De Varda v Austin (No 3)

[2019] NSWCA 226

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	De Varda v Austin (No 3) [2019] NSWCA 226
Hearing dates:	30 August 2019
Date of orders:	30 August 2019
Decision date:	17 September 2019
Before:	Bell P, McCallum JA and Emmett AJA
Decision:	1.   Appeal allowed.  2.   Orders 2 and 3 of Pembroke J’s decision made on 8 June 2018 to be set aside.
Catchwords:	PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 56 Legal Profession Uniform Law 2014 (NSW) s 6 Supreme Court Act 1970 (NSW) s 75A(10) Vexatious Proceedings Act 2008 (NSW) ss 8, 9, 13(3) Uniform Civil Procedure Rules 2005 (NSW) rr 13.4(1), 14.28(1), 42.7(2), 51.52
Cases Cited:	De Varda v Austin [2018] NSWCA 263 Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 Nobarani v Mariconte [2018] HCA 36; 359 ALR 31 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Viavattene v Attorney General (NSW) [2015] NSWCA 44 Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317
Category:	Principal judgment
Parties:	Joseph de Varda (First Appellant) Samuel Tov-Lev (Second Appellant) David Austin (First Respondent) Eddy Neumann (Second Respondent) Murray Selig (Third Respondent) John Joseph Lowbeer (Fourth Respondent)
Representation:	Counsel: Self-represented (Appellants) S Callan (First Respondent) J C McDonald with M Cobb-Clark (Second, Third and Fourth Respondents) A G Martin, amicus curiae   Solicitors: Gilchrist Connell (First Respondent) Eddy Neumann Lawyers (Second, Third and Fourth Respondents)
File Number(s):	2018/00197243
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Date of Decision: 08 June 2018 Before: Pembroke J File Number(s): 2018/143151

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Appellants had commenced a series of proceedings in relation to the Strathfield and District Hebrew Congregation Synagogue. Previous proceedings brought by the Appellants had sought to prevent the sale of the Synagogue, which were unsuccessful. They then instituted further proceedings in 2018, containing numerous allegations of fraud associated with the sale, and seeking to obtain the proceeds of sale from the Synagogue.

The Second-Fourth Defendants in the further proceedings filed a notice of motion seeking their dismissal and also orders under the Vexatious Proceedings Act 2008 (NSW), but had indicated in prior correspondence that they would not be seeking the orders under the Vexatious Proceedings Act when the notice of motion was returned, and would only be moving for dismissal. Notwithstanding this, the Court made orders pursuant to s 8(7)(a) of the Vexatious Proceedings Act that all proceedings in New South Wales instituted by the Appellants relating to or arising out of their complaints about the closing and sale of the Synagogue be stayed, and that the Appellants be prohibited from instituting further proceedings in New South Wales without the leave of the court.

The Second Appellant did not appear before the Court in the proceedings at first instance when the notice of motion was filed on 4 June 2018, or when it came for hearing on 8 June 2018. The First Appellant was not heard or given an opportunity to be heard at first instance in relation to the relief sought under the Vexatious Proceedings Act. Both appealed the decision to the Court of Appeal.

The issues on appeal were:

1. Whether the primary judge had erred in granting relief under the Vexatious Proceedings Act, in circumstances where the Appellants were not heard or given an opportunity to be heard in relation to the specific relief sought.

2. Whether the Court should exercise its powers pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW), and make findings under the Vexatious Proceedings Act.

The Court held, allowing the appeal:

1. The primary judge had erred in granting relief under the Vexatious Proceedings Act. Section 8(3) of the Act provides that “[a]n authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity to be heard”. No such hearing had been given: [18].

2. The Court’s power pursuant to s 75A(10) of the Supreme Court Act should not be exercised in the circumstances of the case. Amongst other reasons, the parties against whom the orders were sought had never been heard in relation to the claims for relief under the Vexatious Proceedings Act: [24]-[31].

Judgment

1. THE COURT:

In an ex tempore judgment delivered on 8 June 2018, Pembroke J dismissed proceedings which had been commenced on 7 May 2018 by Mr Joseph De Varda and Rabbi Samuel Tov-Lev (the Plaintiffs) against Messrs David Austin (the First Defendant), Eddy Neumann, Murray Selig and John Joseph Lowbeer (respectively, the Second–Fourth Defendants).

