McGettigan v Estate of the Late Beverley Teresa McGettigan

1. [1]

   Three competing notices of motion were listed before me on 30 November 2023. First, a notice of motion filed on 28 June 2023, by which the plaintiff, John McGettigan (Mr McGettigan) seeks orders for the payment into court of $1.48 million, which is the amount he seeks to recover from the defendants in the statement of claim he filed in the proceedings on 16 June 2023 (the plaintiff’s first motion). Second, a notice of motion filed on 2 August 2023, by which the second and third defendants, Glen Coulter and Rhonda Coulter (the Coulters) seek orders that the plaintiff’s first motion and the statement of claim be struck out, and that the Court make a vexatious proceedings order under the Vexatious Proceedings Act 2008 (NSW) (VP Act) against the plaintiff restraining him from commencing proceedings against the second or third defendant or the Estates of Brian Bernard McGettigan and Beverley Teresa McGettigan without first obtaining leave of the court (the defendants’ motion). Third, a further notice of motion filed by the plaintiff on 27 October 2023, seeking orders that the Coulters be declared as vexatious litigants (the plaintiff’s second motion).

2. [2]

   The usual orders for an interlocutory hearing were not made when setting the motions down for hearing, meaning that there was no court book or other organised written submissions available when the parties appeared. At the hearing, I declined to hear the plaintiff’s second motion on the basis that no evidence had been filed in relation to it and indicated that its further progress would depend on whether the proceedings remained on foot.

3. [3]

   At the hearing the plaintiff was self-represented. At the outset of the hearing the defendants were also self-represented. However, part way into the morning session Mr Brown of counsel appeared and indicated that he had accepted late instructions to appear for the defendants. He was joined after the lunch adjournment by Mr Hanscomb of counsel.

4. [4]

   These are my reasons for concluding that the statement of claim should be struck out, the plaintiff’s motions should be dismissed, a vexatious proceedings order should be made against the plaintiff, and the present proceedings stayed. The precise form of the orders is set out at [113] below.

5. [5]

   These reasons start with a background to the litigation between the parties, and then a consideration of the defendants’ motion. The defendants’ success on their motion means that the pleadings are struck out and the plaintiff’s first and second motion should be dismissed.

Background

1. [6]

   Mr McGettigan is the brother of the late Brian McGettigan (Brian), who died on 17 April 2018. Brian was married to Beverley McGettigan (Beverley), who died on 16 July 2018. The Coulters (the second and third defendants), are Beverley’s nephew and niece, being brother and sister, and are the executors of her estate, which has been named as the first defendant by Mr McGettigan in the statement of claim in these proceedings.

2. [7]

   In 2018, the Coulters sought a grant of probate in respect of Beverley’s estate. As part of that process, they also commenced proceedings to apply for letters of administration in respect of Brian’s estate, as he had left the entirety of his estate to Beverley by a will executed in 2000 and there had been no grant of probate in the period between his death and Beverley’s death. I will refer to these proceedings as the ‘Probate Proceedings’ in these reasons.

3. [8]

   The plaintiff lodged a caveat in the Probate Proceedings. He then filed a defence on 9 November 2018 and a statement of cross-claim on 18 January 2019. The essence of his claim was that the will of Brian that the Coulters sought to propound in the proceedings was a forgery. Mr McGettigan claimed that Brian made his last will on 16 July 2016 whereby the bulk of Brian’s estate was left to him.

4. [9]

   The plaintiff also commenced proceedings in the Equity Division of this Court against the Coulters seeking to enforce seven agreements which he claimed he variously entered into with his mother (Margaret), Brian, and Beverley. I will call this the ‘2020 Equity Proceedings’. On the plaintiff’s contention, these instruments conferred on him an interest in a property called ‘Christmas Lodge’ in Tennyson, New South Wales, as well as various other properties in Brian and Beverley’s estates.

5. [10]

   Three of these agreements were said to establish a partnership between them called the ‘McGettigan Ownership Group’ (McGOG), and to make him a co-owner of the Tennyson property with Beverley. Mr McGettigan also produced four lease agreements, all purportedly executed in July 2016, that he said proved that he had a tenancy at the Tennyson property.

6. [11]

   The Probate Proceedings and 2020 Equity Proceedings were heard concurrently before Slattery J on 1–8 April, 7 May, and 16 June 2021. Mr McGettigan was self-represented at the hearing. His Honour delivered judgment on 31 August 2021 as McGettigan v Coulter; Coulter v McGettigan [2021] NSWSC 1097 (J1). In that judgment, his Honour found that each document that Mr McGettigan sought to rely upon was a forgery: J1 at [5] and [11]. Slattery J also referred his reasons to the Attorney-General for consideration as to whether a criminal prosecution should be brought against Mr McGettigan. In assessing Mr McGettigan’s credit, his Honour stated at [23]–[27]:

7. [12]

   The assessment of Mr McGettigan in J1 is an ongoing source of irritation for Mr McGettigan. As will be seen, the present proceedings are ultimately an attempt to avoid the consequences of J1. The strength of the findings against Mr McGettigan is indicated by the fact that Slattery J referred him to the Attorney-General for consideration of the bringing of criminal charges against him for his conduct.

