Proietti v Proietti (No 5)

1. [1]

   PAYNE JA: This is yet another application made by Mr Philip Proietti arising out of completed proceedings involving a property he and his brother inherited as tenants in common following the death of their mother. The proceedings before the Supreme Court and this Court were concluded in 2022, and an application for special leave to the High Court of Australia was refused in March 2023. This judgment concerns a notice of motion filed by the applicant on 13 November 2023. For the reasons below, the notice of motion should be dismissed as vexatious and an abuse of process.

Background to the proceedings

1. [2]

   Mr Philip Proietti (who I will henceforth refer to as “Mr Proietti”) previously lived in a property he inherited (as a tenant in common with his brother) from his mother. In January 2022, his brother, Mr Peter Proietti, applied for trustees to be appointed to sell the property. On 7 July 2022, Kunc J made orders for trustees to be appointed to sell the property.

2. [3]

   On 17 November 2022, the Court of Appeal (Mitchelmore JA, Basten and Griffiths AJJA agreeing) dismissed Mr Proietti’s appeal from Kunc J’s orders: Proietti v Proietti [2022] NSWCA 234. On 1 December 2022, the Court of Appeal, constituted by Macfarlan JA, dismissed an application for a stay pending the outcome of a special leave application to the High Court: Proietti v Proietti [2022] NSWCA 268. On 9 March 2023, the High Court dismissed the application by Mr Proietti for special leave to appeal: Proietti v Proietti [2023] HCASL 15. I note that Mr Proietti apparently seeks an order from this Court that the decision of the High Court be set aside as “they too are bound by the Civil Procedures Act”. This submission is misconceived. This Court has no jurisdiction to set aside an order made by the High Court.

3. [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 sought a stay of execution of that writ, along with orders setting aside the orders made by the Court of Appeal on 17 November 2022 and 1 December 2022. On 21 April 2023, the Court of Appeal, constituted by Ward P and Adamson JA, dismissed Mr Proietti’s application: Proietti v Proietti [2023] NSWCA 76. The trustees for sale sought an indemnity costs order and a Teoh order requiring Mr Proietti to obtain leave before filing further applications or court processes about the sale of the property. Their Honours declined at that time the make the Teoh order sought by the trustees: see [1] (Ward P), [27] (Adamson JA).

4. [5]

   Three days later, on 24 April 2023, Mr Proietti filed a further notice of motion seeking, again, to set aside the orders appointing the trustees for sale of the property. The Registrar of this Court gave directions for Mr Proietti to show cause why the Court should not make a Teoh order preventing him from making any further applications without leave. On 14 June 2023, the Court, again constituted by Ward P and Adamson JA, determined that a Teoh order was now warranted: Proietti v Proietti [2023] NSWCA 132. Their Honours made the following orders:

5. [6]

   On 24 July 2023, Mr Proietti filed a notice of motion and accompanying affidavit seeking a stay of the orders made by Kunc J on 7 July 2022 and the setting aside of the orders made by the Court of Appeal on 17 November 2022 and 14 June 2023. In accordance with the Teoh order, the Registrar of this Court vacated the return date of the motion.

6. [7]

   The matter was referred to Leeming JA to determine on the papers. His Honour invited Mr Proietti to show cause in writing why the motion should not be summarily dismissed as vexatious and an abuse of process, in response to which Mr Proietti provided extensive submissions and evidence. On 29 August 2023, his Honour dismissed the notice of motion as vexatious and an abuse of process: Proietti v Proietti (No 3) [2023] NSWCA 199.

7. [8]

   On 28 September 2023, Mr Proietti filed another notice of motion seeking “[a]n interlocutory injunction of the disposal of the property” and for “[a]ny Teoh procedure that is to be followed, be done urgently”. In accordance with order 2, the matter was referred to White JA, who also invited Mr Proietti to show cause why the motion should not be summarily dismissed. On 20 October 2023, his Honour dismissed the notice of motion as an abuse of process: Proietti v Proietti (No 4) [2023] NSWCA 251. His Honour found that Mr Proietti’s submission that no court or judge had addressed issues he raised in regard to a denial of a fair procedure at trial was “manifestly groundless” at [15] and held that “[n]o new issue is raised in Mr Philip Proietti’s notice of motion” at [16].

8. [9]

   On 13 November 2023, Mr Proietti filed a notice of motion (with an accompanying affidavit affirmed on the same date) seeking the following orders:

9. [10]

   This application plainly falls within the scope of the Teoh order made on 14 June 2023. On 16 November 2023, the Registrar vacated the return date of the motion and advised the parties that it would be addressed in accordance with that order. The matter was allocated by the President to me.

10. [11]

    On 17 November 2023, I caused my associate to write to Mr Proietti as follows:

Consideration

1. [12]

   On 24 November 2023, Mr Proietti filed eight pages of further submissions and annexed to them a copy of his application for special leave, which was refused in March 2023, and a copy of the reasons of Macfarlan JA in Proietti v Proietti [2022] NSWCA 268. I have taken into account all of the material filed with the notice of motion and filed on 24 November 2023. That material and Mr Proietti’s submissions do not raise any new issue. Mr Proietti submitted, as he had earlier done to Leeming JA and then White JA, that the Teoh order made by Ward P and Adamson JA should not have been made. As White JA correctly pointed out in Proietti (No 4) at [15], Mr Proietti has not applied for special leave from the orders made by Ward P and Adamson JA.

2. [13]

   Mr Proietti’s latest attempt to challenge the order made by Kunc J on 7 July 2022 is plainly vexatious and an abuse of process as is the attempt to set aside the orders of the Court of Appeal made on 17 November 2022. Mr Proietti has applied, repeatedly, and in essentially the same terms, to set aside the orders made by Kunc J and the Court of Appeal. The substance of Mr Proietti’s application relating to these orders was dealt with comprehensively by Ward P and Adamson JA in their Honours’ 21 April 2023 judgment. Mr Proietti could have sought special leave to appeal from that decision. He chose not to do so. In the submissions contained within his affidavit, Mr Proietti apparently understands that the issues he is now raising have already been determined adversely to him:

3. [14]

   Mr Proietti’s submission that no court or judge had addressed issues he raised in regard to a denial of a fair procedure at trial is without merit. No new issue is raised in Mr Proietti’s notice of motion, in his affidavit or in his submissions. Mr Proietti’s notice of motion filed 13 November 2023 is an abuse of process. It must be dismissed.

4. [15]

   Further, given the repeated attempts by Mr Proietti to agitate in this Court essentially the same issues that have already been finally determined against him, the time may have come to consider whether the Court should, of its own motion, consider whether Mr Proietti’s claims, either generally, or about any of the matters already determined by the Supreme Court or the Court of Appeal, be the subject of an order under the Vexatious Proceedings Act 2008 (NSW). As Mr Proietti has not been heard about this course of action, I will invite him to make any submissions he wishes about whether the Court should, of its own motion, appoint a hearing to consider whether Mr Proietti’s claims either generally or which have been the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with under the provisions of the Vexatious Proceedings Act.

5. [16]

   The orders of the Court are as follows:

   1. (1)

      The applicant’s notice of motion filed 13 November 2023 is dismissed.

   2. (2)

      Mr Proietti may file by email to the associate of Payne JA, by 4pm on 4 December 2023, submissions of no more than three pages as to whether the Court should, of its own motion, fix a hearing to consider whether Mr Proietti’s claims generally, or about any of the matters the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with by an order made under the Vexatious Proceedings Act 2008 (NSW).