2. The dismissal of the proceedings followed the filing of a notice of motion by the Second–Fourth Defendants on 4 June 2018. That notice of motion sought the following orders:

1. That, upon the undertaking of the Second Defendant (a solicitor) to pay the filing fee, leave be granted to the Second, Third and Fourth Defendants to file in Court this Notice of Motion.

2. That this Notice of Motion be returnable instanter.

3. The proceedings be stayed whilst ever the Plaintiffs are not represented by an Australian Legal Practitioner within the meaning of s 6 of the Legal Profession Uniform Law 2014 (NSW).

4. If the Plaintiffs have not secured representation by an Australian Legal Practitioner by 30 August 2018, the proceedings be permanently stayed or dismissed.

5. Either party has leave to relist the matter on three days' notice.

6. In the event that the Plaintiffs obtain representation by an Australian Legal Practitioner prior to 30 August 2018 the matter be relisted, in accordance with the liberty granted to either party, for directions with respect to the application for the relief in prayers 7 to 12 of this Notice of Motion.

7. The proceeding be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4(1)(a), (b) and/or (c).

8. Alternatively, an order that the Statement of Claim filed on 7 May 2018 be struck out pursuant to UCPR r 14.28(1).

9. Further, in the alternative, a vexatious proceedings order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW), staying the proceedings.

10. A vexatious proceedings order pursuant to s 8 of the Vexatious Proceedings Act, prohibiting the Plaintiffs from instituting proceedings in New South Wales against any of the Defendants.

11. An order that the Plaintiffs pay the costs of the proceeding including of this notice of motion, on an indemnity basis, and that those costs be assessable and payable forthwith pursuant to UCPR r 42.7(2).

12. Such further or other orders as the Court sees fit.

3. On 1 June 2018, the solicitor for the Second–Fourth Defendants had sent a letter to each of the Plaintiffs enclosing a draft notice of motion, indicating that on 4 June 2018 relief would be sought from the duty judge in terms of prayers 1−6 of the draft notice of motion.

4. Prayers 1−6 of the draft notice of motion corresponded to prayers 3–8 of the notice of motion filed on 4 June 2018 and which we have set out in [2] above. Significantly for present purposes, prayers 1–6 of the draft notice of motion did not include the orders (orders 9 and 10 of the notice of motion filed on 4 June 2018) seeking relief under the Vexatious Proceedings Act.

5. The notice of motion filed on 4 June 2018 came on for hearing before Pembroke J on 8 June 2018. The Second Plaintiff, Rabbi Tov-Lev did not appear before the Court on either 4 or 8 June 2018. He was overseas at that time.

6. Not only did Pembroke J dismiss the proceedings (as we have already indicated) but he made the following two further orders:

“(2) I 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 concerning the closure and sale of the Holocaust Synagogue at Strathfield be stayed.

(3)   I 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 their complaints concerning the closure and sale of the Holocaust Synagogue at Strathfield without the leave of the court.”

7. It will immediately be observed that these orders were made notwithstanding that the Plaintiffs had been informed on 1 June 2018 that, notwithstanding that orders to this effect were included in the draft notice of motion, they were not amongst the orders that were to be sought when the notice of motion was returned before the duty judge in the following week. Parenthetically, counsel for the Second–Fourth Respondents took issue with the description of the synagogue as the “Holocaust Synagogue at Strathfield” submitting that the synagogue is properly named the “Strathfield and District Hebrew Congregation Synagogue”.

8. At an early point in time in the hearing of the notice of motion on 8 June 2018, the following exchange occurred between counsel then appearing for the Second–Fourth Defendants and Pembroke J:

“HIS HONOUR:   Mr Crossland, I know you have not developed your submissions very far but has any consideration been given to whether the [P]laintiffs or the [F]irst [P]laintiff should be declared vexatious?

CROSSLAND:   Well, your Honour, that is a step which we would take once a lawyer was briefed because even that proceeding would be extremely costly and time-consuming for our clients. It is one of the orders which is sought in the event that a lawyer is briefed, or counsel is briefed, whichever way the matter proceeds.

