Proietti v Proietti

1. [1]

   THE COURT: By an order made on 14 December 2023, Ward P listed this matter for hearing before a Court to be constituted in due course 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 Philip Proietti pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (VPA).

2. [2]

   Mr Proietti has instituted a large number of proceedings in the Equity Division of the Supreme Court of New South Wales and in the Court of Appeal in the context of a dispute with his brother, Mr Peter Proietti, in relation to what was the family home at Marsfield (the Marsfield Property). The brothers inherited the Marsfield Property from their late mother, Ms Miranda Proietti, as tenants in common in equal shares.

3. [3]

   Without intending any disrespect, we will refer to each of Mr Philip Proietti, Mr Peter Proietti and Ms Miranda Proietti by their given names.

4. [4]

   On 17 January 2022, Peter filed a summons in the Equity Division seeking orders pursuant to s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act) to appoint trustees to sell the Marsfield Property. Philip opposed the orders. Kunc J delivered judgment on 30 June 2022 (Proietti v Proietti [2022] NSWSC 875) and made orders for trustees of sale of the Marsfield Property to be appointed (the original orders).

5. [5]

   Philip unsuccessfully appealed from this decision to the Court of Appeal: Proietti v Proietti [2022] NSWCA 234.

6. [6]

   Philip was also unsuccessful in his application for special leave to appeal to the High Court of Australia: Proietti v Proietti [2023] HCASL 15. This application was determined on 9 March 2023.

7. [7]

   Following this unsuccessful special leave application, Philip has initiated five further proceedings in the Court of Appeal in relation to the original orders. That is the context in which this Court comes to consider, of its own motion, whether orders should be made prohibiting Philip from instituting proceedings in New South Wales pursuant to s 8 of the VPA. It will be necessary to return to the factual background and the procedural history of the litigation in more detail later in these reasons but it is first desirable to set out the legislative context and the case law that has developed in relation to it.

Applicable statutory provisions and case law

1. [8]

   Section 8(1)(a) of the VPA establishes that this Court may make a vexatious proceedings order where the Court is satisfied that the person has “frequently instituted or conducted vexatious proceedings in Australia” (emphasis added).

2. [9]

   This Court is authorised by s 8(4) of the VPA to make a vexatious proceedings order of its own motion. This Court has, on various occasions, exercised such jurisdiction: see Macatangay v New South Wales [2012] NSWCA 374 at [3], [10] (Macatangay); Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [7], [72] (Teoh (No 8)).

3. [10]

   “Proceedings” are widely defined under s 4 of the VPA to include:

4. [11]

   “Vexatious proceedings” are defined in s 6 of the VPA to include:

5. [12]

   The reference in s 6(a) of the VPA to “proceedings that are an abuse of the process of a court” invokes a vast body of case law in relation to the doctrine of abuse of process. In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] (UBS AG), three members of the High Court referred to:

6. [13]

   In Re Golding [2020] HCA 38; (2020) 94 ALJR 1014 at [11] (Golding), Nettle J observed that there may be an abuse of process where a party makes multiple interlocutory applications concerning the same or related grounds:

7. [14]

   The abuse of process doctrine is broader in scope than the preclusive estoppels, as acknowledged in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] where it was observed that:

8. [15]

   Proceedings may amount to an abuse of process irrespective of the intention of the moving party: Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14], [18]-[23]; see also Collier at [56]-[58]. This is reflected in the terms of s 6(d) of the VPA.

9. [16]

   Section 8(2) of the VPA establishes that, when considering whether to make a vexatious proceedings order under s 8(1), an authorised court can have regard to:

10. [17]

    In summary, this Court may, having regard to the factors in s 8(2) of the VPA, make a vexatious proceedings order under s 8(1) against a person where that person “frequently” institutes or conducts proceedings, which satisfy any of the four criteria established by s 6.

