Marino v Bello

[2025] NSWDC 192

District Court

New South Wales

Medium Neutral Citation:

Marino v Bello [2025] NSWDC 192

Hearing dates:

20 March, 23 April, 22 May 2025

Date of orders:

28 May 2025

Decision date:

28 May 2025

Jurisdiction:

Civil

Before:

Catsanos SC DCJ

Decision:

(1)   The plaintiff’s Notice of Motion filed on 24 October 2024 and amended on 14 November 2024 is dismissed.

(2)   The plaintiff’s Notice of Motion filed on 11 February 2025 is dismissed.

(3)   In each Notice of Motion, I make no order as to costs.

Catchwords:

CIVIL PROCEDURE – application to set aside Notice of Discontinuance

CIVIL PROCEDURE – service – application for substituted service

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Uniform Civil Procedure Rules 2005 (NSW), Pt 10 r 10.18, Pt 36 r 36.15

Cases Cited:

Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 353 ALR 24; [2018] HCA 12

Category:

Procedural rulings

Parties:

Marino (a pseudonym) (Plaintiff)
B Bello (a pseudonym) (First Defendant)
C Bello (a pseudonym) (Second Defendant)

Representation:

Litigant in Person (Plaintiff)

File Number(s):

2020/00156610

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the names of the parties in the proceedings and any witnesses are prohibited from publication, pursuant to orders made by the Judicial Registrar on 25 May 2023.

JUDGMENT

Introduction

1. Before me are two applications brought by way of Notice of Motion by the plaintiff. By Notice of Motion, filed on 24 October 2024 and amended on 14 November 2024 (the first Notice of Motion), the plaintiff seeks orders setting aside a Notice of Discontinuance of these proceedings against the second defendant, which was filed by consent on 10 May 2023.

2. By way of Notice of Motion filed on 11 February 2025 (the second Notice of Motion), the plaintiff seeks an order for substituted service of an Examination Order on the first defendant.

Background

3. The plaintiff has at all times been self-represented.

4. These proceedings commenced as a claim for relief against six defendants, however in due course it distilled into a claim against only the first and second defendants, being husband and wife.

5. By a Notice of Discontinuance filed on 10 May 2023, signed by the plaintiff and the legal representative of the second defendant, the plaintiff discontinued these proceedings against the second defendant.

6. The Notice of Discontinuance contained the following terms:

“Consent to the proceedings being discontinued against the second defendant is given on the following terms:

1. No order as to costs.

2. The plaintiff will not enforce the costs order of 20 September 2022 by the Court of Appeal in Marino v Bello (No 3) [2022] NSWCA 181, against the second defendant.

3. The second defendant will not enforce any cost order, pre-existing cost orders only against the plaintiff.”

7. The plaintiff went on to obtain default judgment against the first defendant, with damages later assessed by his Honour Judge Waugh SC DCJ on 8 May 2024 in the sum of $65,000.

8. That judgment remains outstanding with the plaintiff, to date, having been unable to execute against the first defendant.

The First Notice of Motion

9. As well as seeking to set aside the Notice of Discontinuance against the second defendant, the first Notice of Motion in its amended form, seeks various other orders including orders for substituted service. However, the Motion contains no detail as to how such orders would be formulated and effected.

10. Only the plaintiff appeared before me on the hearing of the Motion on 20 March 2025. He did so by audio-visual link pursuant to leave granted because of health issues. The hearing presented challenges in terms of collating and understanding the evidence relied upon by the plaintiff, given the lengthy history and numerous earlier applications on the court file.

11. Since that hearing was concluded the matter has been before me on two further occasions to deal with applications by the plaintiff to adduce further evidence.

12. Ultimately, the plaintiff confined the first Notice of Motion to an application to set aside the Notice of Discontinuance against the second defendant. In particular, the plaintiff did not seek an order for substituted service of the first Notice of Motion. Rather, he relied upon service of the Notice of Motion on the solicitors who had previously acted for the second defendant. The plaintiff acknowledged, however, that those solicitors had advised him they no longer act for the second defendant and are unable to accept service. [1]

    1. As evidenced by affidavits relied upon by the plaintiff in support of the second Notice of Motion.

13. Although the plaintiff said at one point that he also served the second defendant by sending an email to her father and stepmother, in due course he withdrew that assertion and confined his argument to the proposition that provision of the Notice of Motion to the second defendant’s former solicitors was good service.

