O’Connors employee, for some time: at [12]. Their Honours also referred to their earlier reasons in Arjunan (No 1) at [35] (set out at [45] above) in holding that UCPR r 36.16 would not permit reopening Arjunan (No 1) “to reagitate the same matters with different emphasis”: at [12]-[13].

38. [52]

    Ward P and Mitchelmore JA held at [15] that Mr Arjunan and Ms Kannapiran’s contention that the Court had “overlooked” important submissions they had made in relation to ground 4 of their proposed appeal “did no more than reagitate points that were made on the leave application”.

39. [53]

    In relation to ground 5 of their proposed appeal, Mr Arjunan and Ms Kannapiran contended that, during the leave application, the Neighbourhood Association gave false oral evidence as to it recouping the costs of the debt recovery pursuant to its insurance policy whilst also claiming those costs in the Local Court. Ward P and Mitchelmore JA held at [18] that there was no basis established for that allegation nor any basis for the Court to reconsider its decision on ground 5.

40. [54]

    The Court then held that, in submitting they were denied natural justice, Mr Arjunan and Ms Kannapiran were effectively reagitating submissions they had already made in relation to grounds 1, 3 and 5 of their proposed appeal, none of which articulated a denial of natural justice or a basis upon which the Court would entertain a reopening of its decision: at [19].

41. [55]

    In relation to the subpoena sought by Mr Arjunan and Ms Kannapiran, the Court held that no error had been identified in the Registrar’s decision to refuse leave to issue that subpoena. It was also held that, in any event, as the proceedings had concluded there was “no utility in issuing the subpoena”: at [22].

42. [56]

    On 17 August 2023, Mr Arjunan and Ms Kannapiran filed a further Notice of Motion seeking to set aside and vary the orders made in Arjunan (No 2) pursuant to UCPR r 36.16(3A).

43. [57]

    On 28 August 2023, the Registrar of the Court of Appeal made directions, including a direction that Mr Arjunan and Ms Kannapiran be required to show cause why a “Teoh direction” (similar to that made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324) should not be made. The Neighbourhood Association advised the Court that it sought a Teoh direction.

44. [58]

    On 8 November 2023, in Arjunan (No 3), Ward P and Mitchelmore JA dismissed the Notice of Motion filed on 3 August 2023 and made a Teoh direction in the following terms:

45. [59]

    In holding that there was no basis to re-open its decision in either Arjunan (No 1) or Arjunan (No 2) or to vacate any of the costs orders made, the Court reasoned at [16] that:

46. [60]

    The Court also held at [28] that:

47. [61]

    As to the making of the Teoh direction, Ward P and Mitchelmore said at [32]-[35] that:

48. [62]

    On 29 November 2023, Mr Arjunan and Ms Kannapiran filed a further Notice of Motion seeking to set aside and vary, pursuant to UCPR r 36.16(3A), the orders made by the Court of Appeal in Arjunan (No 3). They also sought to issue a subpoena to produce documents addressed to O’Connors and the Neighbourhood Association’s insurer, CRM Brokers. The Notice of Motion and subpoena had earlier, within 14 days of judgment being handed down in Arjunan (No 3), been emailed to the Court of Appeal. Leave to issue the subpoena was refused on 28 November 2023. Order 4 of the Notice of Motion sought a grant of leave to appeal and that the appeal be allowed. (Leave to appeal had, of course, already been refused).

49. [63]

    On 22 December 2023, Stern JA dismissed the Notice of Motion and refused leave to issue the subpoena: Arjunan (No 4). Her Honour held at [22] that:

50. [64]

    In relation to the subpoena, Stern JA held that the documents being sought related to the contention that the Neighbourhood Association had received payment pursuant to its insurance policy for costs claimed in the Local Court and that Mr Arjunan and Ms Kannapiran “should not be permitted to reagitate those contentions”: at [26].

51. [65]

    On 5 January 2024, Mr Arjunan and Ms Kannapiran filed a further Notice of Motion seeking, pursuant to UCPR r 36.16(3A), to set aside and vary the orders of Stern JA made on 22 December 2023 primarily on the basis that they were not given the opportunity to be heard on grounds 3 and 4 of their appeal, that is to say, grounds 3 and 4 of the proposed notice of appeal the subject of the leave to appeal application that had been rejected by Ward P and Mitchelmore JA on 19 May 2023.

52. [66]

    The orders sought by Mr Arjunan and Ms Kannapiran included that the Court “grant leave to appeal and allow the appeal and finally determine the appeal concurrently as per UCPR 51.14”.

