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

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

1. 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.

2. 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.

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

1. that pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36, they be referred to the Legal Assistance Referral Scheme of the NSW Bar Association for the purposes of obtaining pro bono assistance;

2. that “the proceedings” be stayed until they are either represented by a legal counsel appointed pursuant to that provision, or investigations by the Independent Commission Against Corruption and the Judicial Commission of New South Wales, that the applicants are seeking to initiate, have been concluded and their findings tabled;

(c)   that the judgment and orders made by Pembroke J on 8 June 2018 be set aside on the grounds of conflict of interest, apprehension of bias, actual bias, lack of impartiality and failure to recuse himself from hearing the case which involves his former client LawCover Insurance.

2. It should be noted that on 25 June 2018, the applicants filed a notice of intention to appeal. It is unclear whether at that time the applicants believed they had a right to appeal, or whether they understood that the notice of intention to appeal extended to a summons seeking leave to appeal: see UCPR, rr 51.6(a) and (b). The only point that presently needs to be made is that the respondents have been on notice of the applicants’ intention to challenge the orders made by Pembroke J on 8 June 2018 since that time.

3. Listed for hearing before me, as referrals judge, on 22 October 2018, was the second to fourth respondents’ notice of motion filed 2 October 2018 and the applicants’ notice of motion filed 9 October 2018. It should be recorded that the first applicant denied that the applicants had received the notice of motion filed by the second to fourth respondents. In response to my requirement that service of the notice of motion upon the applicants be proved, the second to fourth respondents tendered a photocopy of a letter dated 2 October 2018, forwarded by registered post to the second applicant at his nominated address for service, with a salutation addressed to the first applicant. The photocopy of the letter was marked as Exhibit 1.

4. Imprinted on the photocopy of the letter was an Australia Post Registered Post “Delivery Confirmation – Advice Receipt”, which bore a signature. The second applicant, when shown the original of the receipt, accepted that it was his signature on the receipt and that he had received the documents specified in the covering letter, namely, a notice of appearance, notice of motion filed 2 October 2018 and affidavit in support of Rosemary Grant, affirmed 2 October 2018, and a copy of the exhibit to that affidavit.

5. The respondents also pointed out that, in a directions hearing before the Registrar on 15 October 2018, there had been reference made to the notice of motion filed on 2 October 2018 and a direction had been made that the motion be listed for hearing on 22 October 2018. The first applicant, who was present at the directions hearing, did not indicate to the Registrar that service of that notice of motion and supporting documents had not been effected upon him, or that he did not otherwise have a copy of the documents.

6. Once the second applicant had confirmed to the Court that his signature appeared on the Australia Post receipt in Exhibit 1, the first applicant thereafter did not contend that the applicants did not have the notice of motion of 2 October 2018 or the supporting documents. Accordingly, I was satisfied that the applicants had notice of the application and that it was appropriate to proceed with it.

7. The orders made by Pembroke J on 8 June 2018 were in respect of proceedings commenced by the applicants by way of statement of claim on 7 May 2018 (the 2018 proceedings). The 2018 proceedings were the third in a series of proceedings first commenced by the applicants on 29 June 2011 against the present respondents.

Overview

8. Before considering what orders ought to be made on the notices of motion filed by the second to fourth respondents and the applicants on 2 October 2018 and 9 October 2018 respectively, a brief review of the facts underlying the dispute and of two earlier proceedings commenced by the applicants in the Supreme Court is necessary. This review is derived from the overview of the various proceedings undertaken by the primary judge in his reasons.

9. The dispute the subject of the various proceedings related to events in 2010 – 2011. In 2010, the second applicant was advised that his role as Rabbi at the Holocaust and War Memorial Synagogue in Strathfield (the Synagogue) was terminated. At some time in this period, a decision was made as to the sale of the Synagogue building. At the time of the commencement of the 2018 proceedings, the building had been sold. Related to the dispute was what his Honour referred to as the “Chabad Movement”, which was said to involve different religious beliefs from those practised by members of the Synagogue.

10. Whilst not expressly stated in his Honour’s reasons, I presume that the present respondents had some role in the steps referred to above being taken. This may be inferred from the identity of the respondents, the first respondent being the solicitor for the congregation, the second and third respondents being the President and Secretary of the board of the congregation respectively, and the fourth respondent being the auditor of the congregation.

