Proietti v Proietti (No 4)

HIS HONOUR: Two brothers, Philip Proietti and Peter Proietti, have been in dispute in relation to a family home which they inherited as tenants in common following the death of their mother. Peter Proietti’s application for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) was upheld by Kunc J on 30 June 2022 (Proietti v Proietti [2022] NSWSC 875). Philip Proietti appealed from that decision. The appeal was dismissed on 17 November 2022 (Proietti v Proietti [2022] NSWCA 234). Mitchelmore JA gave the leading judgment. Basten and Griffiths AJJA concurred in her Honour’s reasons.

One ground of appeal was that Philip Proietti, who had represented himself before the primary judge, had been denied procedural fairness. That ground was rejected for reasons given by Mitchelmore JA at [69]-[83].

A claim that the primary judge was biased was also rejected (at [90]-[98]). Other claims as to the merits of the primary judge’s determination that orders should be made for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act were also rejected.

Philip Proietti sought special leave to appeal to the High Court of Australia on 8 December 2022. His special leave application contended that the proceedings at first instance were conducted unfairly. Reliance was placed on decisions of this Court in DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 (at [98]) and Hamod v New South Wales [2011] NSWCA 375 (at [309]-[312]).

Special leave was refused (Gordon and Steward JJ): Proietti v Proietti [2023] HCASL 15. The High Court held that the Court of Appeal’s decision was plainly correct.

On 5 April 2023, Philip Proietti sought a stay of orders made for the issue of a writ of possession of the property. He also sought the setting aside of the Court of Appeal’s orders of 17 November 2022 pursuant to UCPR r 36.16(4) and s 63(3)(a) of the Civil Procedure Act 2005 (NSW). He did so notwithstanding that the High Court had refused special leave to appeal from that decision. That application was rejected by Ward P and Adamson JA on 21 April 2023 (Proietti v Proietti [2023] NSWCA 76).

Costs of these various unsuccessful applications are to be paid from Mr Philip Proietti’s entitlement to a share of the proceeds of sale of the property in question.

Three days later, on 24 April 2023, Mr Philip Proietti filed a further notice of motion again seeking a stay of the writ of possession and the setting aside of the orders made in the Equity Division and in the Court of Appeal.

On 1 May 2023, the Registrar of the Court of Appeal made a direction that the applicant show cause why a direction should not be made along the lines of the direction made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. In Teoh v Hunters Hill Council (No 4) this Court held that it had an inherent power to protect itself and prevent an abuse of process where repeated claims based upon the same materials had been dismissed, by prohibiting a claimant from being able to proceed on a further application without satisfying a judge in Chambers that the material filed warranted a further hearing.

On 14 June 2023, Ward P and Adamson JA dismissed the notice of motion filed 24 April 2023 and a Teoh direction was made (Proietti v Proietti [2023] NSWCA 132). Their Honours ordered:

On 24 July 2023, Mr Philip Proietti filed a yet further notice of motion seeking a stay of Kunc J’s orders of 7 July 2022 and an order setting aside the orders of the Court of Appeal of 17 November 2022 and an order setting aside the orders of Ward P and Adamson JA of 14 June 2023.

On 29 August 2023, Leeming JA dismissed that notice of motion (Proietti v Proietti (No 3) [2023] NSWCA 199).

Nothing daunted, on 28 September 2023, Mr Proietti filed a notice of motion seeking the following orders:

On 5 October 2023, Ward P nominated me to determine in Chambers whether the Court should fix a new return date and notify the parties in relation to that notice of motion, or whether Philip Proietti should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the notice of motion. On 5 October 2023, my Associate sent a letter to Mr Philip Proietti which included the following:

In response to that correspondence, Mr Philip Proietti advised that he did not wish to provide the Court with other supplementary material, but summarised the materials on which he relied. This included earlier materials that had already been considered in the various earlier applications before the Court. He also relied upon his affidavit of 25 September 2023, the substance of which was again to rely upon s 63 of the Civil Procedure Act 2005 and r 36.16(4) of the UCPR. He again referred to principles concerning the fair procedure to be provided to a self-represented litigant, citing DC v Secretary, Department of Family and Community Services [2017] NSWCA 225, as he had done in his application for special leave to appeal to the High Court. He submitted that the order of Ward P and Adamson JA that made the Teoh direction was incorrect. No application for special leave to appeal from the orders of Ward P and Adamson JA has been filed. The direction is binding. He submitted that no court or judge had addressed the issues that he had raised in regards to a denial of a fair procedure at trial. That contention is manifestly groundless. It was addressed in the reasons of Mitchelmore JA, with whom Basten and Griffiths AJJA agreed, which was the subject of the unsuccessful application for special leave to appeal to the High Court.

No new issue is raised in Mr Philip Proietti’s notice of motion. It is an abuse of process.

For these reasons I order that the applicant’s notice of motion filed 28 September 2023 be dismissed.