De Varda v Austin - [2018] NSWCA 263

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: De Varda v Austin [2018] NSWCA 263
Hearing dates: 22 October 2018
Decision date: 12 November 2018
Before: Beazley P
Decision:
(1) Declare that the summons seeking leave to appeal filed 7 September 2018, insofar as it seeks leave to appeal from the order dismissing the 2018 proceedings, stands dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW), s 13(3);

(2)   The applicants’ notice of motion of 9 October 2018 be dismissed;

(3)   The applicants to pay the first respondent’s costs of the notice of motion of 9 October 2018;

(4)   There be no order as to the costs of the second, third and fourth respondents on the applicants’ notice of motion of 9 October 2018;
(5)   The applicants to pay the second, third and fourth respondents’ costs of the notice of motion filed 2 October 2018.
Catchwords:
CIVIL PROCEDURE – Parties – Vexatious litigants – Stay of proceedings – leave to appeal from Vexatious Proceedings Order – Declaration that balance of proceedings be dismissed pursuant to Vexatious Proceedings Act 2008 (NSW), s 13

CIVIL PROCEDURE – referral for pro bono assistance – whether to make an order under UCPR, r 7.36 referring applicants to the registrar for referral for pro bono assistance
COSTS – Party/Party – Court’s discretion
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 7, 51
Vexatious Proceedings Act 2008 (NSW), ss 3, 12, 13, 14
Cases Cited: Mahmoud v Attorney General of New South Wales [2017] NSWCA 12
Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
Category: Principal judgment
Parties: Joseph de Varda (Applicant)
Samuel Tov-Lev (Second Applicant)
David Austin (First Respondent)
Eddy Neumann (Second Respondent)
Murray Selig (Third Respondent)
John Lowbeer (Fourth Respondent)
Representation:
Counsel:
In person (Applicants)
S Callan (First Respondent)
J McDonald; M Cobb-Clark (Second, Third and Fourth Respondents)
Solicitors:
Gilchrist Connell (First Respondent)
Eddy Neumann Lawyers (Second, Third and Fourth Respondents)

File Number(s): 2018/197243
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Date of Decision:

8 June 2018

Before:

Pembroke J

File Number(s):

2018/143151

Judgment

HER HONOUR: There are currently filed in the Court of Appeal the following proceedings and applications:

A summons seeking leave to appeal filed on 7 September 2018, brought by the applicants, from the whole of the decision of Pembroke J given on 8 June 2018.

A notice of motion filed 2 October 2018 brought by the second, third and fourth respondents, in which they seek various orders in the alternative, but all directed to the making of a declaration that the summons seeking leave to appeal be dismissed by operation of the Vexatious Proceedings Act 2008 (NSW), s 13.

A notice of motion filed 9 October 2018 brought by the applicants in which they seek the following orders:

that pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Varda v Austin

Details

AGLC: De Varda v Austin [2018] NSWCA 263
Case: [2018] NSWCA 263
Decision Date: 12 November 2018

CaseChat Overview and Summary

In *De Varda v Austin*, the applicants sought leave to appeal a Vexatious Proceedings Order made by the Supreme Court of New South Wales, which had declared that the balance of their proceedings be dismissed pursuant to section 13 of the *Vexatious Proceedings Act 2008* (NSW). The applicants also sought an order referring their matter for pro bono assistance. The proceedings involved multiple respondents.

The Court of Appeal was required to determine whether to grant leave to appeal the Vexatious Proceedings Order and whether to make an order referring the applicants for pro bono assistance. The Court also had to consider the appropriate orders regarding the costs of the various applications before it.

Beazley P considered the application for leave to appeal in light of the Vexatious Proceedings Act. The Court determined that the summons seeking leave to appeal, in so far as it sought leave to appeal the dismissal of the 2018 proceedings, should be dismissed pursuant to section 13(3) of the Act. The Court also dismissed the applicants' notice of motion filed on 9 October 2018.

The Court ordered that the applicants pay the first respondent's costs of the notice of motion filed on 9 October 2018. There were no orders as to the costs of the second, third, and fourth respondents on that notice of motion. Finally, the applicants were ordered to pay the second, third, and fourth respondents' costs of the notice of motion filed on 2 October 2018.

Orders

Orders of the court

(1) Declare that the summons seeking leave to appeal filed 7 September 2018, insofar as it seeks leave to appeal from the order dismissing the 2018 proceedings, stands dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW), s 13(3);

(2) The applicants’ notice of motion of 9 October 2018 be dismissed;

(3) The applicants to pay the first respondent’s costs of the notice of motion of 9 October 2018;

(4) There be no order as to the costs of the second, third and fourth respondents on the applicants’ notice of motion of 9 October 2018;

(5) The applicants to pay the second, third and fourth respondents’ costs of the notice of motion filed 2 October 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	De Varda v Austin [2018] NSWCA 263
Hearing dates:	22 October 2018
Decision date:	12 November 2018
Before:	Beazley P
Decision:	(1) Declare that the summons seeking leave to appeal filed 7 September 2018, insofar as it seeks leave to appeal from the order dismissing the 2018 proceedings, stands dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW), s 13(3); (2) The applicants’ notice of motion of 9 October 2018 be dismissed; (3) The applicants to pay the first respondent’s costs of the notice of motion of 9 October 2018; (4) There be no order as to the costs of the second, third and fourth respondents on the applicants’ notice of motion of 9 October 2018; (5) The applicants to pay the second, third and fourth respondents’ costs of the notice of motion filed 2 October 2018.
Catchwords:	CIVIL PROCEDURE – Parties – Vexatious litigants – Stay of proceedings – leave to appeal from Vexatious Proceedings Order – Declaration that balance of proceedings be dismissed pursuant to Vexatious Proceedings Act 2008 (NSW), s 13 CIVIL PROCEDURE – referral for pro bono assistance – whether to make an order under UCPR, r 7.36 referring applicants to the registrar for referral for pro bono assistance COSTS – Party/Party – Court’s discretion
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 7, 51 Vexatious Proceedings Act 2008 (NSW), ss 3, 12, 13, 14
Cases Cited:	Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
Category:	Principal judgment
Parties:	Joseph de Varda (Applicant) Samuel Tov-Lev (Second Applicant) David Austin (First Respondent) Eddy Neumann (Second Respondent) Murray Selig (Third Respondent) John Lowbeer (Fourth Respondent)
Representation:	Counsel: In person (Applicants) S Callan (First Respondent) J McDonald; M Cobb-Clark (Second, Third and Fourth Respondents) Solicitors: Gilchrist Connell (First Respondent) Eddy Neumann Lawyers (Second, Third and Fourth Respondents)
File Number(s):	2018/197243
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 8 June 2018 Before: Pembroke J File Number(s): 2018/143151