Murch v Annesley
[2021] VSCA 83
•31 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0005
| ROBERT GEORGE MURCH and ORS (according to the Schedule attached) | Applicants |
| v | |
| PAUL DAVID ANNESLEY and ORS (according to the Schedule attached) | Respondents |
S EAPCI 2021 0013
| PAUL DAVID ANNESLEY | Applicant |
| v | |
| ROBERT GEORGE MURCH and ORS (according to the Schedule attached) | Respondents |
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| JUDGES: | BEACH, EMERTON and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 31 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 83 |
| JUDGMENT APPEALED FROM: | [2020] VSC 837 (Forbes J) |
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PRACTICE AND PROCEDURE – Vexatious proceedings – Applications for leave to appeal – Applications required to be heard on the basis of written submissions unless exceptional circumstances and in interests of justice to conduct an oral hearing – No exceptional circumstances – Applications heard on the papers – Vexatious Proceedings Act 2014, ss 79 and 84.
PRACTICE AND PROCEDURE – Vexatious proceedings – Applications for leave to appeal – Extended litigation restraint orders – Acting in concert order – Application for leave to appeal against grant of ELRO refused – Application for leave to appeal against refusal of ELRO and acting in concert order refused – Vexatious Proceedings Act 2014, ss 16, 17, 34 and 35.
PRACTICE AND PROCEDURE – Vexatious proceedings – Costs – Primary judge not ordering costs against parties against whom ELROs granted – Application for leave to appeal against failure to make costs orders granted.
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| APPEARANCES: |
| In accordance with s 84 of the Vexatious Proceedings Act 2014, these applications for leave to appeal were determined on the basis of written submissions and without an oral hearing. |
BEACH JA
EMERTON JA
KENNEDY JA:
In December 2019, Robert George Murch, Robin Kissel and R G Murch Nominees Pty Ltd filed an originating motion in the Trial Division seeking Extended Litigation Restraint Orders (‘ELROs’) under the Vexatious Proceedings Act 2014 (’the Act’) against six defendants, Paul David Annesley, Sharlene Phyllis Annesley, Susan Annesley, David Tatana, Wirihana Tatana and Annesley Investments Pty Ltd.
The proceeding was heard by Forbes J on 21 August 2020. On 11 December 2020 her Honour made ELROs against the first three defendants, Paul, Sharlene and Susan Annesley. No order was made against the fourth, fifth and sixth defendants (the Tatanas and Annesley Investments). Additionally, her Honour ordered that there be no order as to costs.[1]
[1]Murch v Annesley [2020] VSC 837 (‘Reasons’).
Section 79 of the Act permits a party, with the leave of the Court, to appeal on a question of law arising in any decisions, identified in the section, made by a court or tribunal, including decisions to grant or refuse an ELRO. Pursuant to that section:
·the plaintiffs (Mr Murch, Ms Kissel and Murch Nominees) seek leave to appeal in relation to the judge’s failure to make an order against the sixth defendant (Annesley Investments), and her Honour’s failure to make a costs order in favour of the plaintiffs; and
·the first defendant (Mr Annesley) seeks leave to appeal against the order made against him.
Pursuant to s 84 of the Act, this Court is required to determine the applications for leave to appeal, ‘on the basis of written submissions, without the appearance of [the parties]’ unless we consider that ‘there are exceptional circumstances’ and that ‘it is appropriate to [conduct an oral hearing], having regard to the interests of justice’. No party contended that there were exceptional circumstances, or that it was appropriate to conduct an oral hearing having regard to the interests of justice. Accordingly, both applications for leave to appeal fall to be determined on the basis of the written submissions filed by the parties.
Relevant statutory provisions
The provisions governing the making, and effect, of ELROs are contained in pt 3 (ss 16–27) of the Act.
Section 16 of the Act permits the Attorney-General, a person against whom a vexatious proceeding has been commenced or conducted, and a person with a sufficient interest in the matter, to apply for an ELRO. A person other than the Attorney-General, must not apply for an ELRO without leave from the jurisdiction in which the order is sought. Section 16(3) relevantly provides that a court may grant leave to a person to apply for an ELRO if the Court is satisfied that:
(a) there is merit in the application; and
(b) the making of the application would not be an abuse of process.
