Van Gorp v Davy

LEEMING JA: I will ask Kirk JA to deliver the first judgment.

KIRK JA: This application for leave to appeal represents an attempt by the applicant, Mr Sean Cornelius Van Gorp, to reagitate a legal issue which has previously been finally determined on sound legal grounds. Leave to appeal should be refused.

The context is as follows. The applicant’s former wife died on 17 July 2019. They had two daughters together, the elder born in May 2002 and the younger in August 2004. The deceased left a will dated 13 November 2018. Probate was granted to the two respondents in January 2021 as the executors named in the will. The two daughters were the only two beneficiaries named in the will. At no material time has the applicant had any personal interest in the estate of the deceased. He has not asserted that he did. In the hearing below, before Lindsay J, he again disclaimed any intention to make a family provision claim on his own account. He claims his interest in the estate relates to seeking to benefit his daughters.

In 2020 the applicant commenced proceedings in the Supreme Court relating to the will and estate of his former wife. In time the applicant consented to be replaced as the tutor of his younger daughter, and was removed as a party from the case. The proceedings were ultimately resolved by consent orders made in chambers by Hallen J on 2 June 2021. His Honour subsequently addressed a costs dispute involving the current parties arising from the proceedings: Van Gorp v Davy [2021] NSWSC 1509. That judgment sets out the procedural history of that matter at length at [3]-[49].

The applicant belatedly sought to challenge the 2 June 2021 consent orders by motion filed in November 2021, alleging that they had been obtained by fraud. The respondents to that motion were the respondents in this proceeding, as the two executors. The context of these events was summarised by Meagher JA and Basten AJA in this Court in Van Gorp v Davy [2022] NSWCA 117:

The applicant’s motion to set aside the consent orders was dismissed by Ward CJ in Eq: Van Gorp v Davy [2022] NSWSC 39. This Court’s earlier decision was an appeal from that decision by her Honour. This Court dismissed the application for leave to appeal, saying:

The applicant sought special leave to appeal to the High Court from the decision of this Court, which was refused.

After the decision of Ward CJ in Eq and prior to the decision of this Court, Peden J made the following order in April 2022 on the application of the respondents:

In making that order, her Honour said that “it is appropriate to make an order restraining Mr Van Gorp from bringing repetitive claims against the estate and executors”: Davy v Van Gorp [2022] NSWSC 466 at [16]. Her Honour noted the following at [19]:

The order of Peden J has not been challenged.

Just over a month after this Court refused leave to appeal from the decision of Ward CJ in Eq, the applicant filed proceedings in the Supreme Court seeking leave (in light of the order made by Peden J) to file a statement of claim against the respondents. That application was refused by Lindsay J in the matter which is the subject of this application for leave to appeal: Van Gorp v Davy [2022] NSWSC 1167.

His Honour noted at [18] that the applicant conceded that he had not satisfied any of the cost orders against him made in the Supreme Court and Court of Appeal. He dismissed the application on the basis, again, of the applicant’s lack of standing to make the claims that he did: at [20]-[22]. His Honour also said the following at [26]:

The statement of claim that the applicant sought to file set out essentially the same allegations that had been rejected by Ward CJ in Eq, from which decision this Court refused leave to appeal on the basis that her Honour’s conclusions were undoubtedly correct. The claim also alleges that the decisions of her Honour and this Court were in error. For example, it said at [6] that some identified reasoning in this Court’s decision “ignored my contention that the tutor’s appointment was obtained by fraud”. And at [17] it said that “[a]pplication of correct judicial method would have produced results of the tutor’s appointment and the consent orders of Hallen J being set aside by Ward CJ in Eq and leave to appeal granted by the Court of Appeal”.

In substance the applicant’s statement of claim sought to reagitate issues already determined and sought in effect to seek the review of a decision of this Court in proceedings in the Supreme Court.

There are six grounds of appeal in the applicant’s draft notice of appeal. The first three re-raise arguments about standing. There is no basis for doubting the correctness of the conclusion of the primary judge – reflecting the earlier decisions of Ward CJ in Eq and of this Court – that the applicant lacks standing to bring proceedings concerning a deceased estate in which he has no interest. It is noteworthy that the applicant accepted that his younger daughter did not wish to pursue a challenge to the consent orders. The fourth and fifth grounds sought to raise issues about the Supreme Court’s parens patriae jurisdiction. That jurisdiction was not in issue before Lindsay J, not least because both of the applicant’s daughters had reached the age of 18 when his Honour determined the matter, and in circumstances where a tutor had previously acted on behalf of the younger daughter in the proceedings before Hallen J. Some criticism was made by the applicant of a failure of the Supreme Court to deal with the applications expeditiously. In fact the summons seeking leave to file the statement of claim was filed on 23 August 2022, expedition was sought by email on the same day, and the application was determined expeditiously by Lindsay J on 30 August 2022 after a hearing that day. The sixth ground alleged that his Honour erred in characterising the proceedings as an abuse of process.

This Court has regularly stated that ordinarily to attract a grant of leave to appeal an applicant needs to establish that there is an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something that is merely arguable. None of the proposed grounds of appeal raise an issue of principle nor an issue of general public importance. There is certainly no reasonably clear injustice, nor any other matter warranting the granting of leave to appeal, in light of the history of judicial determinations in this matter. On the contrary, this application represents an improper attempt by the applicant to re-run issues which have been determined previously.

Justice Lindsay was correct to characterise the applicant’s attempt to file the statement of claim as an abuse of process. Making a claim or raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process: see eg Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26]. That is what the applicant sought to do here, in proceedings involving the same parties as those involved in the previous dispute, and where essentially the same issues are sought to be agitated on essentially the same grounds. The applicant in effect is seeking to circumvent proper appellate processes by instituting successive proceedings in the Supreme Court. The proper avenue for challenging the Court of Appeal’s dismissal of the applicant’s leave to appeal application was to seek leave to appeal to the High Court. That was done and special leave was refused. Bringing fresh proceedings before the Supreme Court ventilating the same issue was plainly inappropriate. For the applicant to seek to proceed as he has done was both unjustifiably oppressive to the respondents and serves to bring the administration of justice into disrepute. It was thus an abuse of process: see, as to general principle, eg UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [2] and [72].

The application for leave to appeal should be dismissed with costs.

LEEMING JA: I agree with the orders proposed by Kirk JA, and with his Honour's reasons. I would add only one thing. During the course of oral address, Mr Van Gorp articulated at some length his concern that equity as opposed to common law would attend to the real justice of the case. Mr Van Gorp relied upon what the High Court had said in Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2.

Separately from the difficulties Kirk JA has referred to concerning compliance with the order made by Peden J, and the underlying abuse of process in Mr Van Gorp's repeated applications to this Court and the Equity Division, there is nothing in his submission that reliance upon equity's jurisdiction to intervene in the real justice of the case. That is because, as was pointed out during argument, he lacks standing, and equity will not intervene on behalf of someone who lacks standing to do so.