HIS HONOUR: Why do you need representation on the [P]laintiffs’ side before moving for an order under the Vexatious Proceedings Act, because I can tell you most of those applications are made against unrepresented litigants.

CROSSLAND:   I think without going against the case which would be put on that application it is apparent to me, I have to say, that the application which is sought to be put now is a different one because it concerns facts and matters which arose after the sale of the synagogue, in other words, the substance of the matter is different and there would be a risk that the court could say, “Well, there is a different set of matters being raised here. The situation is different and this has the appearance of vexatiousness.”

But there is something new in this matter, I have to say, that frankly there might be a degree of argument about that which would gain benefit from the assistance of a solicitor or lawyer to determine what the cause of action might be that is being prosecuted at the moment.

HIS HONOUR:   Others would not be so timorous but let us go on with this application.”

9. Counsel’s response was consistent with the position that had been conveyed in the letter of 1 June 2018 to which we have referred above, the effect of which was that the Plaintiffs had been told that, insofar as the draft notice of motion sought orders under the Vexatious Proceedings Act, those orders would not be sought immediately.

10. Counsel for the Second–Fourth Defendants then completed his submissions in support of the dismissal application. Counsel for the First Defendant, who had filed a separate notice of motion seeking a stay of proceedings pending the payment of certain outstanding costs orders from earlier proceedings, then made submissions. Mr De Varda was then called upon to reply.

11. Later in the transcript, at p 36, Pembroke J indicated to counsel for the Second–Fourth Defendants that he “ha[d] no problem with your claim for relief in prayer 7 of your notice of motion”. This was the prayer seeking dismissal of the proceedings. Counsel for the Second–Fourth Defendants then said the following:

“CROSSLAND: … May I say this also, if Your Honour is minded to make the order in paragraph 7, there is following on from that at 9 an additional order which could be made under Vexatious Proceedings Act. Now --

HIS HONOUR:   Yes. I must say I am tempted to make such an order.

CROSSLAND:    Yes.

HIS HONOUR:   Do you need to provide me with more submissions to do so.

CROSSLAND: No, I don't believe so. I just say this because of the way that it was approached, I have not come with a developed set of submissions but if one looks at the [Vexatious Proceedings] Act, which I don't have with me but I have had an opportunity to consider briefly, Section 6 of the [Vexatious Proceedings] Act defines "vexatious proceedings" as those proceedings which cause delay and are an abuse of process which is really the same basis for the dismissal, and an order will be made under that Act if the persons making those proceedings have frequently instituted and conducted vexatious proceedings, and we would say that I would not need to take your Honour to more than we have already today to make that point.”

So we don't have any more material. Your Honour may say that Mr De Varda should know that we are proceeding on that basis and if he wants to make more submissions we say he should be permitted to but we would draw up a form of order for your Honour to make orders to that effect under that Act.

HIS HONOUR:   No, Mr De Varda has put his case. I don't see that the interests of justice or the fairness to him requires he have more submissions.” (emphasis added)

12. Five points are apparent:

(i) Counsel appearing for the Second–Fourth Defendants departed from the position taken in the correspondence of 1 June 2018 and in the earlier stage of the hearing as reflected in the extract of the transcript set out at [8] above;

(ii) that having been said, he recognised in the passage from the transcript that has been emphasised in [11] above that Mr De Varda had not been on notice that the Second–Fourth Defendants would seek relief under the Vexatious Proceedings Act;

(iii) at no time did counsel for the Second–Fourth Defendants seek relief in terms of prayers 10 and 11 of the notice of motion which was ultimately reflected in the second of Pembroke J’s orders which are reproduced at [6] above;

(iv)   in respect of prayers 9, 10 and 11 of the notice of motion, Mr De Varda was not given an opportunity to be heard in relation to the specific relief sought under the Act;

(v)   Rabbi Tov-Lev was not heard at all in relation to that relief, he not being present in Court and in fact being overseas.

Primary judge’s judgment

13. His Honour commenced his decision by noting that the proceedings involved opposing factions associated with the Strathfield and District Hebrew Congregation and a dispute involving that congregation’s Synagogue at Strathfield.