11. [18]

    In Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 (Potier), Leeming JA engaged in a detailed analysis of the construction which “frequently” should receive in the context of the VPA. His Honour’s analysis at [114]-[118] led to the conclusion that the term “frequently”, as it applies to orders under s 8 of the VPA, should impose a “relatively low threshold”:

12. [19]

    Leeming JA continued in Potier, at [119]-[120], that the proportion of proceedings instituted by a person which are found to be vexatious was: (i) not relevant to the threshold being satisfied; but (ii) “highly relevant” to the “exercise of discretion to make an order, if the threshold condition is satisfied”.

13. [20]

    Earlier, in Teoh (No 8) at [46]-[50], the Court said:

14. [21]

    By s 8(7)(b), the Court may make an order prohibiting a person from instituting proceedings in New South Wales and, by s 8(7)(c), “any other order that the Court considers appropriate in relation to the person”. The breadth of orders that may be made will vary with the facts of particular cases. They may be expressed by reference to particular subject matter. Thus, in many cases, vexatious proceedings orders only preclude further litigation concerning the subject matter of the impugned vexatious proceedings, and not subject matter which is unrelated to the impugned proceedings: see, for example, Re ENA Development Pty Ltd (in liq) [2023] NSWSC 503 at [355]; Teoh (No 8) at [72]. They may also be formulated and drawn with temporal limitations.

15. [22]

    While a vexatious proceedings order can prohibit a person from commencing proceedings, whether generally or in respect of a specific set of proceedings against specific parties, as Basten JA acknowledged in Potier at [17], the Court should exercise restraint when considering the scope of a vexatious proceedings order, recognising the important principle of open access to justice. His Honour noted that any limitation on access by a person to the court should be “to no greater extent than is proportionate to the needs of the particular case.” See also Teoh (No 8) at [56] where this Court observed that “an order restricting a person’s access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly”.

16. [23]

    In Teoh (No 8), the Court outlined factors relevant to an exercise of the discretion to make a vexatious proceedings order:

17. [24]

    Finally, as Kirk JA acknowledged in Collier at [61], a vexatious proceedings order does not preclude the affected individual from litigating in New South Wales absolutely. Rather, as s 13 of the VPA provides, vexatious proceedings orders impose a preliminary requirement, by which, if proceedings are commenced of the kind to which the order relates without leave, the proceedings are stayed until they are dismissed. The corollary is that access to the courts by a person the subject of a vexatious proceedings order is constrained by the need to obtain leave of the Court prior to the institution of proceedings.

18. [25]

    As was also pointed out in Collier at [45], determining whether to make a vexatious proceedings order against a person involves four steps of analysis (see also Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 at [13]-[15] (Zepinic)):

19. [26]

    Before undertaking this analysis, it is necessary to set out in a little more detail the background to, and procedural history of, Philip’s litigation in this Court. The background is taken from earlier judgments of the Court including the decision of Kunc J

Background and procedural history

1. [27]

   Philip lived in the Marsfield Property for more than 30 years, being “the vast majority of his life”, including caring for his father, Mr Giuseppe Proietti, who suffered from Alzheimer’s disease for about four years until he passed away in 2015.

2. [28]

   In 2016, Philip was admitted to hospital with severe pancreatitis. Philip described the Marsfield Property as becoming his “hospital” and an important aspect of his life. Miranda helped Philip recover, and in return he assisted her with home duties and dealing with the loss of her husband.

3. [29]

   On 28 November 2019, Miranda passed away due to pancreatic cancer. She made her last will on 17 March 2016 (the 2016 Will). By the 2016 Will, Miranda devised and bequeathed her entire estate upon trust to be divided equally between Philip and Peter. The terms of the 2016 Will were as follows:

4. [30]

   Clause 3 of sch 1 to the 2015 Will made specific provision for Philip to reside in the Marsfield Property for “up to four (4) years from the date of [Miranda’s] death”. Clause 3 of sch 1 of that will provided:

5. [31]

   On 23 March 2020, probate was granted of the 2016 Will. Following the grant of probate, Philip and Peter were registered as tenants in common in equal shares.