8. [13]

   Prior to the hearing before Slattery J on 2 February 2021, Mr McGettigan commenced two further proceedings by way of statement of claim:

   1. (1)

      2021/00030066 – Christmas Lodge Horse Welfare Trust v Glen Patrick Coulter (Christmas Lodge proceedings)

   2. (2)

      2021/00030045 – John Patrick McGettigan v Glen Patrick Coulter (2021 Equity proceedings).

9. [14]

   On 8 September 2021, Mr McGettigan filed a notice of intention to appeal from the orders made in J1. This commenced appeal proceeding 2021/256597 (the Appeal proceedings).

10. [15]

    On 22 October 2021, Slattery J delivered a second judgment in the 2020 Equity and Probate Proceedings, where he made costs orders in favour of Mr and Mrs Coulter: McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356 (J2). His Honour ordered a gross sum costs order of $303,561.68 including GST: J2 at [38]. At the hearing, Mr McGettigan informed me that he does not owe those costs (“because the Coulters have lodged fraudulent documents to substantiate their claim right from the start of these proceedings” (T50.14).

11. [16]

    On 5 November 2021, Mr and Mrs Coulter filed notices of motion in the Christmas Lodge and 2021 Equity Proceedings seeking orders that the claims be dismissed.

12. [17]

    The motions filed on 5 November 2021 were heard by Parker J on 31 January 2022. His Honour dismissed the Christmas Lodge proceedings in its entirety, and made the following orders in the 2021 Equity Proceedings:

13. [18]

    Mr McGettigan provided a proposed amended statement of claim in the 2021 Equity Proceedings on 17 March 2022. Parker J made the following orders on 6 April 2022:

14. [19]

    The 2021 Equity Proceedings were then transferred to the District Court. Pursuant to ex tempore reasons given by Judicial Registrar Howard on 30 June 2022, the 2021 Equity Proceedings were dismissed pursuant to r 13.4(1)(a) and (c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). UCPR r 13.4(1) provides:

15. [20]

    Meanwhile, on 10 January 2022, Mr McGettigan filed a notice of appeal in the Appeal proceedings. It will be noted that this meant that the appeal was brought out of time. The grounds of appeal were:

16. [21]

    Mr McGettigan’s appeal was heard on 24 June 2022 before Meagher, Leeming and White JJA. On 30 June 2022, while judgment was reserved, Mr McGettigan filed a notice of motion in the Appeal proceedings seeking to reopen the case at first instance to cross-examine a witness that Mr McGettigan did not cross-examine at the hearing: McGettigan v Coulter [2022] NSWCA 166 (AJ) at [16].

17. [22]

    On 29 August 2022, the Court of Appeal delivered judgment dismissing Mr McGettigan’s appeal and his motion filed on 30 June 2022. The Court of Appeal ultimately found that Mr McGettigan’s proposed appeal (as it required a grant of leave due to being brough out of time) had “no reasonable prospects of success”: AJ at [76].

The present proceedings

1. [23]

   Mr McGettigan commenced the present proceedings by filing a statement of claim on 16 June 2023. That statement of claim seeks the following relief:

2. [24]

   Setting aside the drafting issues with the statement of claim, the primary issues that are raised by the plaintiff are the existence of a debt of $150,000 (prayer A), another debt under a ‘Sale and Debt Settlement Agreement’ that obliges the respondents to pay the plaintiff $1,330,000 (prayers B and D), and a declaration regarding the validity of an affidavit provided by ‘Heath Document Consultants’ (prayer C).

3. [25]

   The two debt claims, as will be seen below, are repetitions of claims raised in earlier proceedings. The Heath Document Consultants issue, as it was ventilated at the hearing of the notices of motion, ultimately was a mechanism for Mr McGettigan to take issue with Slattery J’s finding in J1 that he had forged various documents. That issue was also raised in the Appeal proceedings.

4. [26]

   The ‘pleadings and particulars’ section of the statement of claim sets out a history of the alleged McGOG partnership, and Mr McGettigan’s account as to how various documents came into existence.

5. [27]

   I have formed the view, for the reasons that I will explain below, that the current pleadings are an abuse of process and should be struck out. I have also concluded that the defendants should be protected by the making of a vexatious proceedings order against Mr McGettigan.

Evidence

1. [28]

   Mr McGettigan and the Coulters each read affidavits in support of their various motions.