Section 17(1) of the Act relevantly provides that a court may make an ELRO against a person if the Court is satisfied that:
the person has frequently commenced or conducted vexatious proceedings —
(a) against a person or other entity; or
(b) in relation to a matter.
The expression ‘vexatious proceeding’ is defined in s 3 of the Act to include:
(a)a proceeding that is an abuse of the process of a court or tribunal;
(b)a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c)a proceeding commenced or pursued without reasonable grounds;
(d)a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose;
Sections 20 to 24 of the Act deal with the content of ELROs that are made in different jurisdictions. Section 20 of the Act deals with the content of an ELRO made by the Supreme Court. It provides that the Supreme Court may direct that a person must not continue or commence a proceeding in respect of a matter described in the order, without the leave of the Court.
Section 25 of the Act provides that on the making of an ELRO, subject to the terms of the order, a proceeding to which the order relates ‘is stayed’; and a proceeding that is commenced in contravention of the order is ‘of no effect’.
Section 27 of the Act provides that an ELRO remains in force for the period specified in the order.
Factual background
Sharlene Annesley (the second defendant) was the registered proprietor of a property situated in Bulla (‘the property’). In August 2013, she entered into an agreement with Wayne Johnstone and his company, Bankseea Pty Ltd for the sale of the property. Mr Johnstone and Bankseea borrowed funds from the ANZ Bank for the purpose of purchasing the property. Subsequently, Mr Johnstone and Bankseea defaulted on their loans, and the ANZ Bank commenced proceedings in the County Court seeking possession of the property.
Ultimately, the ANZ Bank obtained a judgment in default for possession of the property. In September 2018, Murch Nominees (the third plaintiff) purchased the property from the ANZ Bank as mortgagee in possession.
The Annesleys claim that neither Johnstone nor Bankseea paid the full purchase price for the property. Their case is, and has been since 2013, that Sharlene Annesley remains the real owner of the property. This claim is made in the face of various judgments and court orders that ultimately permitted the ANZ Bank, as mortgagee in possession, to sell the property to Murch Nominees.[2] The Annesleys’ position is that the plaintiffs have been, and continue to be, complicit in a fraud with the ANZ Bank, and that Murch Nominees is ‘the receiver of stolen property’.
[2]For further detail in relation to the facts of the dispute between the parties, see Reasons [19]–[25].
On 22 September 2018, following settlement of Murch Nominees’ purchase from the ANZ Bank, the first and second plaintiffs attended the property. The gate was blocked. They cut the fence to gain access, before driving onto the property. Their vehicle was rammed, and they were pursued by a vehicle driven by Mr Annesley, until they left the property.
As a result of what occurred on 22 September 2018, police applied for, and obtained, ex parte personal safety intervention orders on behalf of Mr Murch and Ms Kissel, against Mr Annesley.
What then ensued was a veritable blizzard of proceedings, in which multiple applications and appeals were, to greater and lesser extents, pursued by the Annesleys.[3] As the judge observed, in making their applications for ELROs, the plaintiffs relied upon the following:
·Paul Annesley — 26 proceedings;
·Sharlene Annesley — 5 proceedings;
·Susan Annesley — 6 proceedings; and
·Annesley Investments — 2 proceedings.
[3]For further detail in relation to these proceedings, see Reasons [28]–[62].
Primary judge’s reasons
The judge commenced her reasons for judgment by identifying the background to the dispute.[4] Her Honour then summarised the relevant statutory provisions and principles to be applied.[5] During the course of this part of her Honour’s reasons for judgment, the judge referred to ss 34 and 35 of the Act, which concern the making of an ‘acting in concert order’. The judge observed that in the alternative to seeking ELROs, the plaintiffs sought acting in concert orders against the second to sixth defendants on the basis of an ELRO being made against the first defendant (Mr Annesley).[6]
[4]Reasons [1]–[6].
[5]Ibid [7]–[18].
[6]Ibid [15].