14. The matter proceeded on the basis that failure to make out his arguments as to service would be an insurmountable hurdle to the plaintiff’s application.

15. Subject to that contingency, the plaintiff advanced substantive arguments as to why he ought be permitted to set aside the Notice of Discontinuance.

16. I am not satisfied that the first Notice of Motion was properly served on the second defendant. As the plaintiff acknowledges, the solicitors in question disavowed instructions to accept service in circumstances where the proceedings against the second defendant had long since been discontinued. In support of his position, the plaintiff relies upon Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 10 r 10.18 and asserts that he can effect service upon the solicitor who had previously filed an appearance for the second defendant, unless the solicitor had stated prior to being served, that the address for service is no longer applicable.

17. I do not accept that argument. Part 10 r 10.18 is inapt and relates to service of fresh proceedings arising out of a decision in another court. In any event, the plaintiff has received express notice from the second defendant’s former solicitors that they do not act for her and do not accept service. That position is not challenged. In my view, the fact that those solicitors previously acted for the second defendant when proceedings were active against her, does not operate to make the solicitors the repository for service once those proceedings have come to an end. Contrary to the plaintiff’s submissions, nothing in the UCPR supports the position for which he contends.

18. In any event, questions of service aside, the first Notice of Motion, in my view, must fail. Despite not being necessary in light of my dispositive conclusion in relation to service, it is appropriate in the circumstances that I explain why I have come to that view.

19. Although the plaintiff does not expound the jurisdictional basis of his application for setting aside the Notice of Discontinuance, presumably it is grounded on UCPR Pt 36 r 36.15 (namely the discontinuance was irregular, illegal or against good faith). However, leaving jurisdictional considerations to one side, for the reasons which follow the plaintiff has not established the premise of his application.

20. The application to set aside the Notice of Discontinuance is essentially grounded in the contention that the plaintiff was overborne by the threat of an application to have him declared a vexatious litigant in proceedings then on foot in the Federal Circuit and Family Court. The plaintiff says he was concerned that such an application would be determined by the Presiding Judge in Chambers and would be determined against him.

21. The plaintiff told me, “I had no choice but to pull the plug because I seen what was coming. As I said, no trial”. The plaintiff told me that being declared a vexatious litigant could have had dire consequences for him in other spheres of his life and he considered it very serious.

22. However, the position has apparently now changed and as the plaintiff put it:

“But now, as I said, I’m armed to the teeth. I’ll be able to withstand any vexatious litigant or AVO or anything at all… as I said, justice was perverted your Honour. I had to discontinue proceedings not for any will of my own, because of this threat, this very imminent threat which would have been devastating to me, to my career” (Tcpt 19.06 – 19.11).

23. When I pointed out to the plaintiff at the hearing on 20 March 2025 that it appears he continues to be under threat of an application to be declared a vexatious litigant he said:

“Yes, I am. Yes, your Honour, but now I’m, but now I’m in a much, much better position …” (Tcpt 19.20).

24. The plaintiff during argument elevated his allegations to include fraud, saying:

“The vexatious litigant application was fraud when you see the evidence. It was a dud. It wasn’t real. It was fake. She lied about everything” (Tcpt 21.11 – 21.14).

25. The evidence relied upon by the plaintiff was discursive. Given his unrepresented status, the plaintiff was afforded significant latitude in the tender of evidence, to assuage his concerns that the Court have all the material he considered supported his application. As I indicated to the plaintiff, I was dubious as to the admissibility of certain audio files. Nonetheless, in the circumstances the evidence was admitted but remains subject to probative value and relevance.

26. Again, when the matter came before me on 22 May 2025 the plaintiff sought to admit a raft of documents, most of which concern applications and Orders made in the Federal Circuit and Family Court, where the plaintiff is enmeshed in what appear to be long term proceedings against his father and his father’s wife. Amongst those documents were recent applications to have the plaintiff declared a vexatious litigant. Again, I expressed misgivings as to relevance, however the plaintiff advanced the position that the documents make good his assertion that when he discontinued proceedings against the second defendant his will was overborne by the threat of fraudulent applications to have him declared a vexatious litigant. Those documents were ultimately admitted, once more, subject to relevance. [2]

    2. Since then, the plaintiff has forwarded a further document of the same type to my Chambers, which has not been admitted into evidence in the circumstances. However, for present purposes, I accept that a further application has been made to have the plaintiff declared a vexatious litigant in other proceedings.

27. The plaintiff argues that the recent applications to have him declared vexatious disclose a tendency on the part of the applicants to bring unmeritorious and fraudulent applications, which he says is what he was facing when he agreed to discontinue these proceedings against the second defendant. That submission is misconceived. The documents on their face do not establish the tendency asserted by the plaintiff. They in fact show that the plaintiff continues to prosecute claims in other jurisdictions and is the subject of applications to have him declared a vexatious litigant. The plaintiff says those applications are not bona fide and reflect an ulterior motive. That may or may not be correct. Whatever be the case, those applications will, if pressed, be decided by the relevant tribunal, on all of the evidence.

28. As I have said, the plaintiff’s case in the application before me is that he was subjected to pressure to discontinue the proceedings against the second defendant with the incentive that the threat of unfounded applications to have him declared a vexatious litigant would not be prosecuted.

29. What is clear however, is that although the plaintiff said he was under pressure when he discontinued against the second defendant, it was open to him then, as it is now, to contest any applications being made against him. The plaintiff took a forensic course and now, a significant time later, wishes to recant from that decision. There is no suggestion let alone evidence that the plaintiff was deprived of capacity because of that pressure.

30. At the end of the day, the plaintiff and second defendant reached an accommodation which provided, on the face of it, what can be seen as a benefit to both. Whether that benefit was weighted more to one party and whether there were unfounded allegations against the plaintiff are not the issues at hand. On the evidence before me, the plaintiff was not being prevented from contesting the application to have him declared a vexatious litigant. Rather, the plaintiff made a choice which he perceived in all the circumstances was to his benefit at the time. The fact that the plaintiff now feels more capable of contesting allegations that he is a vexatious litigant does not bear upon the question of whether the Notice of Discontinuance should be set aside.

31. Notably, the plaintiff agreed to discontinue against the second defendant in circumstances where he retained rights against the first defendant. The present application is brought a significant time later, only after obtaining judgment against the first defendant but being unable to execute that judgment.

32. The allegation of fraud levelled by the plaintiff is grounded in the contention that the application to have him declared a vexatious litigant was based on lies.

33. This is said to be supported by the evidence advanced by the plaintiff. Again, and without expressing a view on that evidence, but taking the plaintiff’s case at its highest, the complaint goes to the bona fides and merits of the threatened vexatious litigant application. It is something the plaintiff must have been well aware of at the time of the agreement to discontinue these proceedings against the second defendant. As I have noted that agreement reflected a forensic decision to obtain a perceived benefit. There is no evidence that the plaintiff was being precluded from defending the application to declare him a vexatious litigant, if it eventuated. Rather, he had concluded he was unlikely to succeed if he did so.

34. In the course of submissions the plaintiff referred me to the decision of the High Court in Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 353 ALR 24; [2018] HCA 12. Leaving aside the fact that the case dealt with inherent powers exercised in the Equity Division of a superior court in respect of final judgment, the principles discussed in relation to fraud do not assist the plaintiff in any event. There is no evidence or suggestion of fraud in relation to the actual filing of the Notice of Discontinuance. This was done in full knowledge, and with the consent, of the plaintiff.

35. Ultimately then, irrespective of questions of service, were I called upon to determine the substantive application and exercise my discretion, I am not satisfied there is a proper basis for the Notice of Discontinuance being set aside.

36. Accordingly, for the reasons I have outlined, the first Notice of Motion must fail.

The Second Notice of Motion

37. The second Notice of Motion arises out of the plaintiff’s ongoing inability to execute the judgment he has obtained against the first defendant.

38. The plaintiff contends this is because the first defendant is avoiding service of Examination Orders the plaintiff has sought to pursue on a number of occasions.

39. On the evidence before me, the first and second defendants were married. There is evidence that they were proprietors of a nominated company providing air conditioning services, of which only the second defendant was a director.

40. The order sought in the second Notice of Motion does not specify a proposed alternative address or means of service of an Examination Order for the purposes of an order for substituted service, be it to validate service in the past or for service going forward. However, the supporting affidavit of the plaintiff outlines a number of email addresses to which he says notice has previously been provided, albeit without response. The plaintiff says he believes service at those addresses would have brought the matter to the first defendant’s attention, but provides no reliable basis for that belief, or the conclusion that any particular email address would provide a location for effective service.

41. In an application for substituted service, the Notice of Motion should clearly specify alternate addresses or means of service. As I have noted, the present Motion does not do that. The plaintiff contends the Court ought replicate an order for substituted service made by the Registrar of the Court of Appeal in February 2022 for service at an email address commencing with the words “south”.

42. In the course of argument I raised with the plaintiff the fact that there are indications on the court file and from the transcript of an earlier appearance in February 2023 that certain email addresses (including that which he relied upon for substituted service in the Court of Appeal) may have blocked the plaintiff. The plaintiff acknowledged he was told he had been blocked from some of the email addresses he has pursued but does not have personal knowledge of that fact. As he put it,

“They just say, ‘hey, you’re blocked’. Do you know what I mean? How can I admit to something that I don’t have personal knowledge of?” (Tcpt 31.39 – 31.40).

43. This information does not appear in the plaintiff’s affidavits in support of the second Notice of Motion. However, if, and to what extent, the plaintiff may be blocked from email communications is obviously a relevant consideration in the application for substituted service before me.

44. I cannot be confident that sending emails to addresses which for years have gone unanswered and may be blocked is likely to bring an Examination Order to the attention of the first defendant.

45. Otherwise, the plaintiff’s evidence includes communication from a process server which recounts having attempted to serve documents on the first defendant’s parents in February 2024. In a narrative, not in the form of sworn evidence, there is reference to the process server asking the father of the first defendant to pass a message on to him, only to be told that the first defendant was still overseas and may not be coming back. That narrative records the fact that the process server subsequently spoke to the mother of the first defendant who advised him that the first defendant was overseas and whilst he had planned to return to Australia, she was unsure whether he was coming back.

46. I don’t know if the first defendant is still, or ever was, overseas. I don’t know if the first defendant is still married to the second defendant.

47. I know, from an Australian Securities and Investment Commission search, which was tendered by the plaintiff, that as at November 2023 the registered address of the corporation operating the air conditioning business was disclosed as an address in Umina Beach. I also note from the plaintiff’s affidavit that the business in question is said to have a registered company “contact” address in Lakemba. It is also said to have a so-called “registered business address” in Bass Hill, being the address where the process server is said to have spoken to the first defendant’s parents. I do not have any up-to-date evidence however that the first defendant remains associated with that business.

48. Much of the information produced by the plaintiff is dated, fragmented and not in reliable evidentiary form. It does not provide any basis for confidently anticipating an effective address for service. On top of that, as I have said, the most recent attempts to serve the first defendant resulted in an indication that he was overseas.

49. It is not for the Court to advise the plaintiff on evidence, however, whether it be by way of direct enquiry, documents produced under subpoena, publicly available records, or information obtained through licenced enquiry agents, the plaintiff will need to establish that the first defendant is likely to be in Australia and provide the Court with a method of service that is reasonably likely to bring the Examination Order to the first defendant’s notice.

43. For those reasons, in accordance with the Orders that follow, the application for substituted service is unsuccessful.

Orders

51. Accordingly, I make the following orders:

1. The plaintiff’s Notice of Motion filed on 24 October 2024 and amended on 14 November 2024 is dismissed.

2. The plaintiff’s Notice of Motion filed on 11 February 2025 is dismissed.

3. In each Notice of Motion, I make no order as to costs.

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Endnotes

Decision last updated: 28 May 2025