14. In [3] of his judgment, Pembroke J noted that “the [P]laintiffs filed a statement of claim on 7 May 2018, which is lengthy, detailed and clearly obsessive. It is the latest in a series of proceedings commenced by the [P]laintiff.” His Honour then proceeded to summarise background or underlying events which included a number of earlier proceedings which had been brought by the Plaintiffs in conjunction with various other persons. At [5]–[6], his Honour said:

“One of the [P]laintiffs' contentions was that a purported election on 1 May 2011 was contrary to the Constitution and the Articles of Association of the Congregation. The underlying dispute has now come before many judges of this Court in different proceedings on different applications. It has also come before the Federal Court of Australia in proceedings relating to the bankruptcy of the [P]laintiffs resulting from their failure to pay costs orders made in this Court. As long ago as 11 March 2014, Rares J described the proceedings to that date as 'an imbroglio of bitterly fought litigation and administrative proceedings in which the appellants have not fared well to date'.

The appellants to which Rares J referred included the [P]laintiffs in these proceedings. Not only have they have not fared well, they have failed at every turn. It is time that matters were brought to a head. The applications before me today are applications by the [D]efendants for orders, among others, that the proceedings be dismissed and that an order be made pursuant to section 8 of the Vexatious Proceedings Act staying the proceedings.”

15. His Honour then reviewed the history of various sets of proceedings between 2011-2013, as well as bankruptcy proceedings brought by the Fourth Defendant against the Plaintiffs in the Federal Court in 2013-2014. His Honour then turned to the 2018 proceedings which had been commenced on 7 May and said the following:

“I am afraid it is necessary to make clear that the claims and conduct of the [P]laintiffs in these proceedings are in that special category of vexation that the law will not tolerate. The [P]laintiffs' passionate engagement in their cause has obscured the unreality of their expectations. It has blinded them to the chaos that their pursuit has created. And it has rendered them oblivious to the waste and expense that they have generated, let alone the disproportionate court time that has been consumed. Such a level of misconceived persistence serves only to hinder the efficient administration of justice.

The evidence before me does not support any basis for the contentions that have been articulated by Mr De Varda in his submissions. Those submissions were irresponsibly littered with allegations of fraud. None of them has been substantiated. A reading of the statement of claim filed on 7 May 2018, in relation to which there appears to have been no input by a legal practitioner, indicates on its face the misconceptions that underlie the [P]laintiffs' complaints. It also indicates how impossible the claims really are.

During the course of this application, Mr De Varda's submissions have included allegations impugning the conduct of a former Chairman of the Australian Security and Investments Commission, as well as other persons; complaining about forged or tampered documents for which the evidence provides no support; asserting that earlier proceedings in this [C]ourt were initiated upon the advice of the ASIC legal team and former Parliamentary Secretary of the Treasury the Honourable David Bradley; contending that the AGM held on 1 May 2011 by the 'self-appointed legal board' was a sham AGM; and that three judges of this Court: Hallen AsJ, Nicholas J and Black J failed to address certain issues concerning payments received by the [F]ourth [D]efendant.

Mr De Varda has also complained about the associate to Hallen AsJ communicating with two barristers representing the ‘self-appointed legal board of the company' and that Hallen AsJ received certain documents from the two barristers without the knowledge of the [P]laintiffs; that a judgment was acquired by fraudulent representations; that one of the documents was tampered with; that Nicholas J relied upon a second tampered document; and

that the judgments of various judges were obtained by fraudulent misrepresentation.

Mr De Varda has also alleged that forged company records were used to make a representation to the Consumer Trader and Tenancy Tribunal to establish that the 'self-appointed legal directors' were entitled to hold office; that Hallen AsJ, Nicholas J and Black J failed to address a number of assertions, including the ‘removal of the [P]laintiffs' original amended statement of claim from the Supreme Court files'; that the costs orders made by this Court were obtained by fraudulent misrepresentation; that the judicial determinations of Hallen AsJ, Nicholas J and Black J were affected by fraud; and that those judges 'should correct their jurisdictional errors that caused a miscarriage of justice to the [P]laintiffs'.

Mr De Varda contends that the court should 'quash all judgments and costs orders'; that the costs orders made in the previous Supreme Court proceedings should be set aside; that no costs should apply; that the bankruptcy proceedings initiated against himself and the [S]econd [P]laintiff and one other person were based on false claims ‘to receive the amounts of his legal fees a second time by double-dipping and seeking an unjust enrichment'.