Next, the judge set out the extensive history of litigation between, and involving, the parties.[7] Having identified and described an extensive litigation history, the judge said that she was satisfied that the first and second plaintiffs were persons to whom s 16(1)(b) applied, in that they are persons against whom a vexatious proceeding has been commenced; and that the third plaintiff met the definition of ‘a person with a sufficient interest in the matter’ as required by s 16(1)(c).[8]
[7]Ibid [26]–[68].
[8]Ibid [72].
The judge then turned to the requirements of s 16(3) of the Act. She concluded that the volume of litigation commenced by the defendants, across the Magistrates, County and Supreme Courts and at VCAT, was sufficient to demonstrate that there was ‘merit in the application’ as required by s 16(3)(a).[9] Her Honour then dealt with whether the making of the application for ELROs would be an abuse of process,[10] as follows:
The application to restrict a party’s access to a court by another individual against whom that party is attempting to obtain relief, may amount to an abuse of process. Paul Annesley submits that this case is such an abuse. However, the application is directed at the prevention of ongoing vexatious conduct against the plaintiffs and in all the circumstances I accept that it is not brought to obtain some collateral advantage or other improper purpose. To the extent Paul Annesley submits that it is an abuse of process he relies upon the underlying complaint as to their continued lawful possession of the property and therefore the unlawful actions of the police and the ANZ bank. This ignores the judgments that, in various contexts, have denied any action enforceable against Murch or Murch Nominees or against Kissel.[11]
[9]Ibid [73].
[10]See s 16(3)(b) of the Act.
[11]Reasons [74].
The judge then considered the position of each defendant separately. Having regard to the issues in this Court, it is only necessary to refer to her Honour’s reasons for making an order against the first defendant (this order being challenged by the first defendant’s application for leave to appeal); and her Honour’s failure to make an order against the sixth defendant (that failure being challenged by the plaintiffs in their application for leave to appeal).
With respect to the first defendant, the judge said:
I am satisfied that the various PSIO applications made in the Magistrates’ Court by Paul Annesley were vexatious. There were five. Within those five proceedings there were numerous applications for variations or re-hearings. All were made ex parte and on most occasions Paul Annesley did not then attend for a contested hearing. Despite this appeals were lodged against all disputed outcomes. They were, as Judge Coish found, applications that misused the legal system and were vexatious, frivolous and in bad faith. That alone would be sufficient to satisfy me that s 17(1) has been met.
I am fortified in this by the fact that in Supreme Court proceedings commenced by Murch Nominees in response to the ASIC filing by Annesley Investments Pty Ltd, that Paul Annesley conducted his and his company’s defence of those proceedings in a manner that prolonged and delayed matters without any reasonable basis.
In the same way when filing for urgent injunctive relief in December 2018, Paul Annesley did not press for urgency at court on the first return and then failed to meaningfully participate in the litigation he had commenced. The proceeding was struck out with the observation that it had been continued by conduct causing loss of time to the Court and to Murch. Each meets the definition of a vexatious proceeding.
Paul Annesley’s application for a re-hearing, as an alleged representative of Murch Nominees in the VCAT proceeding commenced by David Tatana and struck out previously. The application was subsequently struck out despite production of a purported tenancy agreement between David Tatana and Paul Annesley. The application was made without reasonable grounds and for a collateral purpose.[12]
[12]Ibid [78]–[81] (footnote omitted).
With respect to the sixth defendant, the judge said:
Finally the plaintiffs seek an order restraining Annesley Investments Pty Ltd. Unlike a natural person a corporation can only act in legal proceedings by a solicitor unless with leave of the Court.[13] The grant of leave by a court is a matter of discretion. That, it might be thought, would ordinarily be sufficient to prevent the commencement or continuation of vexatious proceedings by corporate litigants. This distinction is an important safeguard. Unlike individuals a corporate litigant has no absolute right to appear self-represented. The vexatious qualities of the corporate defendant are really those attributed to its directors Paul or Sharlene Annesley. I do not see a basis upon which I would exercise my discretion to make an extended litigation restraint order separately against the company.