2. [29]

   The affidavits of the Coulters contained, in addition to a broad background of the various proceedings, evidence of their interactions with Mr McGettigan over the period from July 2018 to June 2021. This includes evidence of:

   1. (1)

      Letters and text messages sent by Mr McGettigan to the Coulters with threatening and accusatory language;

   2. (2)

      Mrs Coulter also attached to her affidavit emails and letters that Mr McGettigan had sent to various New South Wales Government entities and Ministers regarding his complaints about the proceedings.

3. [30]

   Mr McGettigan’s affidavits were generally in the style of submissions and complaints about the findings that were made against him in previous proceedings.

The strike out application

1. [31]

   The defendants seek an order that the statement of claim and plaintiff’s first motion be struck out on the basis that they are an abuse of process pursuant to UCPR r 14.28. In the alternative, they seek orders pursuant to UCPR r 13.4 that the proceedings be dismissed. At the outset I will note that r 14.28 only applies to pleadings, and so cannot be a basis for dismissing the plaintiff’s first motion.

2. [32]

   The essence of the defendants’ claim is that the current proceedings are a repetition of previous proceedings or raise issues that ought to have been ventilated in prior proceedings, and therefore ought to be dismissed as an abuse of the process of the Court. Further, the defendants submit that the proceedings are being pursued for a wrongful purpose, being the harassment of them by Mr McGettigan.

3. [33]

   UCPR r 14.28 provides:

4. [34]

   The doctrine of abuse of process, both in the Court’s inherent jurisdiction and as prescribed by the UCPR, is broad and flexible. It overlaps with, but is not the same as, common law rules of finality that apply to judgments (such as cause of action estoppel, issue estoppel, and Anshun estoppel): Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]. There is no need to demonstrate the existence of an estoppel to found a finding of abuse of process: New South Wales v Williams [2014] NSWCA 177 at [49]. As was noted in Tomlinson at [26] (citing Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77):

5. [35]

   In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1], Kiefel CJ, Bell and Keane JJ said (citing Tomlinson at [25]):

6. [36]

   In a separate concurring judgment, Gageler J observed at [72] that, while the concept of abuse of process is not capable of a formulation which would confine it to closed categories, it is “undoubtably capable of application in circumstances in which use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute” (also citing Tomlinson at [25]).

7. [37]

   While in dissent as to the outcome, Nettle and Edelman JJ at [83] and Gordon J at [126] accepted that the concept extended to any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute (also citing Tomlinson at [25]).

8. [38]

   The claim the subject of prayer A in the statement of claim, outlined at [23] above is for a debt of $150,000, which Mr McGettigan claims is evidenced by a copy of a typed letter dated 10 January 2006, purportedly from Beverley to Mr McGettigan, which states:

9. [39]

   This claim is the same claim that was raised by Mr McGettigan in the 2021 Equity Proceedings. This is apparent from the statement of claim lodged by Mr McGettigan in those proceedings, tendered by the defendants in Exhibit 2, and order 1(b) of the orders made by Parker J on 31 January 2022, set out at [17] above. That claim was ultimately dismissed by Judicial Registrar Howard as part of the ex tempore decision dismissing the proceedings as an abuse of process. As a consequence, there was no final determination of the proceedings on its merits, and I am not satisfied that I can dismiss the claim on the basis of a cause of action estoppel: Sheehy v Nuix (2023) 166 ACSR 528; [2023] FCA 56 at [104].

10. [40]

    However, I am satisfied that the claim in prayer A amounts to an abuse of process in the context of the litigation launched by Mr McGettigan, and in my view the bringing of the claim serves to bring the administration of justice into disrepute.

11. [41]

    Mr McGettigan was given every opportunity to plead this cause of action before both Parker J and the District Court. He was granted an extension of time to plead the issue before Parker J and failed to do so, because he continued to ignore the limitations imposed on him by the orders made on 31 January 2022.

12. [42]

    Moreover, the basis of the claim, which is the letter set out at [38] above, has previously been identified as likely being a forgery in the evidence of Ms Holt. One of the reasons given by Ms Holt for that conclusion was that the handwritten signature above “Beverley” is misspelt “Beverly”. Slattery J ‘wholly accepted’ Ms Holt’s evidence: J1 [361].

13. [43]

    While I cannot be satisfied that his Honour made an express finding relating to that letter, as Mr McGettigan decided not to plead this cause of action in the Probate or 2020 Equity Proceedings, despite those being cases that were closely related to the current cause of action, I am satisfied that the plaintiff has had various opportunities to bring this claim. To allow Mr McGettigan now to raise these issues would be an abuse of process. I do not think there is undue prejudice caused to Mr McGettigan because the 2021 Equity Proceedings did not proceed to final determination. Any consideration for a striking out application, or dismissal pursuant to UCPR r 13.4 would have required Mr McGettigan to argue the merits of his case in order to meet a much lower threshold than that which would have applied at a final hearing. He failed to meet this burden.