The 2011 proceedings

11. The first proceeding was commenced by the applicants by summons in 2011 (the 2011 proceedings) seeking an order for relief from oppression and an order that Rabbi Tov-Lev, the second applicant, be reinstated as spiritual leader of the congregation. The applicants subsequently filed a statement of claim and an amended statement of claim.

12. A number of notices of motion were filed in the matter by both the applicants and the respondents. There were a number of interlocutory hearings and orders made in relation to these notices of motion, including an order made by Hallen AsJ (as his Honour then was) on 4 November 2011, that the amended statement of claim be struck out and that any further statement of claim be filed only with the consent of each respondent or with the leave of the court. Neither consent nor leave was ever obtained.

13. Subsequent to Hallen AsJ’s orders, the applicants filed a notice of motion seeking orders that his Honour be disqualified from hearing the matter and that his orders made on 4 November 2011 be set aside. That application was the subject of a direction made by Bergin CJ in Eq that the applicants obtain legal representation before the notice of motion could be proceeded with. This direction did not dissuade the applicants from taking further steps in the proceeding. Still without legal representation, they filed a further notice of motion seeking orders that the matter be referred to the Director of Public Prosecutions.

14. On 16 February 2012, Nicholas J ordered that the 2011 proceedings be dismissed and the notice of motion be dismissed. In addition, his Honour made the following order:

“Should [the applicants] or any of them commence further proceedings against [the respondents] on the same or substantially the same causes of action or for the same or substantially the same relief as that on which the present proceedings were commenced, that any such further proceedings be stayed until certain costs are paid.”

15. Notwithstanding the dismissal of the proceedings and the order made by Nicholas J, the applicants filed a notice of motion seeking an order that the time for compliance with the orders made by Hallen AsJ on 4 November 2011 relating to the filing of a further amended statement of claim be extended to 11 October 2012. It appears that the applicants filed a further amended statement of claim and a further amended summons at the same time as filing their notice of motion.

16. That notice of motion was determined by Black J on 15 November 2012. His Honour ordered that the further amended statement of claim and the further amended summons be struck out and that the notice of motion be dismissed. His Honour noted that it was not necessary to dismiss the proceedings because they had already been dismissed by Nicholas J and that order remained in effect.

17. On 7 June and 1 July 2013, the applicants filed further notices of motion and on 1 July 2013, a requisition for a trial by jury. Those applications were dismissed by McDougall J on 5 July 2013 and an order for costs made in favour of the respondents.

18. On 9 July 2013, the applicants filed a notice of intention to appeal in respect of the decisions of Hallen AsJ, Nicholas J, Black J and McDougall J. No appeal was filed.

19. No further applications were filed in respect of the 2011 proceedings.

The 2013 proceedings

20. In late 2013, the applicants commenced proceedings in the Common Law division of the Supreme Court, seeking, inter alia, damages in the amount of $150,000 in respect of costs orders in the 2011 proceedings and damages in respect of the “tampered version of [their] amended statement of claim”.

21. Garling J struck out the applicants’ statement of claim and allowed the applicants liberty to file and serve an application for leave to file an amended statement of claim, which they did. The 2013 proceedings were ultimately dismissed by Rothman J on 28 March 2014. In the meantime, a sequestration order was made against the estates of both applicants on the application of the fourth respondent, based upon the applicants’ failure to pay costs ordered against them in his favour. Various challenges to the sequestration orders were dismissed. However, I was informed by the applicants that they have been discharged from bankruptcy following proceedings they were able to successfully prosecute in the Federal Court.

The 2018 proceedings

22. As I have indicated, the proceedings with which Pembroke J was concerned were commenced by the applicants filing a statement of claim on 7 May 2018. His Honour identified the underlying basis for these proceedings as being a claim by the applicants that the second respondent deceived the members of the Synagogue congregation by improperly closing the Synagogue and selling the building whilst it remained protected by heritage orders. The applicants alleged that the sale of the Synagogue was a crime and that all funds representing the proceeds of sale should be confiscated pursuant to the Confiscation of Proceeds of Crimes Act 1989 (NSW). They also sought damages in respect of loss arising out of various alleged wrongdoings of the respondents.