53. [67]

    On 22 February 2024, as noted at [6] above, the parties appeared before Ward P who referred Mr Arjunan and Ms Kannapiran for pro bono legal advice, pursuant to UCPR r 7.36, as to the question whether the Court should, of its own motion, declare Mr Arjunan and Ms Kannapiran to be vexatious litigants in relation to the matters outlined above.

54. [68]

    On 28 March 2024, the parties again appeared before Ward P. At this time, Mr Arjunan and Ms Kannapiran, who were represented by Mr Puttick acting in a pro bono capacity, advised Ward P that they wished to proceed with their Notice of Motion filed on 5 January 2024. As such, Ward P listed the issue whether an order should be made pursuant to the VPA to be heard by the Court of Appeal on 15 May 2024. Her Honour also stood the Notice of Motion filed on 5 January 2024 over for directions before the Court of Appeal Registrar on 27 May 2024.

55. [69]

    On the hearing of the matter on 15 May 2024, Mr Arjunan represented himself and Ms Kannapiran.

Consideration

1. [70]

   Mr Arjunan and Ms Kannapiran had a right to appeal from the decision of the Local Court and exercised that right. This resulted in the decision of Adamson J.

2. [71]

   Prior to that decision, they had sought relief by way of two Notices of Motion before Hamill J and Rothman J. Although those motions were interlocutory in nature, both effectively sought declaratory relief in relation to the legality of Grace Lawyers acting for the Neighbourhood Association. Although both decisions provide some context and gave an insight or forecast of what was later to transpire, we have not included them in our consideration of the degree of frequency of proceedings for the purposes of s 8(1)(a) of the VPA. An allowance should be made for the fact that Mr Arjunan and Ms Kannapiran were self-represented, and do not appear fully to have understood certain procedural matters. These proceedings also preceded the exercise of their right of appeal to a single judge of the Supreme Court from the Local Court.

3. [72]

   In our view, the proceedings which can be characterised as “vexatious” (for reasons explained below) are those before N Adams J and the Notices of Motion of 2 June, 17 August, 29 November 2023 and 5 January 2024.

4. [73]

   By way of written submissions filed on 3 May 2024, Mr Arjunan and Ms Kannapiran appeared to submit that each of the proceedings filed by them does not meet the definition of “vexatious proceedings” pursuant to s 6 of the VPA on the basis that those proceedings were instituted to address matters which were, as set out in a lengthy table attached to their submissions, “inadvertently or by oversight not considered” by the Court.

5. [74]

   This was a familiar form of submission. It had been made (and rejected) before Stern JA, for example, her Honour noting at [15] that:

6. [75]

   The same pattern may be seen in Arjunan (No 2) where the heading to [15] of the judgment is “Overlooking significant points on proposed Ground 4”. Their Honours recorded and rejected the submission which continued indomitably to be made by Mr Arjunan in this hearing.

7. [76]

   Each of these proceedings identified in [72] above fell, in our opinion, within the meaning of s 6 of the VPA. They were vexatious insofar as they sought to litigate anew matters that already had, or could have been, litigated in the earlier decisions, namely the decision of Adamson J and the decision of Ward P and Mitchelmore JA, refusing leave to appeal. This is a classic example of vexatiousness and an abuse of process.

8. [77]

   They also meet the definition of vexatious proceedings in s 6(c) of the VPA, namely proceedings instituted or pursued “without reasonable ground”. This is because each seeks to use UCPR r 36.16 for an impermissible purpose, namely as a means of canvassing substantive decisions rather than for the more limited purpose to which that provision is directed.

9. [78]

   Mr Arjunan and Ms Kannapiran plainly did not and do not accept the decisions of Adamson J and that of Ward P and Mitchelmore JA, refusing leave to appeal. Such non-acceptance does not, however, give a party any entitlement to continue to bring proceedings in order to secure a different result, and UCPR r 36.16 does not give a party licence to do so. As this Court explained in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]:

10. [79]

    Although Mr Arjunan contended that certain matters had not been dealt with or addressed in earlier proceedings, a review of those decisions amply demonstrates that that was either not so or, alternatively, the matters which it was contended should have been considered had no merit or were misconceived. One example of this was Mr Arjunan’s reliance on s 89 of the Community Land Management Act 2021 (NSW) which did not apply to the Neighbourhood Association in respect of the proceedings in the Local Court which had been commenced before its passage: see cl 6 of Sch 3.

11. [80]

    In substance, each notice of motion involved an attempt to canvass the earlier decisions: in one case, the decision of Adamson J, and in the other cases, the decision of Ward P and Mitchelmore JA, refusing leave to appeal.