14. [44]

    The claim raised in the relief sought in prayers B and D relates to a ‘sale and debt settlement agreement’ purportedly executed in 2016. That agreement was annexure B to Mr McGettigan’s affidavit sworn on 5 September 2023. It is the same agreement that was raised in the 2020 Equity Proceedings and is set out at J1 [342]. In J1 at [343]–[346] Slattery J made the following findings about this document:

15. [45]

    The claim in prayers B and D has been raised and determined in previous proceedings. The matter was reagitated on appeal, and the plaintiff’s contentions were entirely rejected: AJ [69]–[70]. To allow Mr McGettigan to now raise the same claim again would be an abuse of process. It would both cause unreasonable oppression to the defendants, in having to run exactly the same case again as that in the Probate and 2020 Equity Proceedings and bring the administration of justice into disrepute, by improperly raising issues which were previously agitated in proceedings that have been finalised.

16. [46]

    The Heath Document Consultants issue raised in Prayer C is related to Prayers B and D. Mr McGettigan seeks to obtain a determination that the sale and debt settlement agreement was valid, notwithstanding the conclusion reached by Slattery J in J1 that it is a forgery, based in part on the evidence of Ms Holt. The Heath Document Consultants documents were raised in the Appeal proceedings as a basis for the rejection of Slattery J’s findings set out at [44] above: see AJ [24]–[46].

17. [47]

    In my view, the purpose of this claim for relief is to launch another attack on the determination of the Probate Proceedings, 2020 Equity Proceedings, and Appeal Proceedings. That was how Mr McGettigan articulated the claim in the hearing of the notices of motion. By seeking to effectively reopen the case that was before Slattery J, the plaintiff is abusing the processes of the Court.

18. [48]

    The consequence of these conclusions is that the statement of claim should be struck out pursuant to UCPR r 14.28.

The defendants’ application for a vexatious proceedings order

1. [49]

   The defendants applied for an order to be made pursuant to s 8 of the VP Act restraining Mr McGettigan from instituting proceedings against either the second or third defendants, or their spouses. This is an exercise that must be engaged in cautiously, bearing in mind the serious consequences to Mr McGettigan if the order is made.

2. [50]

   Section 8 relevantly provides:

3. [51]

   The term “vexatious proceedings” is defined in s 6 to include:

4. [52]

   The term “proceedings” is defined in s 4 to include:

5. [53]

   The phrase ‘an abuse of the process of a court or tribunal’ in s 6(a) is not defined. It is not possible to categorise exhaustively the types of proceedings which may constitute an abuse of process, although the two categories identified at [36] above are well established; further illustrations can be found in Peter Taylor SC et al, Ritchie’s Uniform Civil Procedure NSW (LexisNexis, 2005 to date) at [14.28.5].

6. [54]

   As noted by Williams J in Re ENA Development Pty Ltd (in liq) [2023] NSWSC 503 at [236], the Court must follow the following four-step process when determining whether to make an order pursuant to s 8 (omitting footnotes):

7. [55]

   In Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 at [13] it was noted that the first two steps require the Court to:

8. [56]

   In relation to the third step, the word “frequently” has a relatively low threshold in this context, as explained by Leeming JA in Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [114]–[120]:

9. [57]

   If the answer to the third step is yes, the Court must then determine whether it is appropriate to exercise the power under the VP Act. There is no restriction on the matters to be taken into account when exercising this discretion, but relevant factors will include the consequences of the order for the person that will be subject to the order, as well as the protective purpose that the order serves: Re ENA Development Pty Ltd (in liq) at [243]; Attorney General for New South Wales v Collier (No 2) [2022] NSWSC 903 at [23]. The purpose of the statutory power was addressed by the Court of Appeal in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56]:

10. [58]

    As Perram J observed in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12]:

11. [59]

    I am entitled to take into account evidence of the decision and findings of fact of previous judicial decisions relation to Mr McGettigan pursuant to s 8(2)(c). The limitation imposed by s 91 of the Evidence Act 1995 (NSW) does not apply to this application: VP Act (NSW) s 8(2); King v Murinti (2018) 97 NSWLR 991; [2018] NSWCA 98 at [33].

12. [60]

    The defendants claim that the following proceedings instituted by Mr McGettigan were vexatious:

    1. (1)

       the filing of a cross-claim in proceedings 2018/174649 (being the Probate Proceedings);

    2. (2)

       the commencement by statement of claim of proceedings 2020/104101, (being the 2020 Equity Proceedings);

    3. (3)

       the filing of notices of motion in the Probate Proceedings on 31 May 2021 and 6 July 2021;

    4. (4)

       the commencement by notice of appeal proceedings 2021/256597 (being the Appeal Proceedings);

    5. (5)

       the filing of a notice of motion in the Appeal Proceedings on 30 June 2021;

    6. (6)

       the commencement by statement of claim of proceedings 2021/30066, Christmas Lodge Horse Welfare Trust v Glen Patrick Coulter (being the Christmas Lodge Proceedings);

    7. (7)

       the commencement by statement of claim of proceedings 2021/30045, John Patrick McGettigan v Glen Patrick Coulter (being the 2021 Equity Proceedings);

    8. (8)

       the commencement of the present proceedings by statement of claim.