23. In the 2018 proceedings, either as submitted to his Honour on the hearing of the second to fourth respondents’ notice of motion seeking orders that the proceedings be dismissed, and/or as alleged in their statement of claim, the applicants:

• made allegations impugning the conduct of a former chairman of the Australian Securities and Investments Commission (ASIC) and other persons;

• made complaints about forged documents for which the evidence provided no support: specifically, that the second respondent produced forged company records in 2011 containing falsified minutes of Annual General Meetings (AGM minutes): statement of claim (SOC) (6)(e), (7), (30)(h);

• asserted that the earlier proceedings in the court had been initiated upon the advice of the ASIC legal team and the former Parliamentary Secretary to the Treasurer, the Honourable David Bradbury: SOC (6), (11)(i);

• alleged that the “self-appointed illegal board” and second respondent failed to comply with subpoenas and notices to produce to provide copies of financial accounts and statements of the congregation: SOC (6)(f), (8)(j);

• alleged that the second respondent and other directors were not properly elected to the board of the congregation and did not have power to transact business on behalf of the congregation: SOC (8);

• alleged that the respondents were in breach of the Corporations Act 2001 (Cth) and the Articles of Association: SOC (8), including by failing to hold AGMs between 1996 and April 2011: SOC (6), (7), (8)(a), (17)(e), failing to keep company minute books: SOC (6)(d), (7), (8)(i), (17)(e), and lodging financial accounts with the Australian Taxation Office without the knowledge and approval of members: SOC (6)(c), (8)(h);

• asserted that members of the Synagogue had convened two Extraordinary General Meetings, of which proper notice was provided to members, where resolutions were passed removing the directors of the “self-appointed illegal board” and electing ten new directors, including the first applicant: SOC (9);

• alleged that the “self-appointed illegal board” passed a special resolution at an urgent AGM on 1 May 2011 to pay an amount of $7,500 to the fourth respondent as a bribe to remove the ten new directors from the ASIC registry: SOC (10), (30)(i) and that the first and second respondents attempted to conceal the alleged bribe: SOC (10)(h) – (j);

• alleged that the fourth respondent had also received misappropriated funds from government grants and provided forged company documents to ASIC: SOC (6), (10), (10)(k);

• contended that the AGM held on 1 May 2011 by the “self-appointed illegal board” was a sham as no quorum was present and it was backdated to 1 May 2010; SOC (8)(f), (10)(l);

• contended that ASIC refused to comply with subpoenas requesting the production of documents regarding the removal of the fourth respondent as ASIC Registered Agent of the company and asserted that ASIC staff had admitted certain forms lodged by the applicants were either lost or deleted from their computer system: SOC (11);

• alleged that there had been improper communications between the associate to Hallen AsJ and the barristers representing the “self-appointed illegal board of the company”: SOC (12);

• alleged that Hallen AsJ received documents from those barristers without the knowledge of the applicants: SOC (12), (23)(a), (29), that one of the documents (the amended statement of claim) had been tampered with and that Hallen AsJ relied on the tampered document in striking out the applicants’ pleading: SOC (13), (14) (23)(b), (29);

• alleged that Hallen AsJ improperly relied on the misrepresentation of the applicants’ former barrister, who opined that the amended statement of claim was “bad in form”, to strike out the applicants’ pleading without having regard to the applicants’ original amended statement of claim: SOC (14)(c) – (g), (29);

• asserted that Hallen AsJ had admitted in court to being briefed by the second defendant in legal matters and that this gave rise to a perception of bias: SOC (14)(h);

• alleged that Nicholas J was provided with a second tampered amended statement of claim by the first respondent, upon which he relied to dismiss the proceedings: SOC (15), (16);

• alleged that Black J relied on the decision of Nicholas J, which was acquired by fraud, to dismiss the applicants’ notice of motion and make a Functus Officio order without dealing with the second further amended summons or second further amended statement of claim: SOC (17), (30);

• alleged that forged company records had been used to make a representation to the Consumer Trader and Tenancy Tribunal (CTTT) to establish that the “self-appointed illegal directors” were entitled to hold office and enable the CTTT to evict the second applicant in reliance on those records: SOC (6)(e), (18);

