Proietti v Proietti (No 3)

1. [1]

   LEEMING JA: Mr Philip Proietti and his brother Mr Peter Proietti are in dispute. They are registered owners as tenants in common in equal shares of property at Marsfield, which they inherited from their mother. Until relatively recently, Mr Philip Proietti has lived in the property. In January 2022, Mr Peter Proietti applied for trustees to be appointed to sell the property. Those orders were made on 7 July 2022 by the Equity Division of the Court constituted by Kunc J. According to Mr Philip Proietti, the property has been sold and settlement is to occur next month.

2. [2]

   In the litigation I shall shortly describe, the applicant Mr Philip Proietti has invariably been the moving party, and I shall refer to him simply as Mr Proietti. Mr Proietti’s appeal from the order made on 7 July 2022 was dismissed by the Court of Appeal constituted by Mitchelmore JA, Basten and Griffiths AJJA on 14 October 2022: Proietti v Proietti [2022] NSWCA 234. A stay pending special leave was dismissed by the Court of Appeal constituted by Macfarlan JA on 1 December 2022: Proietti v Proietti [2022] NSWCA 268. On 9 March 2023, the High Court dismissed Mr Proietti’s application for special leave, saying that “[t]he decision of the Court of Appeal is plainly correct”: Proietti v Proietti [2023] HCASL 15. It is thereby established, conclusively, that the trustees appointed by order of the Supreme Court are entitled to sell the Marsfield property owned by the brothers.

3. [3]

   An unsuccessful appeal, and an unsuccessful application for special leave, have not prevented Mr Proietti from bringing proceedings to set aside the order made on 7 July 2022. Far from it.

4. [4]

   On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the property. Mr Proietti thereafter sought a stay of the writ of possession, and the setting aside of the orders made by the Court of Appeal dismissing his appeal from the orders appointing the trustees for sale. That application was heard by the Court of Appeal constituted by Ward P and Adamson JA, which dismissed it on 21 April 2023: Proietti v Proietti [2023] NSWCA 76. The trustees sought an order that Mr Proietti pay their costs on an indemnity basis. They also sought an order along the lines of that made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324, requiring Mr Proietti to obtain leave before filing further applications or court processes. The basis for the application was Mr Proietti’s threats to continue litigating, including by raising baseless claims of bias against judges, and running applications without reasonable prospects of success. The trustees relied upon a statement made in Mr Proietti’s submissions:

5. [5]

   However, the Court of Appeal rejected this aspect of the trustees’ application. Adamson JA who delivered the leading judgment said at [27]:

6. [6]

   Ward P agreed, adding at [1]:

7. [7]

   However, three days later, Mr Proietti filed a further notice of motion, seeking once again to discharge the orders appointing trustees for sale of the property. It appears that a writ of possession was executed by the NSW Sheriff on 27 April 2023, Mr Proietti was evicted, and the locks changed. In light of what had been intimated in the first paragraph of the judgment delivered three days earlier, the Registrar made directions for Mr Proietti to show cause why an order preventing yet further applications to be made by him without leave should not be made. Mr Proietti was heard in writing and orally against the making of such an order. The Court concluded its judgment (Proietti v Proietti [2023] NSWCA 132) as follows:

8. [8]

   On 24 July 2023, Mr Proietti filed a notice of motion, alongside an accompanying affidavit, seeking these orders:

9. [9]

   Plainly the application falls within the scope of the Teoh order made on 14 June 2023. On around 27 July 2023, the Registrar vacated the return date of the motion and advised that it would be addressed in accordance with order 2 made on 14 June 2022. The matter was allocated to me.

10. [10]

    On 4 August 2023 I caused my tipstaff to write to Mr Proietti as follows:

11. [11]

    On 15 August 2023, Mr Proietti filed 13 pages of submissions and around 100 pages of annexures, most of which were the judgments adverse to him which have been summarised above.