    9. (9)

       the plaintiff’s first motion; and

    10. (10)

        the plaintiff’s second motion.

13. [61]

    I have concluded that each of these proceedings were vexatious proceedings within the meaning of s 6 of the VP Act. The basis for that finding is that in each proceeding Mr McGettigan has sought to propound documents that he fraudulently produced for the purpose of advancing his own interests in relation to the estates of Brian and Beverley McGettigan. I am satisfied that they meet the definition of vexatious proceedings.

14. [62]

    On 3 August 2018, the Probate Proceedings were commenced by the second and third defendants via summons seeking a grant of letters of administration in respect of Brian McGettigan’s estate. On 20 August 2018, Mr McGettigan lodged a caveat on the estate. On 15 October 2018, a statement of claim was filed by the Coulters.

15. [63]

    Mr McGettigan filed a defence on 9 November 2018, and a statement of cross claim on 18 January 2019. Amended versions of both pleadings were filed on 19 April 2019. The essence of both documents is that the will being propounded by the Coulters was a forgery, and that Brian McGettigan had validly executed a will dated 16 July 2016 that was largely in favour of the plaintiff. Mr McGettigan then commenced the 2020 Equity Proceedings relying on seven agreements he claimed he had entered into with his mother, Brian and Beverley.

16. [64]

    As noted above, Slattery J found that each document that Mr McGettigan sought to rely upon was a forgery. His Honour’s conclusions were affirmed on appeal: AJ at [56]–[73]. The report of Ms Melanie Holt prepared for the Probate Proceedings and the 2020 Equity Proceedings was tendered in these proceedings and I have read it (Ex 2). I note that Slattery J accepted her report in its entirety, in particular her opinion that the documents produced by Mr McGettigan bear all the hallmarks of recent production: J1 [361]. The exception to s 91 of the Evidence Act provided for by the VP Act allows the Court to utilise the findings of Slattery J as evidence for findings of fact on this application.

17. [65]

    The findings of fact that Mr McGettigan had forged the documents on which he based his claims leads inevitably to the conclusion that the commencement, as well as the conduct, of those proceedings was an abuse of process because it served the purpose of preventing the Court from conducting a fair trial and doing justice: Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 at [54]–[56]. It also sought to obstruct the Court from implementing the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) of facilitating the just, quick and cheap resolution of the real issues in the proceedings.

18. [66]

    I am satisfied, based on the evidence before the Court which includes J1, the statements of claim in each of the Probate Proceedings and the 2020 Equity Proceedings, the report of Ms Holt tendered in the Probate Proceedings and the 2020 Equity Proceedings, as well as the affidavits of the Coulters, that the filing of the cross-claim in the Probate Proceedings and the statement of claim in the 2020 Equity Proceedings, and the conduct of those claims on the basis of documents that Mr McGettigan fabricated, made each a ‘vexatious proceeding’ within the scope of the VP Act.

19. [67]

    Mr McGettigan filed two notices of motion in the Probate Proceedings on 31 May 2021 and 6 July 2021. They were both applications to reopen Mr McGettigan’s case, and were dealt with at J1 [275]–[299]. These interlocutory steps count as ‘proceedings’ within the scope of s 4.

20. [68]

    Mr McGettigan filed a motion in the Probate Proceedings on 31 May 2021 seeking leave to reopen his case, admit the affidavit of Ms Pauline Dickson, and consider that as proof that the will of Brian McGettigan dated 7 January 2000 propounded by Mr and Mrs Coulter was a forgery: J1 [275].

21. [69]

    The affidavit that he sought to admit into evidence contained text messages between Mr Tim O’Brien and Ms Dickson. They appeared to contain some evidence that was mildly helpful to Mr McGettigan’s case: J1 [276].

22. [70]

    At the hearing of the motion on 16 June 2021, the Coulters’ solicitor swore an affidavit which attached a more fulsome record of the relevant text exchange. The entire exchange was much less helpful for Mr McGettigan: J1 [277].