The plaintiffs therefore are entitled to orders which will prevent the first, second and third defendants from commencing any further proceedings against the plaintiffs or in relation to the identified properties unless leave of the Court to do so is first obtained.[14]
[13]Rule 1.17 Supreme Court (General Civil Procedure) Rules 2015 (Vic), Rule 1.17 County Court Civil Procedure Rules 2018 (Vic) and Rule 1.14 Magistrates’ Court General Civil Procedure Rules 2020(Vic).
[14]Reasons [94]–[95] (footnote in original).
First defendant’s application for leave to appeal
In his application for leave to appeal, the first defendant identifies two proposed grounds of appeal. The first proposed ground cavils with the judge’s conclusion that there was merit in the plaintiffs’ application within the meaning of s 16(3)(a) of the Act. The second proposed ground cavils with the judge’s conclusion that the plaintiffs’ application for an ELRO against him would not be an abuse of process.
With respect to proposed ground 1, the first defendant contended:
Forbes J did not address facts around Robert Murch and Robin Kissel entering [the property] by illegally cutting locks and fences, while Bankseea was still on title and without a warrant of possession or order of possession. Because of the absence of a warrant of possession or order of possession for Murch or Murch Nominees, it invalidates the Murch application and creates the Annesley merit. This nullifies the vexatious application’s merit.
In relation to proposed ground 2, the first defendant again sought to agitate ‘the merit of the Annesley claim of being in possession of [the property]’ and other underlying issues which have previously been determined against him. The first defendant’s written case similarly sought to rely on matters that had been finally determined against him.
In our view, and for the reasons her Honour gave, the judge was plainly correct to make an ELRO order against the first defendant. On the evidence, the judge could have come to no other conclusion than that the first defendant had frequently commenced and conducted vexatious proceedings against the plaintiffs. There is no basis for the first defendant’s contention that there was insufficient merit in the plaintiffs’ application against him. Similarly, there is no basis for the first defendant’s contention that the plaintiffs’ application against him was an abuse of process.
An appeal by the first defendant would enjoy no prospect of success. Accordingly, his application for leave to appeal must be refused.
Plaintiffs’ application for leave to appeal
As we have already said, the plaintiffs’ application for leave to appeal contains two proposed grounds of appeal. The first concerns the judge’s failure to make an order for costs in the plaintiffs’ favour, and the second concerns the judge’s failure to make any order against the sixth defendant. It is convenient to consider the plaintiffs’ second proposed ground of appeal first.
Proposed ground 2: the failure to make an order against the sixth defendant
Proposed ground 2 asserts that the judge erred in her consideration of whether to make an ELRO, or an acting in concert order, against the sixth defendant. In support of this ground, the plaintiffs contend that the judge:
(a)took into account irrelevant considerations, namely whether a corporation was required by r 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 to not take any step in a proceeding save by a solicitor; and
(b)failed to properly consider the evidence in respect of the [sixth defendant].
In their written case in this Court, the plaintiffs emphasise the following passage in her Honour’s reasons:
The vexatious qualities of the corporate defendant are really those attributed to its directors Paul or Sharlene Annesley. I do not see a basis upon which I would exercise my discretion to make an extended litigation restraint order separately against the company.[15]
[15]Ibid [94].
The plaintiffs submitted that, ‘implicit within those statements is that [the sixth defendant] has acted vexatiously’. They contended that, while the vexatiousness of the sixth defendant may well be attributed to its directors, it is a separate legal entity which, in the hands of other directors, may engage in the vexatious conduct it has engaged in to date. Moreover, they submitted that nothing in the judge’s orders prohibits either of the first two defendants from seeking, encouraging or procuring such conduct.
As to the impediment created by r 1.17, the plaintiffs contended that this was a ‘barrier more imagined than real’ — the first defendant having previously been given leave to appear for the sixth defendant. Additionally, it was submitted that the limitation created by r 1.17 did not apply to proceedings that might be commenced at VCAT.
In our view, the plaintiffs’ proposed appeal in relation to the judge’s failure to make an order against the sixth defendant has no real prospect of success.