12. [12]

    The submissions stated that “a timely decision needs to be made on the matter” because settlement of the sale of the Marsfield property is 15 September 2023. The submission continued:

13. [13]

    The submissions outline seven reasons why Mr Proietti should not have to show cause. All in substance are Mr Proietti’s complaints with the orders made by the Court of Appeal on 14 June 2023. It is said that the “ruling” on 14 June 2023 is by the same two judges who adjudicated on his earlier challenges, that their Honours were wrong to rely upon D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, and wrong to rely on what had been said by the Court of Appeal on 17 November 2022, that their Honours were wrong in their application of rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), that their Honours did not give sufficient reasons to resolve his detailed submissions, and that there is nothing vexatious about his repeated applications because “I am simply attempting to protect my rights and preserve the subject matter under litigation”. Mr Proietti claims that “I do not think I need to provide the court anything else as to why I should show cause for the proceedings brought before it. It is the court who brought itself into disrepute, nobody else”.

14. [14]

    The submissions state that there was an unfair procedure before Kunc J. Mr Proietti says “[t]he omissions at trial level included, no directional hearings, pleadings, a timetable, a court annexed mediation, no formal request for submissions and incorrectly striking out much of my affidavit along with the associated evidence including the annexures and text messages. These are core fundamental obligations that would ordinarily require the orders to be set aside.” He says that he has been denied procedural fairness by the Court of Appeal on 21 April 2023 and 14 June 2023, as well as by the High Court. He says that it has therefore become appropriate and correct to set aside the orders in accordance with s 63 of the Civil Procedure Act 2005 (NSW).

15. [15]

    The submission concludes:

Consideration

1. [16]

   The issue before me is whether I should dismiss Mr Proietti’s motion as vexatious and an abuse of process. The Court of Appeal has power to do so, constituted by a single Judge of Appeal, pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW) read with r 13.4 of the UCPR.

2. [17]

   Mr Proietti is bound by order 2 made by the Court of Appeal on 14 June 2023. To the extent that his submission challenges the appropriateness of that order, it is misdirected.

3. [18]

   Mr Proietti has challenged the order appointing trustees for sale to the Marsfield property to the Court of Appeal, to the High Court of Australia, and twice thereafter to the Court of Appeal. It is plain from his submissions that he is dissatisfied with the outcome. I proceed on the basis that his dissatisfaction is genuine. But the genuineness of Mr Proietti’s sense of entitlement to challenge the order, and indeed to persist in challenging the order despite the decisions adverse to him, is on any view an abuse of process, and is vexatious.

4. [19]

   It is an abuse of process, and vexatious, because no litigant is entitled to approach a court again and again seeking the same relief. Mr Proietti is candid about this. He says he is simply attempting to protect his rights and to preserve the subject matter of the litigation. He may be of that view, but it is a view which is wrong as a matter of law. Ordinarily a litigant cannot apply again to the same court for the same relief which has already been refused on a final basis. Quite commonly, a litigant disappointed with the result of a hearing can apply to an appellate court to hear an appeal. Mr Proietti has done this. Sometimes, a litigant dissatisfied with the result of the appeal can apply for special leave to appeal to the High Court. Mr Proietti has done this, too. But no litigant is permitted to apply repeatedly to the same court for the same relief which has already been refused. Even though I do not expect Mr Proietti to accept this, he must appreciate that whenever a court decides a case, at least one litigant will normally be disappointed with the result, and if every disappointed litigant were permitted to apply again and again to the court for the same relief, litigation would never end.

5. [20]

   There are occasions when a further application may be made to a court after a final judgment has been given. Those occasions are rare. There is nothing in Mr Proietti’s submission to suggest they have been made out in the present case.

6. [21]

   Mr Proietti would be well advised to invite a friend whose judgment he respects, or a lawyer at a community legal centre, to read these reasons before taking further steps in what to him is, I well appreciate, a very important matter. However, for the reasons given above, the notice of motion is both vexatious and an abuse of process, and must be dismissed.