23. [71]

    At J1 [279]–[280], Slattery J recorded that:

24. [72]

    His Honour then dismissed the motion on the basis that the text messages that Mr O’Brien wished to enter into evidence through Ms Dickson were inadmissible hearsay as he had not called Mr O’Brien to give evidence. His Honour also noted the following at [288]:

25. [73]

    I have not received any other evidence in relation to this motion. I am satisfied on balance, based on the findings made by Slattery J, that the 31 May 2021 notice of motion was instituted for the purpose of advancing Mr McGettigan’s claim that there was a conspiracy headed by the Coulters and their associates to deprive Mr McGettigan of his property. He wanted to do so by advancing a misleading excerpt of a text message exchange. Based on my observations of the plaintiff at the hearing before me on 30 November 2023, the affidavit evidence of the Coulters, and the findings in J1 and AJ against Mr McGettigan, the belief in this conspiracy is at the heart of the litigation canvassed in this judgment.

26. [74]

    There is no basis for this belief, nor is there any evidence to support it (other than documents Mr McGettigan has fabricated). The motion was therefore advanced without reasonable ground. Mr McGettigan knew that he was not providing the entirety of the text message exchange, yet still sought to have it admitted into evidence. The 31 May 2021 motion, in my view, was also instituted to harass or cause detriment to those that he believed had wronged him. Therefore, it is properly characterised as a ‘vexatious’ proceeding.

27. [75]

    The 6 July 2021 motion should not be characterised as a ‘vexatious’ proceeding. Mr McGettigan filed the motion after being informed by the Court that this was the only way for an affidavit of Mr O’Brien to be put into evidence. Mr McGettigan was ultimately successful on his 6 July 2021 motion to reopen his evidence to include the affidavit of Mr O’Brien: J1 [294].

28. [76]

    I am satisfied that the Appeal proceedings also meet the description of a ‘vexatious proceeding’ within the scope of s 6 of the VP Act. As a preliminary matter, an appeal falls within the scope of s 4(e) as the ‘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’.

29. [77]

    The Appeal proceedings fall within the scope of ‘vexatious proceedings’ as, at the least, they are proceedings that were commenced without a reasonable prospect of success, and therefore without reasonable grounds. This follows from the following observation of Meagher JA at AJ [76] when assessing the prospects of the appeal:

30. [78]

    Further, in my view, as Mr McGettigan pursued the appeal on the basis of documents that he fraudulently produced for the purpose of the Probate Proceedings and 2020 Equity Proceedings the commencement of the appeal was an abuse of the process of the Court, and a proceeding brought for a wrongful purpose (being to obtain orders against the Coulters on the basis of fraudulent documents). Consequently, the Appeal proceedings were vexatious proceedings within the meaning of the VP Act.

31. [79]

    Mr McGettigan filed a notice of motion in the Appeal proceedings on 30 June 2022 seeking leave to reopen his case to cross-examine Mr O’Brien.

32. [80]

    Mr O’Brien’s evidence had been read as part of Mr McGettigan’s case at first instance after leave to reopen his case was granted in relation to the 6 July 2021 motion. Leave to cross-examine was refused by the Court of Appeal: AJ [22].

33. [81]

    Meagher JA noted at [22] that the evidence of the Coulters against which Mr O’Brien’s evidence was intended to be directed:

34. [82]

    I have had regard to the fact that Mr McGettigan was self-represented in those proceedings. While the application to reopen was misconceived, I do not regard it as being a vexatious proceeding.

35. [83]

    The Christmas Lodge Proceedings were commenced by the plaintiff, under the guise of ‘Christmas Lodge Horse Welfare Trust’. Mr McGettigan appeared for the ‘Trust’. The statement of claim sought the following relief:

36. [84]

    The document referred to as “the lease agreement dated 26-Jul-16” was also found by Slattery J to be a forgery: J1 [348]. That finding was upheld on appeal: AJ [73]. In both instances, the Coulters had already defended a claim brought by Mr McGettigan founded on the alleged lease agreements. That claim was finally determined. To the extent that there is any difference between the claim agitated here, and the claim that was raised in the 2020 Equity Proceedings, Mr McGettigan had every opportunity to fully articulate his claim in any way that he saw fit.

37. [85]

    Moreover, I am satisfied that the finding made by Slattery J, that the most likely explanation for these documents was that they were produced by Mr McGettigan for the purposes of the proceedings, is one that I should also adopt in these proceedings. On that basis, Mr McGettigan has committed two abuses of process in bringing the Christmas Lodge Proceedings:

    1. (1)

       reagitating issues that have been finally heard and determined; and

    2. (2)

       seeking to commit a fraud on this Court by bringing a claim on the basis of documents that were fabricated.

38. [86]

    Therefore, I am satisfied that the Christmas Lodge Proceedings were vexatious within the meaning of s 6 of the VP Act as they were an abuse of process within the scope of s 6(a). Alternatively, as the proceedings were brought relying upon documents that were previously determined to be fabricated, I am also satisfied that the proceedings were brought without reasonable grounds.

39. [87]

    The claims the subject of the 2021 Equity Proceedings were helpfully summarised by Parker J in orders 1(b) and 1(c), set out at [17] above. Broadly they are claims relating to a gold watch allegedly in the possession the Coulters as the executors of Beverley’s estate, and a debt claim on the basis of the 10 January 2006 letter in the sum of $150,000. As noted at [39] above, the latter claim is repeated in the current proceedings.

