Abriel v Bennett

[2003] NSWCA 323

CITATION:	Abriel & Ors v Bennett [2003] NSWCA 323
HEARING DATE(S):	17/09/03
JUDGMENT DATE:	10 November 2003
JUDGMENT OF:	Meagher JA at 1; Davies AJA at 21
DECISION:	Application dismissed with costs.
CATCHWORDS:	LITIGANT IN PERSON: Dismissal of proceedings - CSR Pt 13 r 5 - appeal therefrom - Abuse of process.
PARTIES :	Rudolf Abriel & Ors v Annabelle Bennett
FILE NUMBER(S):	CA 40464 of 2003
COUNSEL:	A: In-Person R: S Rares SC, S Burley
SOLICITORS:	A: N/A R: Speed & Stracey

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20634/01
LOWER COURT JUDICIAL OFFICER :	Adams J

CA 40464 of 2003

MEAGHER JA
DAVIES AJA

Monday, 10 November 2003

RUDOLF ABRIEL & Ors v ANNABELLE BENNETT

Judgment

1 MEAGHER JA: Mr Rudolf Abriel seeks leave to appeal against an order of Adams J striking out a Statement of Claim by him against Annabelle Bennett, who at that time was a leading Senior Counsel and is now a judge of the Federal Court.

2 By “Mr Rudolf Abriel” in these reasons for judgment, I mean Mr Abriel, Mrs Abriel and Premier Knits Pty Limited. The legal issues involved in this appeal are the same for all three appellants.

3 The application was conducted by Mr Abriel in person.

4 In 1993, Mr Abriel sued Australian Guarantee Corporation and Westpac for damages for what in effect was alleged corporate fraud. It was settled by a Deed of Release on 5 April 1994. There is no need to delve into anything that happened before that date. However, what happened thereafter is of crucial importance.

5 No sooner was the ink dry on the 1994 Deed that Mr Abriel took it into his head to endeavour to set it aside. In fresh litigation he alleged that the Deed had been procured by undue influence, and also as a result of unconscionable behaviour. He prayed in aid the Trade Practices Act. This litigation was referred to mediation, apparently by Tamberlin J. It was settled by a second Deed of Release on 28 April 1998, on terms which involved AGC & Westpac paying Mr Abriel the sum of $90,0000. Up until the date when this Deed was executed, Mr Abriel was represented by Mrs Bennett.

6 Within a few months of the execution of the 1998 Deed Mr Abriel commenced, in the Federal Court, a third round of litigation to set that second Deed aside. In this round of litigation, the Abriels and their company were the applicants, and the defendants in the previous two rounds of litigation were the respondents. Oddly enough, Mrs Bennett was not a party. I say “oddly enough” because, in addition to matters raised in the previous litigation, it was now alleged that some impropriety by her was a factor in procuring the execution by Mr Abriel of the second Deed.

7 This third round of litigation ended in failure. Dowsett J, on 29 August 2000 dismissed the Abriel’s action, and an appeal…