6. [32]

   Peter and Philip had agreed, at least by 23 February 2020, that Philip could continue occupying the Marsfield Property, which would not be sold before late 2021 or early 2022. Philip paid rent from 1 July 2020 and continued doing so until 28 July 2021.

7. [33]

   Peter and Philip eventually fell into disagreements concerning the administration of the Marsfield Property, as documented in text messages dated from 24 to 30 September 2021, which were not resolved. Such disagreements led to Peter commencing proceedings in the Supreme Court by summons, filed on 17 January 2022. These were the proceedings heard by Kunc J which were subsequently the subject of an unsuccessful appeal to this Court (Proietti v Proietti [2022] NSWCA 234) and the unsuccessful application for special leave to appeal to the High Court.

8. [34]

   It is the following five sets of proceedings in this Court that have occasioned its consideration of whether orders should be made under the VPA. These proceedings, which will be identified in greater detail below, were as follows:

   1. (1)

      Proietti v Proietti [2023] NSWCA 76;

   2. (2)

      Proietti v Proietti [2023] NSWCA 132;

   3. (3)

      Proietti v Proietti (No 3) [2023] NSWCA 199;

   4. (4)

      Proietti v Proietti (No 4) [2023] NSWCA 251; and

   5. (5)

      Proietti v Proietti (No 5) [2023] NSWCA 284.

9. [35]

   To put these proceedings in context, the detail of the original proceedings before Kunc J and the unsuccessful appeal to this Court must be considered.

10. [36]

    By summons filed on 17 January 2022, Peter sought an order pursuant to s 66G of the Conveyancing Act for the sale of the Marsfield Property. Philip sought to resist Peter’s application for a s 66G order by asserting claims in proprietary estoppel, promissory estoppel and contract against Peter.

11. [37]

    The procedural background to the first instance proceedings was summarised in Proietti v Proietti [2022] NSWCA 234 at [37]:

12. [38]

    Philip relied upon an affidavit sworn by him on 16 March 2022. Peter relied upon two affidavits, sworn on 22 December 2021 and 11 April 2022. In respect of Philip and Peter’s evidence, Kunc J made the following observations at PJ [6]-[7]:

13. [39]

    The primary judge also emphasised at PJ [9] that:

14. [40]

    The primary judge explained that there were three contested factual matters which were crucial to determining Philip’s claims in equitable estoppel and contract (PJ [34]):

15. [41]

    In relation to the first factual issue, concerning Peter’s alleged knowledge of the 2015 Will, the primary judge held that:

16. [42]

    In relation to the second factual issue, being Peter’s alleged undue influence over his late mother, resulting in the changing of her will between 2015 and 2016, the primary judge held at PJ [43] that:

17. [43]

    In relation to the third factual issue, concerning Peter’s alleged representation to Philip that there would be no sale of the Marsfield Property until 2023, the primary judge held that:

18. [44]

    Having determined the key factual issues, the primary judge considered Philip’s proprietary and promissory estoppel claims. His Honour noted at PJ [56] that, despite being self-represented, Philip had engaged in thorough research to support his submissions:

19. [45]

    The primary judge rejected Philip’s claim in proprietary estoppel holding that:

20. [46]

    The primary judge also rejected Philip’s promissory estoppel claim at PJ [72], holding that:

21. [47]

    The primary judge rejected Philip’s claim in contract, holding at PJ [75] that:

22. [48]

    In turn, the primary judge held that a s 66G order should be made to facilitate the sale of the Marsfield Property by trustees.

23. [49]

    On 7 July 2022, the primary judge made the following orders:

24. [50]

    On 25 July 2022, Philip filed a Notice of Appeal and a Notice of Motion for an extension of the stay which was granted by Kunc J on 7 July 2022 (see Order 9 outlined in [49] above). The appeal and Notice of Motion were heard by Mitchelmore JA, Basten AJA and Griffiths AJA, on 14 October 2022: Proietti v Proietti [2022] NSWCA 234.