40. [88]

    The 2021 Equity Proceedings were dismissed pursuant to UCPR r 13.4 by Judicial Registrar Howard after being transferred to the District Court. This followed Mr McGettigan being given the opportunity to replead his claims in this Court and failing to avail himself of that opportunity in a manner consistent with the orders of Parker J. I am entitled to take into account that the proceedings were dismissed as both ‘frivolous and vexatious’ (r 13.4(a)) as well as an ‘abuse of process’ (r 13.4(c)). I do not have the ex tempore reasons for that determination before me, but I may take into account the orders pursuant to s 8(2)(b) of the VP Act.

41. [89]

    I am satisfied that the 2021 Equity Proceedings should be characterised as vexatious as Judicial Registrar Howard’s decision is a strong indicator that the proceedings were an abuse of process; and the proceedings bring up claims relating to Beverley’s estate that should have been raised in the Probate Proceedings or the 2020 Equity Proceedings.

42. [90]

    There are three acts that may be considered as the institution of ‘proceedings’ within the scope of s 4 of the VP Act:

    1. (1)

       the filing of the statement of claim;

    2. (2)

       the filing of the plaintiff’s first motion; and

    3. (3)

       the filing of the plaintiff’s second motion.

43. [91]

    For the reasons set out above in relation to the strike out application, I am satisfied that the claims pursued by the plaintiff in the current proceedings by the statement of claim are an abuse of process and fall within the scope of s 6 of the VP Act.

44. [92]

    The plaintiff’s first motion seeks the following orders:

45. [93]

    There is no basis for the seeking of these orders. They are effectively a repeat of the statement of claim. Mr McGettigan’s written submissions filed in relation to the notice of motion, as well as his oral submissions made at the hearing, make it clear that he considers the motion a way to challenge the findings made by Slattery J in J1. As part of this process, he advances various personal attacks on his Honour, as well as on the Coulters.

46. [94]

    In my view, the plaintiff’s first motion is a mechanism for the plaintiff to continue to pursue the claims that have been rejected both at first instance and on appeal and are properly characterised as vexatious within the meaning of s 6 of the VP Act.

47. [95]

    The plaintiff’s second motion is patently an attack on the Coulters, as well as Slattery J. They contain numerous unfounded accusations of bias and other matters.

48. [96]

    The orders sought in the plaintiff’s second motion are:

49. [97]

    The notice of motion then sets out a narrative in which Mr McGettigan challenges the entirety of the previous proceedings against him. Mr McGettigan makes broad accusations that judicial officers were ‘complicit’ in ‘theft’, that the Coulters perjured themselves, that the Coulters’ legal representatives have acted improperly, and that the Coulters have devised a scheme, with the aid of their legal representatives, to deprive Mr McGettigan of assets that he believes belong to him.

50. [98]

    There is no basis for any of these claims. Mr McGettigan had the opportunity to prove his claims in relation to the estates of Brian and Beverley in the Probate Proceedings and the 2020 Equity Proceedings. He failed after a lengthy trial and availing himself of the opportunity to appeal the judgment against him. The plaintiff’s second motion is the latest attempt to continue Mr McGettigan’s ongoing harassment of the Coulters.

51. [99]

    It should be noted that the plaintiff’s second motion was filed after the filing of the defendant’s motion. This follows a familiar pattern, the attempt by the Coulters to defend themselves invokes a tit-for-tat response from Mr McGettigan in the form of a motion seeking equivalent relief against the Coulters.

52. [100]

    I am satisfied that when considered in context, and by the substance of the motion, the plaintiff’s second motion is a proceeding that has been instituted without reasonable ground, was instituted to further harass or annoy the Coulters, and has been conducted to achieve a wrongful purpose. Therefore, it is a vexatious proceeding for the purposes of s 6 of the VP Act.

53. [101]

    As a consequence, I have found that Mr McGettigan has instituted the following vexatious proceedings:

    1. (1)

       the cross-claim in the Probate Proceedings;

    2. (2)

       the 2020 Equity Proceedings;

    3. (3)

       the 31 May 2021 motion in the Probate Proceedings;

    4. (4)

       the Appeal proceedings;

    5. (5)

       the Christmas Lodge Proceedings;

    6. (6)

       the 2021 Equity Proceedings;

    7. (7)

       the current proceedings;

    8. (8)

       the plaintiff’s first motion;

    9. (9)

       the plaintiff’s second motion.

54. [102]

    As noted by Leeming JA in Potier, the term ‘frequently’ does not impose a high threshold for the making of orders under s 8, nor is it simply a matter of totalling the number of proceedings before reaching a number that could be characterised as ‘frequent’. The inquiry is contextual and considers the nature of the applications. That includes the ‘quality of vexatiousness’ of the proceedings.

