Alfaro v Nash and 14 Ors
[2001] NSWSC 652
•6 August 2001
CITATION: Alfaro & Anor v Nash & 14 Ors [2001] NSWSC 652 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20360/2001 HEARING DATE(S): 27 July 2001 JUDGMENT DATE:
6 August 2001PARTIES :
Pedro Alfaro
(First Plaintiff)Silvia Gladys Alfaro
(Second Defendant)Sally Susan Nash t/as Sally Nash & Co Lawyers
(First Defendant)John Paul Meehan t/as John Meehan Solicitors
(Second Defendant)Charles Joseph Monti and Placido Costa
t/as Smith Monti & Costa Solicitors
(Third & Fourth Defendants)George Lionel Cuddy
(Fifth Defendant)Tasos Castrosos
(Sixth Defendant)Mark Edgard Findlay
(Seventh Defendant)Lynne Hughes and Michael Taylor
t/as Hughes & Taylor Solicitors
(Eighth & Ninth Defendants)Santo Pante
(Tenth Defendant)Santa Pante
(Eleventh Defendant)Rob Bourke
(Twelfth Defendant)Rodney Cutler
(Thirteenth Defendant)Donald Bann
(Fourteenth Defendant)Department of Corrective Services
(Fifteenth Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr P Alfaro
(Plaintiff in person)Mr Johnson with Ms N Banfield (Sol)
(First Defendant)Mr A McGrath
(Second, Third & Fourth Defendants)Mr P Stern (Sol)
(Fifth, Sixth & Seventh Defendants)Mr M Taylor (Sol)
(Eighth, Ninth, Tenth & Eleventh Defendants)Mr G Bartley
(Twelfth & Fiftheenth Defendants)SOLICITORS: Sally Nash & Co Lawyers
(First Defendant)Mallesons Stephen Jaques
(Second, Third & Fourth Defendants)Ernst & Young Law
(Fifth, Sixth & Seventh Defendants)Hughes & Taylor
Eighth, Ninth, Tenth & Eleventh Defendant)Crown Solicitor
(Twelfth & Fifteenth Defendants)CATCHWORDS: Summary judgment - abuse of process - bankruptcy LEGISLATION CITED: Supreme Court Rules
Bankruptcy Act 1966
Legal Profession 1987 (NSW)
Security Industry Act 1997
Residential Tenancies Act 1987CASES CITED: Air Services Australia v Zarb (NSWSC unreported, 26 August 1998)
Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
Rippon v Chilcotin [2001] NSWCA 142
Rookes v Barnard [1964] AC 1129
Colgate Palmolive Pty Limited v Cussons (1993) 46 FCR 225DECISION: (1) The proceedings are dismissed; (2) The plaintiffs are to pay the defendants' costs on an indemnity basis. Costs are payable forthwith.
22
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
20360/2001 - PEDRO ALFARO & ANOR vMONDAY, 6 AUGUST 2001
SALLY SUSAN NASH t/as
SALLY NASH & CO LAWYERS
& 14 ORS
JUDGMENT (Summary judgment; abuse of process;
bankruptcy)
1 MASTER: By notices of motions filed 14 May 2001 (D1), 20 June 2001 (D2), 1 June 2001 and 19 June 2001 (D3/4), 21 May 2001 and 13 June 2001 (D5,6,7), 29 May 2001 (D8,9,10,11), 20 June 2001 (D12) and 7 June 2001 (D15) the first, second, third, fourth, fifth, sixth, seventh, eight, ninth, tenth, eleventh, twelfth and fifteenth defendants respectively, seek orders that the proceedings be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR) or alternatively, that the statement of claim be struck out pursuant to Part 15 r 26 of the SCR. The first defendant Sally Susan Nash t/as Sally Nash & Co Lawyers relied on the affidavit of Natasha Banfield sworn 11 May 2001. The second defendant John Paul Meehan t/as John Meehan Solicitors relied on the affidavit of Robyn Chalmers and the third and fourth defendants Charles Joseph Monti and Placido Costa t/as Smith Monti & Costa Solicitors relied on the affidavits of Robyn Chalmers sworn 19 June 2001 and 20 June 2001. The fifth, sixth and seventh defendants, George Lionel Caddy Official Receiver in Bankruptcy, Tasos Castrisos Deputy Official Receiver, and Mark Edgard Findlay Senior Assistant Official Receiver respectively, relied on the affidavit of Philip Maurice Stern sworn 18 May 2001. The eighth, ninth, tenth and eleventh defendants, Lynne Hughes t/as Hughes & Taylor Solicitors, Michael Taylor t/as Hughes & Taylor Solicitors, Santo Pante and Santa Pante respectively relied on the affidavit of Michael Kevin Taylor sworn 28 May 2001. The twelfth defendant Rob Bourke Sheriff’s Officer Bankstown, and the fifteenth defendant Department of Corrective Services relied on the affidavits of Gillian Frances Mahony affirmed 6 June 2001 and 20 June 2001. The first plaintiff is Pedro Alfaro and the second plaintiff is Silvia Gladys Alfaro and they relied on their affidavits sworn 4 June 2001 and 22 June 2001. The thirteenth and fourteenth defendants Rodney Cutler and Donald Bann are both police officers and do not have motions before the court. However, I have considered whether the statement of claim should remain on foot against them.