25. [51]

    Philip raised six grounds of appeal from the primary judge’s orders, arranged under headings entitled: (i) judicial process; (ii) affidavit; (iii) bias judge; (iv) errors of law; (v) further evidence; and (vi) non-compliance dismissal.

26. [52]

    In relation to Ground 1 of the appeal, Mitchelmore JA (with whom Basten and Griffiths AJJA both agreed) summarised Philip’s arguments as follows:

27. [53]

    Mitchelmore JA rejected Peter’s arguments concerning procedural fairness, holding that:

28. [54]

    In relation to Ground 2 of the appeal, Philip contended that:

29. [55]

    Mitchelmore JA rejected both arguments. As their Honours noted, Philip received a copy of the Court Book in advance of the hearing at first instance. Furthermore, Philip was provided the opportunity on appeal to consider the primary judge’s ruling, and to make submissions on why the evidence which was rejected by the primary judge should have been admitted. Mitchelmore JA rejected Philip’s contention that the primary judge was erroneous in excluding the impugned evidence at first instance.

30. [56]

    In relation to Ground 3 of the appeal, Philip alleged that the primary judge was biased, either in the actual or apprehended sense. Mitchelmore JA rejected Philip’s claim of actual bias at [96], holding that:

31. [57]

    In relation to Ground 4 of the appeal, Philip alleged that the primary judge erred in finding that Peter lacked knowledge of the 2015 Will. Mitchelmore JA rejected this contention, holding that:

32. [58]

    Grounds 5 and 6 of the appeal were dismissed on the following basis:

33. [59]

    The Court dismissed the appeal, and ordered that orders 1, 2, 4 and 8 (see [49] above) be stayed for 28 days from the date of judgment. The Court also dismissed a further Notice of Motion filed on 25 July 2022, which sought the following orders:

34. [60]

    By Notice of Motion filed on 1 December 2022, Philip sought an extension of the stay orders made by the Court of Appeal (see [59] above) pending his special leave application to the High Court of Australia: see Proietti v Proietti [2022] NSWCA 268.

35. [61]

    Macfarlan JA rejected the application for an extension of the stay, explaining that:

36. [62]

    His Honour also noted at [8] that Philip’s claimed right to four years of occupation at the Marsfield Property would likely have elapsed by the time that any decision of the High Court would be made, rendering the special leave application somewhat futile.

37. [63]

    On 9 March 2023, Gordon and Steward JJ refused Philip’s application for special leave to appeal: see Proietti v Proietti [2023] HCASL 15. Their Honours held at [1] that:

38. [64]

    On 10 March 2023, the Supreme Court granted leave for a writ of possession to be issued in respect of the Marsfield Property.

39. [65]

    On 14 March 2023, Philip applied for the leave to be revoked. Lindsay J refused to make an order in response to the application.

40. [66]

    By Amended Notice of Motion filed on 5 April 2023, Philip sought the following orders from this Court:

41. [67]

    The first order was refused by Adamson JA (Proietti v Proietti [2023] NSWCA 76 at [17] (Ward P agreeing)) on the basis that: (i) the stay application before Macfarlan JA would only operate until the special leave application was decided; and (ii) the special leave application had been refused.

42. [68]

    The second order was also refused since Philip had now exhausted all available avenues to appeal against the orders of the primary judge. Adamson JA held at [20]:

43. [69]

    Her Honour also rejected an argument advanced by Philip by reference to s 63 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), holding at [22] that:

44. [70]

    In the course of this application, the trustees for the sale of the Marsfield Property also sought a Teoh direction in relation to future proceedings by Philip (Teoh direction): see Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. The application was made on the basis that Philip was likely to continue instituting proceedings in relation to the Marsfield Property, thwarting the trustees’ capacity to sell the Marsfield Property. Adamson JA declined to give a Teoh direction on that occasion, explaining at [27] that she was:

45. [71]

    On 24 April 2023, three days after Ward P and Adamson JA had dismissed the Amended Notice of Motion of 5 April 2023, Philip filed a further Notice of Motion, seeking a stay of the writ of possession over the Marsfield Property, and seeking to set aside various orders made by Kunc J and the Court of Appeal in the appeal from his Honour’s orders.