Underlying all this clutter and gibberish is the contention that the [S]econd [D]efendant deceived the members of the Congregation by improperly closing and selling the Synagogue while the building was protected by Strathfield Council heritage orders; that the sale of the Synagogue was a crime; and that all funds representing the proceeds of sale of the Synagogue should be confiscated pursuant to the Confiscation of Proceeds of Crimes Act 1989.

All of these matters have either been considered and debated before, or I am satisfied that they are baseless and give rise to no reasonable cause of action. The only difference in substance between these proceedings and the proceedings commenced in 2011 is that the Synagogue has now been sold. Rather than seeking to prevent the sale, the [P]laintiffs now seek to obtain the proceeds of sale or at least to have them 'confiscated' in some way.”

16. At [28] his Honour said:

“There is no reasonable basis for the contentions set out in the statement of claim. They are a farrago of nonsense. The statement of claim is oppressive and vexatious and an abuse of process. It should not be allowed to remain.”

17. His Honour then went on to say:

“More importantly, having regard to the history which I have explained, it is appropriate to make orders pursuant to s 8 of the Vexatious Proceedings Act.”

He then set out a passage from his own judgment in Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 at [40]-[43] and then simply said, “[f]or those reasons, I make the following orders …”. These included the two orders under the Vexatious Proceedings Act which I have extracted at [6] above. It may be noted at this point that Pembroke J’s judgment in Zepinic went on appeal: Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (Zepinic). In the Court of Appeal, Simpson AJA, with whom McColl and Macfarlan JJA agreed, said at [54] that:

“There is, however, substance in the complaint that the procedures required by the [Vexatious Proceedings] Act were not followed. As indicated above, applications under that legislation call for (i) identification of each proceeding alleged to be ‘vexatious’; (ii) determination, in respect of each such proceedings, whether it comes within one or more of the paragraphs of the definition in s 6 and is vexatious; (iii) whether the person concerned has instituted vexatious proceedings ‘frequently’ and (v) [sic] consideration of the exercise of discretion in the light of the previous conclusions. That exercise was not undertaken. Instead, the primary judge made generalised references to ‘vexatious litigants’, and gave some examples of proceedings in which Vito Zepinic and Nina Zepinic (and Milla Zepinic) had been involved, and made adverse findings about their honesty in the conduct of those proceedings. This falls far short of what is required. Ground 2 of each appeal must be upheld.” (emphasis added)

18. Regrettably a similar characterisation may be given to Pembroke J’s analysis in the present case. More significantly, however, for present purposes is the fact that the Plaintiffs were simply not heard in relation to the orders that were made under the Vexatious Proceedings Act. This was in contravention of s 8(3) of that Act which provides that “[a]n authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard”.

19. That the Plaintiffs had not been heard and had not been given an opportunity of being heard was accepted by senior counsel appearing for the Second–Fourth Respondents on the appeal to this Court and was similarly accepted by counsel for the First Respondent. Indeed, in their written submissions in this Court, the Second–Fourth Respondents accepted that “the primary judge erred by not following the procedures required by the Vexatious Proceedings Act including, but not limited to, by not giving the [A]ppellants the opportunity to be heard”. Later in their submissions they explicitly accepted that what they had defined as the “fair hearing ground” “must be upheld”. Those submissions accepted that the Second Plaintiff, not being at the hearing on either 4 or 8 June 2018, was not heard in relation to the proposed orders and that the First Plaintiff was not put on notice that vexatious proceedings orders would be sought against him on 8 June. They also accepted that the transcript of the hearing on 8 June 2018 indicated that the First Plaintiff made submissions generally about the entirety of the proceedings but did not make and was not invited to make submissions specifically about whether a vexatious proceedings order should be made against him.

20. Notwithstanding their acceptance of the primary judge’s failure to comply with s 8(3) of the Vexatious Proceedings Act and the denial of procedural fairness, it was nevertheless submitted on behalf of the Second–Fourth Respondents that “the requirements of natural justice could have made no difference to the outcome and accordingly it would be futile to order a new hearing of the application” and that “the Court should find that a properly conducted hearing could not possibly have produced a different result”. In support of this submission, reference was made to the High Court’s decision in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54 (Stead). In oral submissions, however, senior counsel for the Second–Fourth Respondents retreated somewhat from her reliance on Stead in circumstances where the terms of s 8(3) of the Vexatious Proceedings Act proscribed the making of a vexatious proceedings order where a person had not been heard or given an opportunity of being heard. That retreat was, in our opinion, both justified and appropriate.