• alleged that the judicial determinations of Hallen AsJ, Nicholas J and Black J were affected by fraud: SOC (19);

• alleged that Hallen AsJ, Nicholas J and Black J had failed to deal with certain matters, including issues concerning payments made to the fourth respondent: SOC (10)(m), (19), the removal of the applicants’ original amended statement of claim from the Supreme Court files, the assertion that the first defendant had tampered with the applicants’ amended statement of claim: SOC (19) and the forged AGM minutes: SOC (19);

• contended that Hallen AsJ, Nicholas J and Black J had failed to make orders requiring the respondents to comply with subpoenas and directing the reinstatement of the ten board directors by ASIC: SOC (19)(i), (j);

• alleged that Rares J relied on false and misleading statements made by the fourth respondent during cross-examination to allow the bankruptcy proceedings to go ahead: SOC (20)(b);

• alleged that the costs orders made against them had been obtained by fraudulent misrepresentation: SOC (21), (23);

• alleged that the bankruptcy proceedings were based on false claims “to receive the amounts of … legal fees a second time by double-dipping and seeking an unjust enrichment”: SOC (26);

• contended that the fourth respondent was never a creditor as the applicants had paid his legal fees in full and that the first and second respondents had signed false documents in breach of the Bankruptcy Act 1966 (Cth) that resulted in improper payments to the respondents: SOC (27);

• contended that Driver J made the sequestration orders against the applicants on the basis of false claims: SOC (27)(b);

• alleged that the second respondent changed the structure of the congregation from a company limited by guarantee into a charitable company without the knowledge and consent of Synagogue members: SOC (24);

• alleged that the second respondent in concert with the fourth respondent unlawfully sold the Synagogue and terminated the services of the second applicant without the consent of the permanent members: SOC (25), (31);

• alleged that the second respondent destroyed significant Jewish religious items to enable him to sell the Synagogue contrary to the Heritage ruling made by the Strathfield Council and made false representations to the public regarding the sale of the Synagogue: SOC (25)(a) and (c), (32)(c);

• alleged that the second respondent unlawfully committed the assets of the congregation to the Chabad Movement as collateral to enable the purchase of a property in St Ives, and made the congregation guarantors for the mortgage over the property: SOC (25), (31);

• alleged that the second respondent in concert with the fourth respondent made false entries in the financial accounts of the congregation to disguise improper payments to the Chabad Movement to fund the monthly repayment of its mortgage: SOC (31)(k); and

• made a number of further contentions, including that the applicants were not given a reasonable opportunity to present their case: SOC (28) – (30) and denied the right to have the documents they filed “properly adjudicated”: SOC (22); that the applicants were entitled to an indemnity from the congregation against all liability including the costs orders made against them: SOC (27)(c); and that the second respondent had engaged in “vote stacking” to allow him to sell the Synagogue and refused to accept 144 new members: SOC (24)(a), (31)(j).

24. The applicants, in the relief sought in the 2018 proceedings, sought an order that the judges “should correct their jurisdictional errors that caused a miscarriage of justice” and that all judgments and costs orders should be quashed. They also sought an order that no costs should apply.

25. On 4 June 2018, the second to fourth respondents filed a notice of motion seeking orders, inter alia, that the 2018 proceedings be dismissed pursuant to UCPR, rr 13.4(1)(a), (b) or (c); or alternatively, that the statement of claim filed on 7 May 2018 be struck out pursuant to UCPR, r 14.28(1). The second to fourth respondents also sought, in the alternative, a vexatious proceedings order pursuant to the Vexatious Proceedings Act, s 8, staying the proceedings, and an order under that Act prohibiting the applicants from instituting proceedings in New South Wales against any of the respondents. The second to fourth respondents’ notice of motion was listed before Pembroke J on 8 June 2018 as duty judge.

26. Pembroke J, at [27], considered that the 2018 proceedings arose out of the same dispute as was the subject of the earlier proceedings, and that the matters alleged in the proceedings were “baseless” and gave rise “to no reasonable cause of action”. His Honour observed, at [27], that the only difference in substance between the claim made in the 2018 proceedings and the earlier proceedings was that the Synagogue had now been sold. His Honour, at [28], described the allegations as a “farrago of nonsense” that should not be allowed to remain.