46. [72]

    In a judgment delivered on 14 June, the Court (again constituting Ward P and Adamson JA) explained that the orders sought in the Notice of Motion were “in essence the same relief” as that sought in the previous proceedings: see Proietti v Proietti [2023] NSWCA 132 at [2].

47. [73]

    In the reasons, their Honours noted that:

    1. (1)

       Philip had filed an additional Notice of Motion dated 25 April 2023 seeking a stay of execution for “about” seven days, and that, on 26 April 2023, Lindsay J as duty judge in the Equity Division, heard and dismissed that motion, ordering costs on an indemnity basis.

    2. (2)

       on 27 April 2023, the writ of possession was executed by the NSW Sherriff, resulting in Philip being evicted from the Marsfield Property and the trustees for sale being in possession of the Marsfield Property.

    3. (3)

       on the same day, the trustees asserted that Philip appeared before the Equity Duty Judge, seeking to file a further Notice of Motion dated 26 April 2023, and have it heard instanter but that Lindsay J made no orders in response to this application.

    4. (4)

       on 1 May 2023, the Registrar of the Court of Appeal directed Philip to show cause as to why a Teoh direction should not be made.

48. [74]

    In dismissing Philip’s Notice of Motion of 24 April 2023, Ward P and Adamson JA explained at [28] that:

49. [75]

    The Court concluded at [30] that a Teoh direction should be made against Philip noting that such a direction was “no small thing”, given its function of restricting an individual’s “right to access the courts”: at [32]. However, it was observed at [33] that:

50. [76]

    An abuse of process arises, the Court explained at [34], where continuing proceedings “will bring the administration of justice into disrepute”: see UBS AG at [1] and [44]. The Court also observed at [34], conformably with long established authority, that proceedings can be “unjustifiably vexatious and oppressive where it is sought to litigate anew a case already disposed of in earlier proceedings”.

51. [77]

    Their Honours then said at [35]-[39]:

52. [78]

    The Court dismissed Philip’s 24 April 2023 Notice of Motion on 14 June 2023 and made the following orders at [40]:

53. [79]

    Some 5 ½ weeks later, on 24 July 2023, Philip filed a further Notice of Motion, seeking the following orders:

54. [80]

    Given that the application fell within the scope of the Teoh direction made on 14 June 2023, the Registrar vacated the return date of the motion and advised that it be addressed in accordance with order 2 made by this Court on 14 June 2022.

55. [81]

    In turn, Leeming JA’s tipstaff wrote to Philip, explaining that, in accordance with order 2, he was “invited to show cause in writing why the motion should not be summarily dismissed as vexatious and an abuse of process”.

56. [82]

    Leeming JA summarised Philip’s contentions in Proietti v Proietti (No 3) [2023] NSWCA 199 as follows:

57. [83]

    Leeming JA dismissed Philip’s Notice of Motion on 29 August 2023, explaining that:

58. [84]

    On 28 September 2023, just under a month after Leeming JA had dismissed Philip’s Notice of Motion of 24 July 2023, Philip filed a further Notice of Motion seeking the following orders:

59. [85]

    On 5 October 2023, White JA’s associate sent a letter to Philip inviting him to show cause as to why his application was not an abuse of process or vexatious.

60. [86]

    White JA summarised Philip’s arguments and dismissed his Notice of Motion on 20 October 2023 as vexatious and an abuse of process (Proietti v Proietti (No 4) [2023] NSWCA 251) explaining that:

61. [87]

    On 13 November 2023, just over three weeks after White JA’s decision, Philip filed a further Notice of Motion seeking the following orders:

62. [88]

    On 17 November 2023, Payne JA’s associate invited Philip to provide submissions concerning why the Notice of Motion should not be deemed vexatious and an abuse of process.