12. [81]

    It is telling that, in one of the notices of motion, it was sought to rely on what was said to be fresh evidence by way of justifying a re-opening. This implicitly recognised that Mr Arjunan and Ms Kannapiran could not simply repeat arguments previously made. But this attempt to justify a re-opening failed because the Court did not accept that there was any fresh evidence and concluded, in effect, that the application involved a canvassing of the earlier decision to refuse leave to appeal: Arjunan (No 2) at [12]-[14].

13. [82]

    It was also sought to contend that there had been fraudulent conduct by lawyers or the managing agent, as a means of opening up earlier decisions. That attempt was also rightly rejected by Ward P and Mitchelmore JA as lacking any proper basis: Arjunan (No 2) at [18]. Such arguments were repeated before this Court by Mr Arjunan.

14. [83]

    In supplementary written submissions, received on 16 May 2024, Mr Arjunan again focussed on grounds 3 and 4, as referred to in the proposed grounds of appeal considered by Ward P and Mitchelmore JA in refusing leave to appeal. Mr Arjunan’s written contention was that, “had all the proceedings … considered the facts and law [as] submitted by us as discussed above, the decision would be different.” This submission was revealing.

15. [84]

    It was not for this Court, on its consideration of whether or not an order should be made under the VPA, to hear and consider detailed and, with respect, at times confused or misconceived submissions about the intricacies of the CLMA and its application and that of the SSMA to a neighbourhood association, although that was the path upon which Mr Arjunan’s submissions inevitably drew the Court. Rather, the task of this Court, in accordance with the well established four stage approach noted at [13] above, is to consider whether the identified earlier decisions fall within the definition of vexatious proceedings in s 6 of the VPA.

16. [85]

    For the reasons given above, they do. We note, parenthetically, that, although we have reached this decision independently, the same characterisation was given to the notice of motion determined by Stern JA as well as the notice of motion dealt with by Ward P and Mitchelmore JA in Arjunan (No 3).

17. [86]

    These five proceedings, brought in a short space of each other, also meet in our view the description of “frequently instituted … proceedings” as used in s 8(1)(a) of the VPA as expounded in the authorities. In particular, since the refusal of leave to appeal, four motions have been filed in an extremely short space of time, in similar or overlapping form, all directed to the same end, namely canvassing the decision to refuse leave to appeal.

18. [87]

    That leaves for consideration the fourth step, namely whether the Court should exercise its discretion to make a vexatious proceedings order. In our opinion, it should do so. In reaching this conclusion, the Court is, of course, conscious that such a decision is exceptional and caution must be exercised.

19. [88]

    The conduct of Mr Arjunan on his own behalf and on behalf of Ms Kannapiran exemplifies a determination to persist in his fight which, on one level, is understandable, but on another level, wholly unjustifiable. Resources of senior judges have been absorbed by the persistent attempts to litigate until success is achieved. That is also utterly burdensome to the Neighbourhood Association which has continuously been drawn into Mr Arjunan’s unremitting applications.

20. [89]

    It is notable that the Rothman J referred to the impermissibility of seeking to reagitate arguments in an application under r 36.16 when Mr Arjunan and Ms Kannapiran made their first reopening application, with respect to the decision of Hamill J. So, too, did N Adams J in her decision on the application to reopen the decision of Adamson J. And so did Ward P and Mitchelmore JA, along with Stern JA, with respect to the three applications to reopen made in this Court. That has not deterred the making of yet another application. It is apparent that Mr Arjunan and Ms Kannapiran are likely to continue making such applications on the basis of their refusal to accept an outcome with which they disagree.

21. [90]

    As cases such as Proietti demonstrate, a vexatious proceedings order may be tailored to the circumstances of the particular case. The vexatious proceedings have all been associated with the circumstances giving rise to the orders of the Local Court. The order set out below limits the restraint on future litigation in this Court to the subject matter comprehended by the suite of decisions referred to in the order, including this decision. Given the subject matter limitation of the order, and the persistence of the attempts to reopen the orders made, this is not a case in which it is appropriate to impose a temporal limitation.

22. [91]

    Finally, the motion filed on 5 January 2024 should be dismissed, being simply another attempt to reagitate issues already addressed by this Court.

Conclusion

1. [92]

   The following order should be made pursuant to s 8(7) of the VPA:

2. [93]

   Mr Kannapiran Chinna Arjunan and Ms Thangam Kannapiran should also be ordered to pay the costs of the Neighbourhood Association DP No 285853 of and incidental to the hearing of 15 May 2024.

3. [94]

   It also follows from these reasons that the Notice of Motion dated 5 January 2024 that had been stood over for directions to 27 May 2024 should be dismissed, pursuant to s 8(7)(c) of the VPA.