27. His Honour dismissed the 2018 proceedings and made orders under the Vexatious Proceedings Act, s 8(7)(a) and (b). The orders entered on JusticeLink (dated 18 June 2018) were:

“1.   Leave granted to the first defendant to file in court notice of motion dated 5 June 2018.

2.   Dismiss the proceedings.

3. Order pursuant to s 8(7)(a) of the Vexatious Proceedings Act that all proceedings in New South Wales instituted by Joseph De Varda and Rabbi Samuel Tov-Lev relating to or arising out of their complaints about the closing and sale of the Holocaust Synagogue at Strathfield be stayed.

4.   Order that Joseph De Varda and Rabbi Samuel Tov-Lev be prohibited from instituting further proceedings in New South Wales relating to or arising out of the closure and sale of the Holocaust Synagogue at Strathfield without the leave of the court.

5.   Order the plaintiffs to pay the defendants costs of these proceedings.

6.   Order that the costs be assessed and paid forthwith.”

Proceedings in the Court of Appeal

Vexatious Proceedings Act

28. The proceedings in the Court of Appeal have been filed in circumstances where a finding has been made that there is no reasonable basis for the allegations pleaded in the statement of claim and where the applicants are subject to orders made under the Vexatious Proceedings Act.

Operation of the orders made under the Vexatious Proceedings Act

29. Once an order has been made under the Vexatious Proceedings Act, the person against whom the order has been made “may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16”: s 13(1)(a). An “authorised court” is defined in s 3 to include the Supreme Court. An “appropriate authorised court” is defined in s 12 to mean, relevantly, the authorised court that made the order. In this case, as the order was made in the Supreme Court it was necessary for the applicants to seek the leave of the Supreme Court before instituting any proceedings that were constrained by the terms of the Vexatious Proceedings order.

30. Sections 13(2) and (3) provide, respectively, for the stay and dismissal of proceedings commenced without leave. Section 13(2) provides that if proceedings are commenced without the leave of the court, “the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section”. Section 13(3) provides that any proceedings stayed by s 13(2), “are taken to be dismissed by the court … in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted”, unless sooner dismissed under subs (4). No question of dismissal arises in this case under subs (4).

31. Section 14(2) provides that a person who is subject to a vexatious proceedings order prohibiting them from instituting proceedings “may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting”. The application seeking leave must be accompanied by an affidavit, the content of which is prescribed: s 14(3). Provision is made in ss 14(4)-(6) and s 16 for the procedure relating to the application and the orders that may be made.

32. The first matter that arises for determination on the 2 October 2018 notice of motion is the effect of the order made under the Vexatious Proceedings Act on the applicants’ summons seeking leave to appeal.

33. The applicants’ summons seeking leave to appeal was filed on 7 September 2018 without leave having been granted under the Vexatious Proceedings Act, or indeed without any application for leave under that Act having been made. That part of the claim in the summons which seeks leave to appeal from the dismissal of the 2018 proceedings relates to, or arises out of, the complaints made by the applicants in relation to the closure and sale of the Synagogue.

34. In my opinion, that part of the summons seeking leave to appeal from the challenge to the dismissal of the 2018 proceedings was within the scope of the order made by the primary judge under the Vexatious Proceedings Act. The consequence is that, pursuant to s 13(3), the summons, insofar as it relates to the dismissal of the 2018 proceedings, has been dismissed by operation of the statute on 5 October 2018, 28 days from the initiation of the proceedings having expired.

35. The next question is whether the applicants required leave to appeal from the orders made under the Vexatious Proceedings Act. A person seeking to appeal from an order made under the Vexatious Proceedings Act requires leave to appeal pursuant to the Supreme Court Act 1970 (NSW), s 101(2)(e) and/or s 101(2)(r): see Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, at [47], and cases cited therein. The applicants have sought that leave.

36. A further question has been raised in decisions in this Court as to whether leave to appeal from such an order is also required under the Vexatious Proceedings Act, s 14. Leeming JA in Potier, at [49], considered that leave was not required. I am of the same view and agree with his Honour’s reasoning in that regard: see also Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [7]. It should be noted that in Mahmoud v Attorney General of New South Wales, the respondent conceded that if leave was required, it should be waived by the Court.