21. Even without s 8(3) of the Vexatious Proceedings Act, however, there would have been a material denial of procedural fairness. As was the case in Nobarani v Mariconte [2018] HCA 36; 359 ALR 31 at [40] (Nobarani), the denial of procedural fairness arose from the consequences and effect of altering the focus of the hearing at short notice or, more accurately in the present case, with no notice.

22. The Second–Fourth Respondents submitted, in the alternative, that the Court should exercise its powers pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW) as complemented by UCPR r 51.52, after hearing from the Appellants or giving them the opportunity to be heard, and make findings under the Vexatious Proceedings Act, namely that the Appellants had “frequently instituted or conducted vexatious proceedings in Australia” within the meaning of s 8(1) of that Act as well as making orders of the kind in fact made by the primary judge.

23. They submitted that such a course would best achieve the overarching purpose stipulated in s 56 of the Civil Procedure Act 2005 (NSW) rather than the remittal of the matter, and urged that this course would be consistent with the approach the Court had taken in previous decisions where the procedures dictated by the Vexatious Proceedings Act had not been properly followed at first instance. They referred, in this regard, to Zepinic in the Court of Appeal, Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 (Mahmoud) and Viavattene v Attorney General (NSW) [2015] NSWCA 44. In particular, reference was made to Payne JA’s observations in Mahmoud at [84]−[86] where his Honour had said:

“Error having been established, the question is whether the Court should remit the matter to the Common Law Division for determination or determine the matter itself. The Attorney General's primary position was that the matter should be remitted.

Generally, the Court will not remit a matter for a new trial unless satisfied that some substantial wrong or miscarriage has been occasioned which requires that course to be taken: Uniform Civil Procedure Rules 2005 (NSW) r 51.53. Where the Court is able to dispose of the matter on the merits without remittal, it should do so consistently with the overriding purpose of the Civil Procedure Act 2005 (NSW) (s 56) and the UCPR: Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 at [77] (Basten JA, Gleeson JA agreeing).

In the present context, it is clear that this Court should, if it can, re-exercise the discretion to make orders under the Vexatious Proceedings Act: Viavattene at [73], Potier at [38].”

24. In the present case, the course urged upon the Court was not an attractive course for a number of reasons.

25. First, the case was unlike a number of the other cases which have come before this Court where the primary judge had worked systematically through the earlier sets of proceedings relied upon and sought to be characterised as vexatious, having had the benefit of argument and submissions from both sides of the record and produced a reasoned judgment, but where the decision was vitiated by some technical error. In the present case, of course, the parties against whom the orders were sought had simply never been heard in relation to the claims for relief under the Vexatious Proceedings Act. Moreover, the review of the earlier sets of proceedings that was engaged in by Pembroke J for the purposes of the dismissal orders was expressed at an extreme level of generality and was exceptionally conclusory in nature, having the same unsatisfactory characteristics of the judgment at first instance in Zepinic, as described by Simpson AJA (see [17] above).

26. Secondly, it became apparent that the invitation to this Court effectively to hear, for the first time, an application for orders under the Vexatious Proceedings Act could not be completed in the time allocated for the hearing and would require the appeal to go part-heard. This was because the Second–Fourth Respondents handed up a revised chronology in the course of hearing which, for the first time, added a number of further sets of proceeding to the catalogue of proceedings which they wished to contend were vexatious and supplemented their fairly general written submissions which had been earlier filed with a very large number of references to documentary evidence before the Court said to support their case. Senior counsel for the Second–Fourth Respondents properly recognised that the Appellants, especially in their unrepresented state, could not be expected to deal with and respond to that far more granular submission on the spot and on the run.