2 The first plaintiff was granted leave to act for his wife the second plaintiff. The second plaintiff speaks English but very limited English. I endeavoured to explain to the second plaintiff that her interests may not be the same as her husband’s and that she should seek independent legal advice and I repeat this comment here. The second plaintiff told the court that she wanted her husband to represent her.
3 The plaintiff has pleaded that on 27 October 1998 the first defendant who was at all material times the servant or agent acting for the second defendant, wrongfully and maliciously served a bankruptcy notice on the plaintiffs which had been issued by the fifth defendant (The Official Receiver in Bankruptcy), his servants or agents and combined amongst themselves to abuse the Bankruptcy Act 1966 with intention to defraud and wrongfully injure the plaintiffs and a 24 hour security alarm monitoring and response business, owned by the plaintiff who at all material times were trading under the name of Property Protectors of 282 Botany Road, Alexandria, New South Wales 2015 and subsequently of 158 Wangee Road, Greenacre, New South Wales 2190.
The law on summary judgment
4 Part 15 r 26 provides:
- “(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(c) is otherwise an abuse of the process of the Court,(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
- the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out.
- (2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”
5 Part 13 r 5 says:
“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious;
(c) the proceedings are an abuse of the process of the Court,or
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
6 In a Court of Appeal decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.
7 In General Steel Barwick CJ, who heard the application alone stated:
“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
8 Barwick CJ also said:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”
9 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602:
“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’
10 According to Rolfe AJA in Zarb:
- “The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”
11 I have carefully read all of the plaintiffs’ submissions and paid particular attention to paragraph 25 where he states that “The judgment made by Cole JA and Stein JA on 9 March 1998 was a judgment which was made knowingly that Master Malpass and Acting Justice Grahan (sic) had no jurisdiction in matters of fact and Law and that the matter relating to the Transfer number Z 722 488 L in respect of the property known as 5 Knotwood Ave Macquarie Fields NSW 2564 was a matter of fact and law outside the jurisdiction of Master Malpass and of Acting Justice Graham as he was not the trail (sic) judge”.
12 There is a long history of legal proceedings involving the plaintiffs and some of these parties. As further legal processes occur, and where the outcome is not to the plaintiff’s liking further defendants are named in proceedings. A summary appears below.
(1) Smith Monti & Costa acted for the plaintiff is legal proceedings in the District Court. They ceased to act for the plaintiff in 1990.
(2) On 1 August 1996, the plaintiffs began proceedings by statement of claim in the Supreme Court No 20806/96. The defendants were Smith Monti & Costs (the second and third defendants in these current proceedings). The plaintiffs complained that the firm of solicitors Monti & Costa had caused substantial losses to the plaintiffs’ legal interests in the property situated at 5 Knotwood Avenue, Macquarie Fields, New South Wales 2546 and they acted dishonestly and unprofessionally and caused the plaintiff loss of income together with much anxiety and distress and mental anguish as a direct result of the first and second defendants ceasing to act on Friday 3 August 1990.
(3) The statement of claim also alleges that the third defendant acted as a solicitor for the fourth and fifth defendants acting for a domestic violence order against the first plaintiff. It also alleges that the third to fifth defendants commenced the domestic violence proceedings to intimidate the plaintiffs into unfair negotiation of their interests. In relation to the domestic violence proceedings the plaintiffs were put on a good behaviour bond.