37. Next, a question arises as to whether the applicants required leave under the Vexatious Proceedings Act to file their 9 October 2018 notice of motion. Order 1 seeks a referral for pro bono assistance. In my opinion, order 1 is not a proceeding “of the kind to which the order [under the Vexatious Proceedings Act] relates”. The position is the same in respect of order 2, which relevantly seeks a stay of the proceedings until the applicants obtain legal counsel.

38. However, order 3 sought in the notice of motion of 9 October 2018 falls into a different category and in my opinion is a proceeding “of the kind to which the order [under the Vexatious Proceedings Act] relates”. As the applicants did not obtain leave to bring proceedings in respect of that aspect of the notice of motion, I am of the opinion that the application for that order is stayed pursuant to s 13(2).

Should an order for pro bono assistance be made?

39. The next question for consideration is whether I should make an order under UCPR, r 7.36 referring the applicants to the Registrar for referral for pro bono legal assistance as sought in order 1 of the applicants’ notice of motion. That requires separate consideration of whether the referral should be made in respect of the order dismissing the 2018 proceedings, or in respect of the order made under the Vexatious Proceedings Act, or both.

40. In determining whether to make an order for pro bono assistance, the Court, pursuant to UCPR, r 7.36(2), may take into account the following matters:

“(a)   the means of the litigant, and

(b)   the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)   the nature and complexity of the proceedings, and

(d)   any other matter that the court considers appropriate.”

41. In the present case, there was evidence that the second applicant was effectively without means. Both he and the first applicant had been subject to bankruptcy proceedings and sequestration orders had been made in respect of their estates. The first applicant indicated to the Court that he was also without financial means. It is convenient to proceed on the basis that the applicants would not be able to otherwise obtain legal assistance outside the scheme. That leaves the question of the nature and complexity of the proceedings and any other matter that the Court considers relevant.

42. The applicants sought an order for referral for pro bono assistance both in respect of his Honour’s dismissal of the 2018 proceedings and the making of the order under the Vexatious Proceedings Act. The two are interrelated but it is convenient to deal first with the order for dismissal of the 2018 proceedings. Leaving aside the difficulty confronting the applicant due to the fact that this part of the summons seeking leave to appeal stands dismissed, I would not, in any event, make an order for referral in respect of that matter. Having regard to the pleadings in the statement of claim in the 2018 proceedings and the submissions made to the primary judge outlined above at [23], the likelihood of leave being granted to appeal from the order dismissing the proceedings is, in my opinion, extremely low. Indeed, I consider it to be negligible. I do not consider that the resources that are potentially available to litigants under UCPR, r 7.36 ought to be directed to proceedings that are highly unlikely to succeed.

43. That leaves the question whether to make an order under UCPR, r 7.36 in respect of the proposed challenge to the order made under the Vexatious Proceedings Act. I had indicated during the course of hearing the notices of motion an inclination to do so. However, I have vacillated on whether to make an order for pro bono assistance limited to the Vexatious Proceedings Act aspect of the summons seeking leave to appeal. There are policy factors and discretionary considerations that point in each direction.

44. UCPR, r 7.36 is directed to providing legal assistance to persons who do not have, or have not had, the benefit of such assistance and in the usual case cannot afford legal assistance out of their own resources. The making of an order under the Vexatious Proceedings Act imposes a constraint on a person’s entitlement to prosecute proceedings, including an appeal, and thus involves a conditional impediment to the person’s ability to access the courts. The impediment is conditional as the court may grant leave to bring proceedings notwithstanding that an order under the Vexatious Proceedings Act has been made. Notwithstanding that the constraint on prosecuting proceedings is conditional, an order made under the Vexatious Proceedings Act is a serious matter for an individual.

45. On the other hand, the policy and discretionary considerations which underlie the Pro Bono scheme are such that it should be available for those who have an arguable case to bring before the Court. It is thus necessary to consider the claims made in the 2011, 2013 and 2018 proceedings as they were the basis of the order made under the Vexatious Proceedings Act.