63. [89]

    Payne JA observed that Philip’s submissions “do not raise any new issue” (Proietti v Proietti (No 5) [2023] NSWCA 284 at [12]) and dismissed the Notice of Motion as vexatious and an abuse of process: see [13]-[14]. His Honour continued, explaining at [15] that:

64. [90]

    On 27 November 2023, Payne JA ordered at [16] that:

65. [91]

    On 14 December 2023, Ward P held a directions hearing to list the matter for oral hearing on 22 February 2024 in order for the Court to consider by its own motion whether it should make a vexatious proceedings order against Philip.

Consideration

1. [92]

   Given that the trustees did not wish to be heard on the Court’s motion, Ward P determined that an amicus curiae should be appointed to assist the Court. To that end, Ms Laina Chan and Ms Michelle Meares appeared as amici curiae and filed very helpful written submissions supplemented by brief oral submissions. The Court is grateful for the assistance provided by them. They submitted that the following five sets of proceedings could fairly be characterised as vexatious and were capable of sustaining the making of a vexatious proceedings order: Proietti v Proietti [2023] NSWCA 76; Proietti v Proietti [2023] NSWCA 132; Proietti v Proietti (No 3) [2023] NSWCA 199; Proietti v Proietti (No 4) [2023] NSWCA 251; and Proietti v Proietti (No 5) [2023] NSWCA 284. It is this set of five proceedings which constitutes the proceedings to be assessed as potentially vexatious (within the first of the four steps identified above at [25]).

2. [93]

   Philip filed detailed written submissions opposing the making of any orders under the VPA, and advanced oral submissions for nearly 90 minutes in elaboration of his written submissions and also by way of reply to Ms Chan’s brief oral submissions.

3. [94]

   Philip submitted that each of the five proceedings identified at [92] were not vexatious for two main reasons: first, that the proceedings were instituted to pursue justice, consistently with s 56 of the Civil Procedure Act; and second, Philip contends that the five proceedings cannot involve a re-agitation of issues where the earlier decisions were erroneous in fact and law, and thus remain unresolved.

4. [95]

   Both of these arguments have as their underpinning an implicit asserted entitlement to continue to litigate until Philip secured what he considers to be the satisfactory result. There is no such entitlement. Moreover, he equates that satisfactory result with one in which his arguments in relation to the Marsfield Property succeed. That is equally untenable. Philip’s statement in [5] of his written submissions in this Court well captures his mindset: “The inevitable injustice that has occurred has forced myself to pursue neverending litigation to preserve my rights and for justice to prevail.” (emphasis added.)

5. [96]

   The tenor of Philip’s submissions can also be discerned from the following passages of transcript from the hearing of the application:

6. [97]

   At a later point in the oral hearing, the following interaction occurred in relation to Philip’s submission that Kunc J had manifested bias against him in the original hearing:

7. [98]

   In his written and oral submissions, Philip criticised the decision of the High Court to reject his application for special leave to appeal and complained that the High Court’s decision lacked detailed reasoning. His complaint was made without appreciating that “…the jurisdiction [the High Court] exercises in determining an application for special leave to appeal ‘is not a proceeding in the ordinary course of litigation’ but ‘a preliminary procedure recogni[s]ed by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention’”: Bromley v The King [2023] HCA 42; (2023) ALJR 84 at [1]. This jurisdiction involves a “wide discretion [which] can commonly be exercised without the provision of detailed or, sometimes, any reasons”: Coulter v The Queen (1988) 164 CLR 350 at 359-360; [1988] HCA 3; cf Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; [2001] HCA 49 at [25].

8. [99]

   Philip also refused to accept that this Court had no power to review the High Court’s decision, despite this being politely pointed out to him from the Bench. He argued that s 63 of the Civil Procedure Act would allow this Court to reopen the High Court’s rejection of his special leave application:

9. [100]

   Philip contended that the asserted lack of natural justice or procedural fairness afforded to him created an exception to the principle that a court cannot review its own final and perfected orders. A threshold difficulty with this argument is that Philip’s claims to have been denied procedural fairness before Kunc J were heard and rejected by the Court of Appeal in November 2022: see [50] above. As the High Court confirmed when determining the special leave application, that decision was “plainly correct” (see [63] above).