55. [103]

    In this case I have found that Mr McGettigan has launched nine vexatious proceedings against the Coulters, alleging fraud and other wrongdoing by them in just under 5 years. They all pursue the same goal: holding Mr and Mrs Coulter to account for not conforming to Mr McGettigan’s perception of what he is entitled to out of Brian and Beverley’s estates based on allegations of fraud and other serious wrongdoing which are unsubstantiated. Mr McGettigan intensifies his harassment when the Coulters attempt to defend themselves. The attacks appear to be increasing in frequency, given that three of the proceedings were instituted from June to October this year. One of the identified proceedings (the 31 May 2021 motion) is of a lower quality of vexatiousness in the sense that it was a procedural motion. However, it was pursued with the same end goal as the other proceedings.

56. [104]

    Mr McGettigan has effectively launched the same proceeding multiple times, even following final judgments against him. He has done so despite there being findings that the bases of his claims are fraudulent, that he has instituted proceedings as an abuse of process, and without a reasonable basis. This is not a case where Mr McGettigan has launched a number of inappropriate procedural actions that were defeated by technicalities, but instead the repeated and consistent commencement of serious cases founded on fraudulent documents.

57. [105]

    In those circumstances, I am satisfied that he has ‘frequently’ instituted vexatious proceedings.

58. [106]

    I must be satisfied that it is appropriate in all the circumstances for a vexatious proceeding order to be made against Mr McGettigan, by reference to the purpose of the VP Act. The purpose of the VP Act is to ‘shield other litigants from harassment and to protect the court itself from the expense, burden and inconvenience of baseless and repetitious suits’: Teoh (No 8) at [56]. The imposition of a vexatious proceeding order is not to punish the respondent for past misdeeds.

59. [107]

    The affidavit evidence sworn by the Coulters indicates that there has been a sustained campaign by Mr McGettigan against them both inside and outside of the courtroom. The evidence of previous judicial decisions and orders indicate that Mr McGettigan is undeterred by adverse findings against him and is in fact spurred on by those findings. That conduct is relevant to the exercise of my discretion insofar as I am assessing the requirement for the Coulters’ protection from the hassle, time, and expenditure caused by the imposition of further litigation by Mr McGettigan. Mr McGettigan is not a litigant who ‘displays insight into their previous litigious history’, to adopt the language employed by Perram J in Gargan at [12].

60. [108]

    As I have made clear, he refuses to accept that he has lost in any of the previous proceedings, or that he cannot continue to challenge those findings. He also continues to believe in the existence of an ever-broadening conspiracy against him. That net has expanded from Beverley, to the Coulters, to the Coulters’ representatives, and ultimately to this Court. As long as Mr McGettigan continues to believe that he has been wronged and has not truly lost any proceedings that net will continue to grow in his mind.

61. [109]

    In making these orders I am not punishing Mr McGettigan for his previous conduct, but merely recognising that it is very likely that he will continue to launch proceedings against the Coulters and that should not be permitted.

62. [110]

    I am satisfied that it is appropriate in all the circumstances that a vexatious proceedings order be made restraining the plaintiff from instituting proceedings against the second and third defendants and their respective spouses. I agree with the submissions made by Mr Brown that it is appropriate for the order to include the spouses as it is likely that Mr McGettigan will attempt to find alternative ways to include them in future litigation.

63. [111]

    I am also satisfied that it is appropriate to restrain Mr McGettigan from bringing any proceedings relating to the estates of Brian or Beverley McGettigan, as he has already been given every opportunity to ventilate his claims in relation to these estates.

Orders

1. [112]

   For the above reasons, the defendants have been successful in their motion to strike out the statement of claim pursuant to UCPR r 14.28. As I have concluded that these proceedings are vexatious proceedings I will permanently stay them pursuant to s 8(7)(a) of the VP Act. It follows that the plaintiff’s motions should also be dismissed.

2. [113]

   I will make the following orders:

   1. (1)

      The plaintiff’s statement of claim in proceedings 2023/192712 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

   2. (2)

      The plaintiff’s motions filed on 28 June 2023 and 27 October 2023 are dismissed.

   3. (3)

      Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) proceedings 2023/192712 and any other ongoing proceedings brought by the plaintiff against the second or third defendants are stayed.

   4. (4)

      Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the plaintiff, John Patrick McGettigan, is prohibited from instituting proceedings in New South Wales against:

   5. (5)

      Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), the plaintiff, John Patrick McGettigan, is prohibited from instituting any proceedings in New South Wales against any person in relation to:

   6. (6)

      The plaintiff pay the defendants’ costs of the proceedings as agreed or assessed.

   7. (7)

      Liberty to the defendants to apply for a variation of the costs order within 7 days of the date of this order.