Caldar and the Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales

[2005] NSWCA 166

CITATION:	Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales [2005] NSWCA 166
HEARING DATE(S):	11 May 2005
JUDGMENT DATE:	11 May 2005
JUDGMENT OF:	Handley JA at 1; Bryson JA at 16; Brownie AJA at 17
DECISION:	1. Summons of 4 January 2005 dismissed with costs.; 2. Notice of motion of 4 April 2005 dismissed with costs.

CATCHWORDS:	PRACTICE AND PROCEDURE - abuse of process of court - no question of principle
LEGISLATION CITED:	Supreme Court Act 1970 Supreme Court Rules 1970
PARTIES:	Russell Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes (Claimant) Public Trustee of New South Wales (Opponent)
FILE NUMBER(S):	CA 41204/04 and 40141/05
COUNSEL:	in person (Claimant) I Rugless (Opponent)
SOLICITORS:	not applicable (Claimant) Clinch Neville Long Lawyers (Opponent)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	CA 40141/05 and CL 13973/04
LOWER COURT JUDICIAL OFFICER:	Tobias JA and Hidden J

CA 41204/04
CA 40141/05

HANDLEY JA
BRYSON JA
BROWNIE AJA

11 MAY 2005

RUSSELL CALDAR and THE ESTATE OF THE LATE MRS RACHEL ISOBEL GITTOES v PUBLIC TRUSTEE OF NEW SOUTH WALES

Judgment

1 HANDLEY JA: The Court has before it a summons by Mr Russell Caldar dated 14 January 2005 seeking leave to appeal from an interlocutory order of Hidden J of 13 December 2004. Hidden J refused to stay execution of the writ of possession over the property at 36 Arthur Street, Dee Why.

2 The Court also has before it a notice of motion dated 4 April 2005 which seeks under s 46(4) of the Supreme Court Act 1970 to discharge or vary orders made by Tobias J as a single judge of this Court on 19 January 2005 and 14 March 2005 refusing to stay execution of the writ of possession.

3 On 17 March 2005 the writ of possession was executed and possession of the property was delivered to the Public Trustee. Thereafter, it appears on 11 April 2005, Mr Caldar re-entered the property.

4 On 22 April White J made orders under s 84(2) of the Supreme Court Act which restrained Mr Caldar from continuing any legal proceedings against the Public Trustee without the leave of the Court or making any application in any legal proceedings against the Public Trustee without the leave of the Court.

5 Quite apart from the orders of White J, the summons for leave to appeal and the notice of motion before this Court can serve no possible useful purpose, because they seek in one way or another a stay of execution of a writ of possession which was actually executed on 17 March. Thereafter the summons of 14 January 2005 became frivolous and the notice of motion of 3 April was frivolous from the outset.

6 Both proceedings are also vexatious and an abuse of the process of the Court.

7 The Public Trustee is the registered proprietor by transmission of the subject property and Mr Caldar has no registered or other title which gives him a legal right to possession of the property as against the Public Trustee. The Public Trustee obtained a writ of possession which was executed on 17 March and it obtained vacant possession from the Sheriff.

8 Mr Caldar since then if he is in possession of the property is a mere trespasser and it appears from a statement made from the bar table this morning that he is again out of possession.

9 The proceedings are stayed pursuant to the orders of White J but since they are frivolous, vexatious and an abuse of the process of the Court, it is necessary for the Court to consider whether they should be summarily dismissed pursuant to the powers in Supreme Court Rules Pt 13 r 5.

10 White J order permitted Mr Caldar to make an application for the leave of the Court to commence or continue any proceedings.

11 The Court is prepared to treat the written submissions filed by Mr Caldar in support of the summons for leave to appeal and his affidavit in support of his notice of motion as the written material on which he would rely in support of an application for leave to continue those proceedings. The Court will also treat that as the material on which Mr Caldar would rely in support of the summons and the notice of motion.

12 The written statement of 14 January in support of the summons for leave to appeal occupies twelve pages in the white book and the written material in support of the notice of motion comprises Mr Caldar’s affidavit of 4 April of twenty-five pages and his affidavit of 5 May of five pages. These provide a sufficient basis for the Court to understand the submissions Mr Caldar makes in support of leave to continue those proceedings pursuant to the orders of White J and the reasons he would advance in support of the summons for leave to appeal and the notice of motion if leave were to be granted.

13 There is nothing in the statement of case of 14 January which could possibly support the grant of leave to appeal from the decision of Hidden J and there is nothing in the affidavits of 4 April and 5 May which could possibly justify orders being made in favour of Mr Caldar on the notice of motion of 4 April.

14 In these circumstances the Court is not bound to allow oral argument, either in support of the application for leave to continue those proceedings or in support of those proceedings themselves.

15 The orders of the Court will be:

1. Summons of 4 January 2005 dismissed with costs.

2. Notice of motion of 4 April 2005 dismissed with costs.

16 BRYSON JA: The judgment given by Handley JA is the judgment of the Court.

17 BROWNIE AJA: I agree.

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