10. [101]

    The asserted denials of procedural fairness related to the fact that directions hearings had not been held prior to the trial, that Kunc J had made certain evidentiary rulings rejecting portions of his evidence, and that the case had not proceeded on pleadings. These matters were once again rehearsed in this Court, and have no merit whatsoever, putting aside that they have already been fully dealt with in this Court’s earlier decisions. Directions were given prior to the hearing to which Philip consented. Whether or not a matter properly commenced by Summons proceeds on pleadings or points of claim is quintessentially a matter for the list or trial judge or registrar. If any matters were appropriate for pleadings, they were the claims in estoppel and contract made by Philip himself by way of his cross-claim. He did not need pleadings for the purpose of making his own arguments.

11. [102]

    As this Court held in Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], “[d]isagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias”; see also Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]. The same observation may be applied to allegations of apprehended bias, as continued to be made by Philip in the present case.

12. [103]

    Furthermore, Philip’s reliance on s 63 of the Civil Procedure Act was hopeless and, in any event, had been rejected by Adamson JA and Ward P in April 2023: see [69] above. Leeming JA also rejected such an argument: see Proietti v Proietti (No 3) [2023] NSWCA 199 at [20], extracted at [82]-[83] above.

13. [104]

    Philip’s written submissions, with respect, recall the observations of the Court of Appeal in Macatangay at [6], namely that “it is fair to say that the various contentions contained in the document are precisely the same contentions that she has been advocating in the various proceedings that she has instituted since the decision of Grove J and in all of which she has been unsuccessful.”

14. [105]

    It is clear that Philip has been deeply affected by the outcome of the proceedings before Kunc J and the rejection of his appeal to the Court of Appeal. That is the fate of many litigants. As the above extracts of the transcript make plain, one of his much-repeated submissions was that it is he who is being oppressed by the Courts and not the other way around. His persistent subsequent applications to this Court illustrate the strength of his feeling about the adverse result he sustained. As he submitted during the oral hearing on 22 February 2024:

15. [106]

    As difficult as the outcome of the litigation may be for him to accept, however, that does not mean that justice has been denied to him, and that he may continue to litigate until he succeeds. Such conduct is, as has been held, an abuse of process, and oppressive to those with legal responsibility for the sale of the Marsfield Property and his brother, Peter.

16. [107]

    In a number of the judgments to which reference has been made above, various judges have characterised Philip’s applications as involving an abuse of process or as the proceedings being manifestly groundless or hopeless.

17. [108]

    In Zepinic at [17], Simpson AJA said for the Court:

18. [109]

    We are satisfied, independently of the views expressed in the five relevant prior proceedings, that they merit the characterisation of being vexatious proceedings within the meaning of s 6 of the VPA. In relation to the first of these proceedings (Proietti v Proietti [2023] NSWCA 76), the first aspect of the relief sought was plainly bound to fail as the relief sought was a stay pending determination of the application for special leave to appeal. That application had been determined adversely to Philip prior to the hearing in the Court of Appeal before the President and Adamson JA. This aspect of the proceedings was pursued “without reasonable grounds”. In relation to the balance of the relief sought, it was predicated on the same arguments that had been rejected in the earlier Court of Appeal proceedings in which the leading judgment had been given by Mitchelmore JA. Having reviewed the matter independently, we adopt the reasoning of Adamson JA, reproduced at [67]-[69] above. In short, regardless of Philip’s subjective intention, the proceedings were conducted in a way that, in light of the earlier unsuccessful appeal and failed special leave application, caused “unreasonable annoyance, delay or detriment” to the trustees for sale and Peter.

19. [110]

    The second relevant set of proceedings (Proietti v Proietti [2023] NSWCA 132) came before an identically configured Court of Appeal. There was a broad similarity between the arguments sought to be advanced and those which had previously been made. Such re-agitation of arguments already dealt with is a classic example of proceedings which attract the epithet “vexatious” and amount to an abuse of process: see Golding, referred to at [13] above.