(4) On 4 March 1997, that statement of claim was amended, pursuant to leave which had been granted on 26 February 1997.
(5) On 13 March 1997, the plaintiffs filed a further amended statement of claim pursuant to leave which had been granted on that day. All five of the defendants to the proceedings then sought the striking out of the 13 March 1997 statement of claim.
(6) On 7 May 1997, Master Greenwood acceded to that application, at the same time granting leave to the plaintiffs to file a further amended statement of claim before 13 June 1997. He also ordered the plaintiffs to pay the defendants’ costs of the strike out application, adding “These costs may be enforced now”.
(7) On 10 June 1997, the plaintiffs filed a further amended statement of claim, pursuant to leave which had been granted to them by Master Greenwood. That further amended statement of claim provoked a further strike out application by the defendants.
(8) On 24 July 1997, Master Malpass acceded to that application. When doing so, Master Malpass stated that the plaintiffs had made no application for leave to file and serve yet a further amended statement of claim and said as well that he was not satisfied that such leave should be granted. As to the costs of the defendants’ application, he ordered the plaintiffs to pay them saying “All defendants may proceed forthwith to a taxation of the costs”.
(9) The plaintiffs appealed the decision of Master Malpass.
(10) On 1 September 1997, Graham AJ dismissed the plaintiffs’ appeal from that decision. Graham AJ ordered that the plaintiffs were not to be permitted to file any further documents in these proceedings without leave of a judge being previously obtained (para 43).
(11) The plaintiffs purported to appeal without leave of the Court of Appeal from the decision of Graham AJ.
(12) On 9 March 1998, the Court of Appeal (Cole and Stein JJA) on the respondents’ application, struck out the plaintiffs purported appeal with costs, because the necessary leave to appeal had not been obtained beforehand. On that day, the Court of Appeal also dealt with an application for leave to appeal filed by the plaintiff, refusing such leave with costs. The Court of Appeal also made an order that the plaintiff “not be permitted to file any further documents in these proceedings without leave of a judge being previously obtained” .
(13) A certificate by a costs assessor was issued under s 208J of the Legal Profession Act 1987 (NSW) dated 18 September 1997 in favour of John Meehan. It certified that the costs assessor had assessed costs of John Meehan in the Supreme Court proceedings at $3,303.
(14) A certificate of judgment issued by the Local court, certifying a judgment in favour of the creditor against the plaintiffs for $3,331 which judgment is said to be the judgment upon which the creditor’s bankruptcy notice was expressed to be forwarded.
(15) On 16 February 1999, a registrar determined a creditor’s petition which had been presented by Mr John Meehan (the creditor) against Mr Pedro Alfaro and Mrs Silvia Gladys Alfaro (the debtors) under the Bankruptcy Act 1966 (Cth) (the Act). The registrar did so by making sequestration orders against the debtors’ estates.
(16) The plaintiffs appealed against the registrar’s decision. On 25 June 1999 Katz J dismissed the appeal.
(17) The Official Trustee applied for a summons for the first plaintiff to be examined by the court as to his assets and liabilities. The return date was fixed for 8 June 1999. The bankruptcy notice was served on the defendant. He failed to appear and the matter was adjourned to 29 June 1999. The first plaintiff did not appear. An affidavit of service was filed. On 19 June 1999 registrar Tesorioro issued a warrant of apprehension for the first plaintiff pursuant to s 264B of the Bankruptcy Act 1966.
(18) On 29 October 1999 the thirteenth and fourteenth defendants arrested the first plaintiff and he was taken to Liverpool Police station. Around 22.25 pm the first plaintiff was shown a warrant for apprehension issued by the registrar.
(19) On 21 November 1999 the first plaintiff was taken to the Federal Court and examined as to his security business.
Allegations against the first to fourth defendantsThe statement of claim
13 The claims made against the first defendant are firstly, that as a servant or agent for the second defendant wrongful and malicious service of a bankruptcy notice; secondly, abuse of the Bankruptcy Act 1966; thirdly, a combined (inferentially a conspiracy) intention to defraud and wrongfully injure the plaintiffs, that combination being between the first, second and fifth defendants (and inferentially the sixth defendant and the seventh defendant); fourthly, a malicious presentation of a creditors petition, inferentially on behalf of the second defendant although not alleged to be as servant or agent for the second defendant; fifthly, a bar of the presentation of a creditor petition with an intention to defraud the plaintiffs; sixthly, the obtaining of sequestration orders in circumstances where the first defendant continued recklessly and negligently with the bankruptcy proceedings without concern to the plaintiffs although it does not appear that the reckless and recklessness and negligence is associated with the actual obtaining of the sequestration orders but rather with the continuation of the bankruptcy proceedings; seventhly, an allegation that the first defendant alleged that the Legal Profession Act dealt with the procedure for assessment of party/party and solicitor/client costs and that procedure had been followed, based in respect of the first defendant and the third and fourth defendants; eighthly, a claim for damages caused by the abuse of the Bankruptcy Act 1966 by the first defendant; ninthly an allegation particularised as negligence that the first defendant caused the revocation of the plaintiffs’ security master licence issued under the Security Industry Act 1997; and tenthly an allegation of conspiracy with the eighth and ninth defendants because of the eviction of the plaintiffs from certain premises.
14 The allegations against the second to fifth defendants are contained in paragraph 18 of the statement of claim under the heading ‘PARTICULARS OF SUPREME COURT PROCEEDINGS No 20806 of 1996 AGAINST THE 2nd DEFENDANT” which purports to contain a summary of allegation made by the plaintiffs against John Meehan as second defendant in the previous proceedings. Paragraph 1 refers to the first defendant acting as servant or agent for the second defendant. Otherwise no specific allegations have been made against the second defendant with respect to the previous proceedings. As against the third and fourth defendant paragraphs 18 and 19 assert that the defendants collectively caused the plaintiffs to suffer damage. Paragraph 14 alleges that the second defendant was part of a malicious conspiracy with the first and fifth defendants with respect to the eviction orders made against the plaintiff and abuse of the Bankruptcy Act.
15 A recent relevant Court of Appeal decision, Rippon v Chilcotin [2001] NSWCA 142 (13 July 2001) concerned issues of abuse of process and res judicata. In Rippon the respondents contracted to purchase a business under contracts which contained warranties of the reliability and accuracy of certain financial statements. The purchasers became dissatisfied with their purchase and brought proceedings in the Supreme Court against the vendor. In 1996 Brownie J awarded the purchasers damages for breach of warranty as to the nett profit of the business for 1991 but dismissed their claims for misleading and deceptive conduct. The Judge found that the purchasers had relied on the warranty, not the representations.
16 In 1997 the purchasers commenced proceedings in the District Court against the vendor’s accountants who prepared the financial statements claiming damages for negligent misrepresentations in respect of the years 1988-1991 upon which they had relied in entering into the contracts. The accountants sought to have this action stayed or dismissed for abuse of process, claiming the purchasers were seeking to re-litigate in the District Court the issue of reliance which they had lost in the Supreme Court. Their motions for stay or summary dismissal were dismissed.
17 The New South Wales Court of Appeal allowed the appeal on the basis that the proceedings against the accountants were an abuse of process because the purchasers were attempting to re-litigate the issue of reliance on the representations which they had lost in the earlier proceedings; the claims against the accountants were so relevant to the subject matter of the first action that it was unreasonable for the purchasers not to rely upon them in that action. The fact that the present claim could have been included in the first proceedings emphasised the close connection between the two proceedings and was relevant in considering whether the present action was an abuse of process; and the addition of misrepresentations about years other than that upon which the earlier proceedings were based was mere camouflage, a distinction without a difference, because the purchasers could not be bothered suing the vendor for those years and were now barred from doing so by an Anshun estoppel.
18 Handley JA (with whom Mason P and Heydon JA agreed) referred to passages from three authorities. They are:
- “In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 Hunt CJ at CL distilled the following statement of principle from the authorities:
- ‘There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath … The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that … the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance … In normal circumstances the decision disposing of the issue must have been a final one … There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice … all the circumstances of the determination in the earlier case may be considered …’.
In State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423, another case involving abuse of process in seeking to re-litigate an issue, Giles CJCommD said at 64,089:
- ‘The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process’.(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
- These considerations, as Heydon JA pointed out in R v O’Halloran (2000) 36 ACSR 315, 344, ‘turn on precise identification of the issues’.”
19 It is my view that the plaintiff is seeking to relitigate the proceedings against the first to fourth defendants which he has already lost in this and other courts. As such they are an abuse of process. In my view the claims are also hopeless and should be dismissed.
Allegations against fifth to seventh defendants
20 It is not disputed that the first plaintiff had not filed a statement of affairs pursuant to s 54. To date a statement of affairs has not been filed by either plaintiff
21 The allegations against the sixth defendant are contained in paragraph 5 and six of the statement of claim. Paragraph 5 alleges that the issuance of a summons to attend a public examination issued by the Federal Court under s 81 Bankruptcy Act 1966 was ultra vires to the Act on the basis that the sixth defendant, who swore an affidavit on 27 April 1999 in support of an application for the issuance of a summons under s 81 (see annexure C aff Philip Maurice Stern 18 May 2001 at p 7) on behalf of the fifth defendant, had no authority or right to request the issuance of the examinations summons.
22 At paragraph 6 the plaintiffs allege that the fifth defendant, through the seventh defendant “intimidated” the first plaintiff with the issue of a warrant with the alleged “intention to force the plaintiffs into signing statements of affairs for the fifth defendant to take control of the plaintiffs’ affairs”. The warrant was issued by a registrar of the Federal Court, not by the fifth defendant through the seventh defendant. The effect of the warrant under s 264B Bankruptcy Act is that a person is to be held in custody until released by order of the court/registrar (s 264B(3)). There could be no “intimidation” by the fifth or seventh defendants for a warrant which was issued by a third party, being a registrar of the Federal Court. Further the tort of intimidation requires intimidation of a plaintiff by threats of an illegal act so that the plaintiff is induced to act to his own loss as intended by the defendant - see Rookes v Barnard [1964] AC 1129 per Lord Devlin. The warrant was issued in compliance with provisions of the Bankruptcy Act. The warrant was issued for non-compliance with an examination summons to attend the Federal Court, not for a failure to file a statement of affairs by the first plaintiff as alleged by him. The plaintiff did not act upon the alleged intimidation as he did not do what was purportedly intended. The plaintiff has still not completed a statement of affairs as claimed in paragraph 6 of the statement of claim.
23 The first plaintiff seeks to rely on his own non-compliance with court orders to sustain his cause of action. This is an abuse of process. Further it is my view that no cause of action is disclosed against the fifth, sixth and seventh defendants. It is my view that pleadings are an abuse of process, vexatious, cause prejudice, embarrassment, delay and expense to the fifth, sixth and seventh defendants. They should be dismissed.
Eighth to fifteenth defendants
24 The proceedings against the eighth to eleventh defendants and the fourteenth and fifteenth defendants fall into a different category. The uncontested history is that Mr Hughes (8th defendant) and Mr Taylor (9th defendant) are solicitors and conduct and practice known as Hughes & Taylor.
(1) Hughes & Taylor solicitors previously acted on behalf of the tenth and eleventh defendants Santo and Santa Pante. Hughes & Taylor was instructed to act on behalf of Mr and Mrs Pante in about May 1999 in respect of the plaintiff’s occupation of part of the property owned by Mr and Mrs Pante situated at and known as Suite 2, 158 Wangee Street, Greenacre (the subject property). Mr and Mrs Pante were the landlords. The plaintiffs were the tenants.
(3) On 13 July 1999 the first plaintiff by facsimile transmitted a letter to Mr Michael Taylor of Hughes & Taylor Solicitors. It read as follows:(2) On or about 6 July 1999 Mr Pante commenced proceedings in the Residential Tenancies Tribunal by way of an application for termination and possession orders based on rent arrears.
- “RE: SANTO AND SANTA PANTE NOTICE TO QUIT DATED 12TH July 1999 AND RESIDENTIAL TRIBUNAL NOTICE DATED 9TH July 1999.
- We would like to clarify that the Verbal Agreement for the rental of the premises Suite 2, 158 Wangee Road, GREENACRE NSW 2190 is Not one of Residence. The Residential Tenancies Tribunal has No control or powers over the rental agreement of the premises at Suit 2, 158 Wangee Road GREENACRE NSW 2190.