46. The 2011 and 2013 proceedings were dismissed by orders made by the judges of the Supreme Court. The claims brought in the 2018 proceedings are, in essence, the same as those brought in the earlier dismissed proceedings. In addition, the applicants have brought numerous proceedings in the Court against the respondents in the two earlier proceedings without any relevant success. Notwithstanding that an order made under the Vexatious Proceedings Act effects a serious but conditional constraint on a person’s access to the courts, I consider, given the history of the matter, that there is a real question whether any appeal against the orders made under the Act would succeed. That points against making an order for referral for pro bono assistance.

47. However, there is a more fundamental reason which points strongly against the making of an order for referral. The order made under the Vexatious Proceedings Act was limited to instituting further proceedings in New South Wales relating to or arising out of the closure and sale of the Holocaust Synagogue at Strathfield. A principal purpose of the applicants in seeking pro bono assistance was to be freed from the fetters of the order made under the Vexatious Proceedings Act so as to enable them to challenge the dismissal of the 2018 proceedings. I have already stated my opinion that the prospects of success of challenging that order are negligible.

48. Having considered all of these factors, I have determined not to make any order under UCPR, r 7.36. It follows that there is no basis for making order 2 insofar as it seeks a stay until the applicants obtain legal assistance. No basis has been demonstrated for staying proceedings until investigations are completed by ICAC or the Judicial Commission in respect of an as yet uncommenced complaint, even if I had power to stay the proceedings for that purpose.

Order 3 of the applicants’ notice of motion

49. That leaves for consideration order 3 sought in the applicants’ notice of motion of 9 October 2018. As I have indicated, I consider that this order falls within the purview of the order made under the Vexatious Proceedings Act and is thereby stayed pursuant to s 13(2).

50. But in any event, I would refuse to make the order sought. A notice of motion is not the appropriate process for the determination of questions of bias and conflict of interest. Such an application should be made to the primary judge or on appeal.

Conclusion

51. For the reasons I have given in relation to the operation of the Vexatious Proceedings Act, s 13(3), the part of the summons seeking leave to appeal from the order dismissing the 2018 proceedings stands dismissed. However, so that there is certainty as to the status of that summons, it is appropriate to make a declaration that by operation of s 13(3), that part of the summons is dismissed. That effectively disposes of the second to fourth respondents’ notice of motion filed 2 October 2018 other than in respect of costs.

Costs

52. The applicants and respondents seek costs in respect of the respective notices of motion. The applicants have been unsuccessful in their application for pro bono assistance. However, the power to order pro bono assistance may be exercised without the attendance on behalf of any person: UCPR, r 7.36(3). The second to fourth respondents did not seek to make detailed submissions as to whether an order to refer the matter to the Registrar should be made, recognising that that was a matter for the Court. Order 2 sought in the notice of motion was, in part, consequential on an order for pro bono assistance being made. The balance of the relief sought in order 2 did not occupy any court time. In the circumstances, there should be no order for costs insofar as the notice of motion of 9 October 2018 related to those orders.

53. Although the second to fourth respondents had an interest in resisting order 3 of the applicants’ notice of motion of 9 October 2018, that matter took up minimal time in argument and the second to fourth respondents were in court in any event. I would not make any order for costs in their favour in that respect.

54. The second to fourth respondents’ notice of motion of 2 October 2018 was brought in circumstances where they were faced with having to resist a summons seeking leave to appeal which was dismissed by operation of the Vexatious Proceedings Act, s 13(3). Accordingly, they should have their costs of that motion.

55. The position of the first respondent is different. He made submissions as to the referral for pro bono assistance insofar as it related to the summons seeking leave to appeal. He recognised that different considerations applied in relation to that application insofar as it related to the order made under the Vexatious Proceedings Act. He had an interest in resisting order 3.

56. Importantly, the first respondent was brought to court on the applicants’ notice of motion. Were it not for order 3, it would have been appropriate for the first respondent to submit to the order of the Court. However, having been brought to court with an interest in resisting order 3, I consider that the appropriate order to make is an order for costs in his favour on the notice of motion of 9 October 2018.

57. The first respondent, despite having an interest in supporting the second to fourth respondents’ notice of motion dated 2 October 2018, was not the moving party and the argument could have been left in the hands of the second to fourth respondents. Accordingly, I do not consider that any order should be made in the first respondent’s favour in respect of that notice of motion.

58. The orders I make are as follows:

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.

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Decision last updated: 12 November 2018