20. [111]

    Our independent review of Proietti v Proietti [2023] NSWCA 199 which was heard by Leeming JA, reveals the pattern of repetition of previously made and rejected arguments advanced by Philip. This pattern also manifested itself in the arguments advanced before Payne JA (Proietti v Proietti [2023] NSWCA 284) and White JA (Proietti v Proietti [2023] NSWCA 251).

21. [112]

    The common characteristic of repeated arguments, sometimes sought to be expressed under different procedural labels or invoking different statutory provisions, retained their same essential thrust: namely that Philip had been denied procedural fairness before Kunc J and in subsequent applications. A review of Philip’s arguments in those cases disclosed a dogged refusal to “accept the umpire’s decision”. The repetition of arguments did not improve their force or cogency; rather, they were apt to impose a burden on the trustees for sale and Peter of a kind that was vexatious and oppressive so as to amount to an abuse of process.

22. [113]

    The frequent repetition of what were in substance the same arguments also has the tendency to bring the administration of justice into disrepute, another manifestation or consequence of proceedings that amount to an abuse of process. Avenues of appeal properly exist but the administration of justice has as one of its essential components the notion that there must be finality of litigation. The legal system would simply break down if parties could re-agitate the same arguments time and time again in the forlorn hope that they might secure a different outcome.

23. [114]

    Turning then to the third step of the analysis, we are also satisfied that the sets of proceedings to which we have made reference amount to “frequently instituted” proceedings within the meaning of s 8(1)(a) of the VPA, taking account of the authorities discussed above at [18]-[20]. The five proceedings we have found to be vexatious were commenced in the 7 month period from 5 April 2023 to 13 November 2023, following the High Court’s dismissal of the special leave application on 9 March 2023. Repeatedly seeking to re-agitate issues already decided in this way, and doing so with some rapidity, readily meets the relatively low threshold involved in the notion.

24. [115]

    Finally, as to the exercise of our discretion in s 8 of the VPA, we consider that a vexatious proceedings order is in all of the circumstances warranted. Philip has not accepted that further challenges to the orders made by Kunc J are futile and are themselves an abuse of process.

25. [116]

    Accepting fully the caution that should be exercised when making a vexatious proceedings order, without a vexatious proceedings order, Philip is likely to continue commencing vexatious proceedings. So much is apparent not only from his conduct to date but from the fact that his intention to continue disputing the result until he obtained an outcome satisfactory to him was made clear in his written and oral submissions to this Court.

26. [117]

    His regular commencement of proceedings is likely to impose an unwarranted burden upon Peter and the trustees for sale and the consequence of further proceedings will be further inconvenience, expense and a waste of the Court’s time and resources. It is not in the public interest for Philip to continue bringing repeated applications when the Court has already determined the matter. In this context, the abuse of process may also be measured in the diversion of scarce judicial resources in dealing with his multiple and repetitive applications away from the hearing and determination of other litigants’ cases and appeals.

27. [118]

    An order under the VPA is amply justified. However, it should be confined by reference to the various proceedings Philip has brought in this Court, and relating only to proceedings brought in this Court or the Supreme Court. It is only in respect of such issues that he has manifest the identified vexatious behaviour.

28. [119]

    An issue then arises as to whether some temporal limitation should be placed on the order: note Collier at [82]-[83]. In the amici’s written submissions it was said that it seems Philip “will continue to commence vexatious proceedings at least until the proceeds of sale are distributed”. In the course of oral submissions Philip was asked if he agreed with the statement, leaving aside the characterisation of the proceedings as vexatious. He denied it with some vehemence. That position, together with his conduct to date, means that the Court can have no confidence that there is any particular point where his attempts at repeated re-agitation of the issues will end. This is one of those cases, thus, where it is not appropriate to impose an end date on the order, especially given that the order will be limited to matters the subject of identified proceedings.

Conclusion

1. [120]

   For all of the above reasons, in our view the following order should be made pursuant to s 8(7) of the VPA: