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McGettigan v Coulter

McGettigan v Coulter

Case [2024] NSWCA 148 14 June 2024

Statutory Interpretation

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McGettigan v Coulter [2024] NSWCA 148
Hearing dates: 12 June 2024
Date of orders: 14 June 2024
Decision date: 14 June 2024
Before: Payne JA; Stern JA.
Decision:
1. Extension of time for the filing of the application for leave to appeal is granted.
2. Application for leave to appeal dismissed with costs.

Catchwords:
APPEALS – leave to appeal – orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) – whether leave required – orders interlocutory – leave required under Supreme Court Act 1970 (NSW), s 101(2)(e)
APPEALS – leave to appeal – whether appeal involves issue of principle, question of public importance or reasonably clear injustice – no issue of principle or question of public importance raised – no arguable errors

Legislation Cited:
Supreme Court Act 1970 (NSW), s 101(2)(e)
Vexatious Proceedings Act 2008 (NSW), ss 6, 8, 9
Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 50.12(1)(a)

Cases Cited:
Batterham v Nauer [2020] NSWCA 204
Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Collier v Attorney General (NSW) [2023] NSWCA 273
De Varda v Austin [2018] NSWCA 263
Fuller v Toms (2015) 234 FCR 535; [2015] FCAFC 91
Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Macatangay v State of NSW (No 2) [2009] NSWCA 272
Mahmoud v Attorney General (NSW) [2017] NSWCA 12
McGettigan v Coulter [2022] NSWCA 166
McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356
McGettigan v Coulter; Coulter v McGettigan [2021] NSWSC 1097
Potier v AttorneyGeneral (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129

Category: Principal judgment
Parties:
John Patrick McGettigan (Applicant)
Glen Patrick Coulter (First respondent)
Rhonda Anne Coulter (Second respondent)
Representation: Counsel:
Self-represented (Applicant)
J Brown and S Hanscomb (Respondents)

File Number(s): 2024/112494
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1641

Date of Decision:

22 December 2023

Before:

Richmond J

File Number(s):

2023/192712

JUDGMENT

THE COURT: The applicant seeks leave to appeal from orders of Richmond J on 22 December 2023: McGettigan v Estate of the Late Beverley Teresa McGettigan [2023] NSWSC 1641 (“primary judgment” or “J”). His Honour had before him three notices of motion:

A motion filed 28 June 2023 by the applicant seeking orders that $1.48 million be paid into court by the respondents.

A motion filed 2 August 2023 by the respondents (the second and third defendants in the substantive proceedings) seeking orders striking out both the applicant’s motion of 28 June 2023 and the statement of claim in the proceedings, and, under the Vexatious Proceedings Act 2008 (NSW) (“VP Act”), declaring that the applicant is a vexatious litigant and restraining the applicant from commencing proceedings against the respondents without first obtaining leave of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McGettigan v Coulter

Details

AGLC: McGettigan v Coulter [2024] NSWCA 148
Case: [2024] NSWCA 148
Decision Date: 14 June 2024

CaseChat Overview and Summary

The proceeding concerned an application for leave to appeal from orders made by a judge of the Supreme Court of New South Wales under section 8 of the *Vexatious Proceedings Act 2008* (NSW). The applicant, McGettigan, sought leave to appeal against those orders, while the respondent was Coulter.

The primary legal issues before the Court of Appeal were whether leave to appeal was required from the orders made under the *Vexatious Proceedings Act*, and if so, whether the application for leave met the criteria for granting such leave. Specifically, the court had to determine if the orders were interlocutory, thereby requiring leave under section 101(2)(e) of the *Supreme Court Act 1970* (NSW), and whether the appeal involved an issue of principle, a question of public importance, or a reasonably arguable case of injustice.

The Court of Appeal held that the orders made under section 8 of the *Vexatious Proceedings Act* were interlocutory in nature, and therefore, leave to appeal was required. The court found that the application for leave did not raise any issue of principle or question of public importance, nor did it demonstrate any reasonably arguable errors or injustice. Consequently, the court dismissed the application for leave to appeal.

The Court of Appeal granted an extension of time for the filing of the application for leave to appeal but ultimately dismissed the application for leave to appeal, ordering that McGettigan pay Coulter's costs.

Orders

Orders of the court

1. Extension of time for the filing of the application for leave to appeal is granted.

2. Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

McGettigan v Coulter [2024] NSWCA 148

Most Recent Citation

Proietti v Proietti [2025] NSWCA 11

Cases citing this decision · 2 of 2 shown

Byrne v Turner Freeman Lawyers
[2025] NSWCA 146 Para 9

…Commonwealth Bank of Australia Ltd [2019] NSWCA 241 (“ Poulos ”); Singh v Khan [2021] NSWCA 281; 363 FLR 88; and McGettigan v Coulter [2024] NSWCA 148.…
Proietti v Proietti
[2025] NSWCA 11 Para 9

…It is relevant to note that a VPO is interlocutory: see McGettigan v Coulter [2024] NSWCA 148 at [4]-[8]; see also Batterham v Nauer [2020] NSWCA 204 at [8]; Kostov v State of New South Wales [2019] NSWCA 17; Viavattene v Attorney General of New South Wales [2014] NSWCA 218 ( Viavattene ) at [2]; Klewer v Attorney…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

McGettigan v Estate of the Late Beverley Teresa McGettigan
[2023] NSWSC 1641 Para 1

…COURT: The applicant seeks leave to appeal from orders of Richmond J on 22 December 2023: McGettigan v Estate of the Late Beverley Teresa McGettigan [2023] NSWSC 1641 (“primary judgment” or “J”). His Honour had before him three notices of motion:…
Collier v Attorney General (NSW)
[2023] NSWCA 273 Para 4

…in Collier v Attorney General (NSW) [2023] NSWCA 273 at [5] Kirk JA (Ward P and Griffiths AJA agreeing) held that leave to appeal is required against an order under s 8 of the VP Act.…
Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie
[2023] FCA 884 Para 5

…s in their written submissions refer to the judgment of Jackman J in Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884 (“ Krejci ”) where, having regard to the decision of the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 (where the question wa…
McGettigan v Coulter
[2022] NSWCA 166 Para 22

…e a witness that was not cross-examined below. On 29 August 2022 this Court dismissed both the appeal and that notice of motion: McGettigan v Coulter [2022] NSWCA 166 (“AJ”).…
Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company
[2022] NSWCA 118 Para 28

…going beyond something that is merely arguable”: Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15] (Bell CJ, Ward P and Basten AJA agreeing).…
McGettigan v Coulter; Coulter v McGettigan (No 2)
[2021] NSWSC 1356 Para 19

…ered a second judgment in the 2020 Equity and Probate Proceedings ordering a gross sum costs order: McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356.…
McGettigan v Coulter & Anor; Coulter & Anor v McGettigan
[2021] NSWSC 1097 Para 17

…n 31 August 2021 Slattery J delivered judgment in the Probate Proceedings and the 2020 Equity Proceedings: McGettigan v Coulter; Coulter v McGettigan [2021] NSWSC 1097 (“J1”). His Honour dismissed both proceedings, granted probate of the 2000 Will, found that the applicant had manufactured numerous false documents i…
Batterham v Nauer
[2020] NSWCA 204 Para 3

…in Batterham v Nauer [2020] NSWCA 204 at [8] Simpson AJA (Macfarlan and Payne JJA agreeing) found that the applicant had correctly accepted that leave to appeal against an order made under s 8 of the VP Act was required; and…
De Varda v Austin
[2018] NSWCA 263 Para 1

…in De Varda v Austin [2018] NSWCA 263 at [35] Beazley P, having referred to the judgment of Leeming JA in Potier , held that leave to appeal was required;…
Mahmoud v Attorney General of New South Wales
[2017] NSWCA 12 Para 2

…in Mahmoud v Attorney General (NSW) [2017] NSWCA 12 at [7], [9] Payne JA (Beazley P and Macfarlan JA agreeing) noted that the Attorney General conceded that leave to appeal was required and should be granted, and Court proceeded on that basis;…
Fuller v Toms
[2015] FCAFC 91 Para 7

…Similarly, whilst the respondents also refer to the decision of the Full Court of the Federal Court in Fuller v Toms (2015) 234 FCR 535; [2015] FCAFC 91, the Court’s conclusion in that case that an order under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) was final turned on the terms of s 37AO(5) tha…
Potier v Attorney General (NSW)
[2015] NSWCA 129 Para 4

…Macatangay v State of NSW (No 2) [2009] NSWCA 272 at [11]. As to the orders under the VP Act, in Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (“ Potier ”) Leeming JA (Basten and Meagher JJA agreeing) found that leave to appeal against orders under the VP Act was probably required under s 10…
Potier v Attorney General in and for the State of New South Wales
[2014] NSWCA 256 Para 4

…er is interlocutory: Macatangay v State of NSW (No 2) [2009] NSWCA 272 at [11]. As to the orders under the VP Act, in Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (“ Potier ”) Leeming JA (Basten and Meagher JJA agreeing) found that leave to appeal against orders under the VP Act was probably r…
Macatangay v State of New South Wales (No 2)
[2009] NSWCA 272 Para 4

…upreme Court Act 1970 (NSW), s 101(2)(e). As to order 1, it is well established that such an order is interlocutory: Macatangay v State of NSW (No 2) [2009] NSWCA 272 at [11]. As to the orders under the VP Act, in Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 (“ Potier ”) Leeming JA (Basten…
Kuligowski v MetroBus
[2004] HCA 34 Para 5

…(in liq) v Sebie [2023] FCA 884 (“ Krejci ”) where, having regard to the decision of the High Court in Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 (where the question was whether a decision was final for the purposes of the doctrine of issue estoppel), his Honour found that orders under s 8 of the V…

Legislation cited in this decision · 4

Vexatious Proceedings Act 2008 (NSW)
6, 8, 9 4 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
14.28, 50.12(1)(a) 3 mentions (from Para 9)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 7)
Supreme Court Act 1970 (NSW)
101(2)(e) 1 mention (from Para 4)

Medium Neutral Citation:	McGettigan v Coulter [2024] NSWCA 148
Hearing dates:	12 June 2024
Date of orders:	14 June 2024
Decision date:	14 June 2024
Before:	Payne JA; Stern JA.
Decision:	1. Extension of time for the filing of the application for leave to appeal is granted. 2. Application for leave to appeal dismissed with costs.
Catchwords:	APPEALS – leave to appeal – orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) – whether leave required – orders interlocutory – leave required under Supreme Court Act 1970 (NSW), s 101(2)(e) APPEALS – leave to appeal – whether appeal involves issue of principle, question of public importance or reasonably clear injustice – no issue of principle or question of public importance raised – no arguable errors
Legislation Cited:	Supreme Court Act 1970 (NSW), s 101(2)(e) Vexatious Proceedings Act 2008 (NSW), ss 6, 8, 9 Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 50.12(1)(a)
Cases Cited:	Batterham v Nauer [2020] NSWCA 204 Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 Collier v Attorney General (NSW) [2023] NSWCA 273 De Varda v Austin [2018] NSWCA 263 Fuller v Toms (2015) 234 FCR 535; [2015] FCAFC 91 Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Macatangay v State of NSW (No 2) [2009] NSWCA 272 Mahmoud v Attorney General (NSW) [2017] NSWCA 12 McGettigan v Coulter [2022] NSWCA 166 McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356 McGettigan v Coulter; Coulter v McGettigan [2021] NSWSC 1097 Potier v AttorneyGeneral (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129
Category:	Principal judgment
Parties:	John Patrick McGettigan (Applicant) Glen Patrick Coulter (First respondent) Rhonda Anne Coulter (Second respondent)
Representation:	Counsel: Self-represented (Applicant) J Brown and S Hanscomb (Respondents)
File Number(s):	2024/112494
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2023] NSWSC 1641 Date of Decision: 22 December 2023 Before: Richmond J File Number(s): 2023/192712