- Further there is No Residential Agreement Signed by us in relation to the premises and you know that. We advise that the Matter would be taken to the Supreme Court and We will sue for the following Further Damages:
- 1. Having the ceiling open and exposing us to Fiber (sic) Glass and dangerously making us to bred (sic) the fiber (sic) glass. Photographic Evidence taken 8/2/99 and Doctors certificates.
2. Dangerous Electrical Hazards. Photographic and Electrician Evidence.
3. Threaten my life and my Family with Violence on Sunday 11/7/1999.
- Further be advised that the Cost for attending the Residential Tribunal to request transfer to the Supreme Court and attendance to the Supreme Court would be in the sum of $1800 Per Day losses of sales in the Alarm Security Industry.
- Further as you know We would be producing Evidence that the premises Not Residential but 24 hour Alarm Monitoring Control Room of which you know and there is No law against us being there 24 hours a day.”
(5) On 19 July 1999 the Tribunal Member made the following orders:
(4) On 19 July 1999 Mr Taylor attended the Residential Tenancies Tribunal together with Mrs and Mrs Pante. At that time there was no appearance by or on behalf of Mr and/or Mrs Alfaro. It certainly appears that the first plaintiff knew of the hearing date and chose not to attend. The matter proceeded in the absence of Mr and Mrs Alfaro before the Tribunal Member Mrs T Cohen.
(b) Possession is to be given up to the landlord on 26 July 1999.(a) The agreement is terminated.
- (c) The tenants Mr Pedro Alfaro and Mrs Silvia Alfaro are to pay the landlord Mr Santo Pante of 120 Ferguson Avenue, Maroubra New South Wales the sum of $3,200 immediately.
- (d) The tenant is to pay the landlord daily occupation fee at the rate of $28.57 per day from 20 July 1999 to the date possession is given
- (e) The landlord is to make arrangements to have a letter to be delivered to the tenant advising of these orders before 6pm this night.
(6) On 26 July 1999 possession was not delivered up to the landlord.
(7) On 29 July 1999 the ninth defendant wrote to the Residential Tenancy Tribunal requesting the issue of a warrant for enforcement of orders for possession pursuant to s 73 of the Residential Tenancies Act 1987.
(9) On 4 August 1999 the tenth and twelfth defendants Sheriff Officers transported the first plaintiff to Bankstown Police station. It was alleged that the first plaintiff had assaulted the twelfth defendant.(8) On 29 July 1999 the registrar of the Residential Tenancy Tribunal issued the warrant.
25 The allegations made against the eighth to eleventh defendants is that the tenth defendant attended the Wangee Road premises on 4 August 1999 and that the male plaintiff suffered false imprisonment and was subjected to public humiliation, embarrassment and distress on 4 August 1999. The imprisonment was occasioned by the issue of a warrant empowering the tenth defendant to do so.
26 The plaintiffs are in effect seeking to canvass issues against the eighth to fifteenth defendants which have already been determined in the Residential Tribunal and have been lost. No review, appeal or the like process has been undertaken by the plaintiffs. This pleading is an abuse of process. The Sheriff’s Officers and police were executing legal process validly issued. There is nothing to suggest that these defendants did anything unlawful while discharging their judicial function. The allegations that the plaintiffs make against other defendants also fail to disclose any reasonable cause of action. The plaintiffs’ claims are vexatious and an abuse of process of the court. In the exercise of my discretion there is no utility in granting the plaintiffs an opportunity to replead the statement of claim. The claims are doomed to failure. The statement of claim should be dismissed against them.
27 In summary the plaintiffs’ claims are hopeless, embarrassing, vexatious and an abuse of process in relation to all defendants. For these reasons the proceedings should be dismissed. It should also be noted that the first plaintiff has been declared bankrupt. The first plaintiff does not feel obliged to comply with orders of the court. Instead decides to take legal proceedings against those who he perceives have acted against his interests.
28 Costs should follow the event. The plaintiffs are to pay the defendants’ costs. The defendants have sought costs on an indemnity basis. In Colgate Palmolive Pty Limited v Cussons (1993) 46 FCR 225 Sheppard J reviewed the relevant common law principles and said:
“In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course.”
29 This is such a case that warrants a departure from the normal course. The plaintiffs are to pay the defendants’ costs on an indemnity basis.
30 The court orders that:
(2) The plaintiffs are to pay the defendants’ costs on an indemnity basis. Costs are payable forthwith.
(1) The proceedings are dismissed.
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