27. Thirdly, insofar as it was sought to characterise what the Second–Fourth Respondents sought to occur in this Court as a “rehearing”, it would in truth be a hearing for the first time of their application of 4 June 2018 for orders under the Vexatious Proceedings Act. As Mr A G Martin who appeared as amicus curiae pointed out in submissions, the Second–Fourth Defendants had never in fact moved for relief under the Vexatious Proceedings Act and the primary judge could not be said, in substance, to have conducted a hearing in relation to that matter in circumstances where the Plaintiffs had simply not been heard.

28. Fourthly, to the extent that reliance was placed on s 56 of the Civil Procedure Act, the work which has been done by the Second–Fourth Defendants in support of their submissions that orders should be made under the Vexatious Proceedings Act will not have been wasted. They will be able to take advantage of that work if they move for the relief set forth in prayers 9, 10 and 11 of their notice of motion of 4 June 2018 before a judge of the Equity Court. As will be plain from what has been said above, relief under those prayers has never in fact been sought. Further, as the High Court said in Nobarani at [42], “[s]peed and frugality are often closely associated. But they must be consistent with justice.”

29. Fifthly, counsel for the First Respondent, who otherwise supported the position of the Second–Fourth Respondents, recognised in oral submissions that relief under the Vexatious Proceedings Act would most properly fall to be considered by a judge at first instance, in an orderly hearing, with the benefit of full submissions as opposed to being dealt with, on the run in a part-heard proceeding, in the Court of Appeal. We agree.

30. Sixthly, in the event that this Court were to hear, for the first time, the application for orders under the Vexatious Proceedings Act, any challenge to orders made by this Court by way of appeal could only be obtained with the benefit of a grant of special leave to appeal by the High Court cf. an application to set aside orders pursuant to s 9 of the Vexatious Proceedings Act. The Appellants would, in those circumstances, be deprived of a right of appeal to this Court which they would otherwise enjoy.

31. For the above reasons, it was not appropriate to embark upon the exercise sought by the Second–Fourth Respondents in this Court. It may very well be that they have a powerful case for orders under the Vexatious Proceedings Act and there has undoubtedly been a long history of dispute between them and the Appellants which has no doubt produced much anxiety, cost and distraction on their part. But there must be an orderly and fair hearing if the exceptional relief they seek under the Vexatious Proceedings Act is to be granted.

32. Subject to competing urgent matters, any application they make for orders under the Vexatious Proceedings Act should be dealt with expeditiously by a judge at first instance in the Equity Division of the Court.

Status of dismissal of proceedings

33. The Appellants had originally sought leave to appeal not only from the orders under the Vexatious Proceedings Act but also from Pembroke J’s decision to dismiss the proceedings. In earlier proceedings in this Court before Beazley P (De Varda v Austin [2018] NSWCA 263), the President declared that the summons seeking leave to appeal filed 7 September 2018, insofar as it sought leave to appeal from the order dismissing the 2018 proceedings, stands dismissed pursuant to s 13(3) of the Vexatious Proceedings Act. Her Honour’s reasons for making this order were set out in [29]−[34] of her judgment as follows:

“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.

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).

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.

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.

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.

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.”

34. It may be noted that the balance of the summons for leave to appeal, namely that which challenged the decisions under the Vexatious Proceedings Act, was treated as not being caught by s 13(3): see Beazley P’s judgment at [36]; Mahmoud at [7]; and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [47].

35. The consequence of this Court’s conclusion that the orders made by Pembroke J under the Vexatious Proceedings Act should not have been made is that the basis on which Beazley P made her order dismissing the summons for leave to appeal insofar as it related to the dismissal of the 2018 proceedings falls away. That order, however, still stands as does the order of Pembroke J dismissing those proceedings.

36. In practical terms, it would be open to the Appellants either to move to set aside that order and renew their application for leave to appeal from the dismissal order or to make a fresh application for leave to appeal coupled with an application for an extension of time to do so in relation to the dismissal. Any such application, however, would face a number of challenges given that the statement of claim in the 2018 proceedings the subject of Pembroke J’s dismissal order is prolix, argumentative, contains serious allegations of forgery and fraud which do not appear to be satisfactorily particularised, is repetitive and conclusory.

37. Finally, the Court records its gratitude to Mr A G Martin of counsel who acted as amicus curiae. His careful oral and written submissions facilitated the hearing of the appeal.

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Decision last updated: 17 September 2019