With respect to the sixth defendant, it is to be remembered that the plaintiffs relied upon two proceedings.[16] While evidence disclosed other conduct on the part of the sixth defendant,[17] what needed to be established against the sixth defendant before an ELRO could be made was that the sixth defendant had ‘frequently commenced or conducted vexatious proceedings’.[18] No doubt the very limited number of proceedings relied upon by the plaintiffs in relation to the sixth defendant informed her Honour’s conclusion that there was no basis upon which she would exercise her discretion to make an ELRO separately against the company.[19]
[16]Ibid [77].
[17]Ibid [56].
[18]See s 17(1) of the Act (emphasis added).
[19]Reasons [94].
The judge, having observed that r 1.17 acted as a safeguard against corporate entities commencing or continuing vexatious proceedings, ultimately said that she ‘[did] not see a basis upon which [she] would exercise [her] discretion to make an extended litigation restraint order separately against the company’.[20]
[20]Ibid.
We are not persuaded that a rule which prevents a company from acting in legal proceedings without a solicitor, unless leave is granted, is a matter totally irrelevant to the exercise of the Court’s discretion as to whether an ELRO should be made under the provisions of the Act. The extent to which such a rule might be relevant is capable of debate, and will likely depend upon the facts of the particular case under consideration.
It is not necessary for us, however, to determine the extent of the relevance of r 1.17 in the present case. This is because, when one considers all of the facts relating to the sixth defendant and its conduct, we are not persuaded that it is reasonably arguable that the judge should have made an ELRO on the basis of only two proceedings. It seems to us that, on any view of the facts, the plaintiffs’ application for an ELRO against the sixth defendant could not succeed.
As to the making of an acting in concert order, the judge said that the ability to make such an order was directed at circumstances where a proceeding is commenced by a third party in order to avoid the effect of an existing ELRO.[21] No argument was directed to us suggesting that the judge erred in so concluding. In the circumstances, we are not persuaded that it is reasonably arguable that the judge did so err. Indeed, subject to hearing full argument in another case, we tend to the view that the judge’s construction of ss 34 and 35 of the Act is correct.
[21]Ibid [93].
It follows that leave to appeal with respect to the plaintiffs’ proposed ground 2 must be refused.
Proposed ground 1: the failure to order costs in favour of the plaintiffs
Following the publication of the Reasons, and after hearing submissions about costs, the judge delivered an ex tempore ruling. As recorded in the transcript of the proceeding before her Honour, the ruling was as follows:
In relation to the question of costs, … it strikes me that it is an unusual application, and it’s not an inter partes dispute that is being ruled upon by the court, but rather a request that the court exercise its discretion, as will be clear from my reasons for a protective purposes, not just to protect litigants or individuals, but also to protect the resources of the court.
It also strikes me that in the various pieces of inter partes litigation that are relied on to establish a right under the Vexatious Proceedings Act. There have been provisions for costs orders in those proceedings, and this application is really about the vexatiousness of proceedings that have been and might in future be brought, more than it is about vexatious conduct. Although I appreciate that conduct — the way that proceedings are conducted is relevant on the question of vexatiousness. And for those reasons, where such an application is brought by individuals rather than by the Attorney-General, in my view the appropriate order is simply that there be no order as to costs.
Proposed ground 1 asserts that the judge erred in the exercise of her discretion as to costs in that she:
(a) misconceived the nature of the proceeding;
(b) took into account irrelevant considerations; and
(c)failed to exercise the discretion of the court properly and according to law.
In their written case in this Court, the plaintiffs contend that the judge’s characterisation of the proceeding as not an inter partes dispute was erroneous. In the alternative, they contend that even if her Honour’s characterisation was correct, the judge was wrong to rely on this characterisation to deprive the plaintiffs of their costs.
The plaintiffs also contend that her Honour erred in taking into account that costs orders had been made in earlier proceedings, in determining that the present proceeding was ‘really about the vexatiousness of proceedings that have been and might in future be brought, more than it is about vexatious conduct’, and in relying on the fact that the proceeding was brought by individuals rather than by the Attorney-General.
The plaintiffs contend that the judge’s discretion as to costs miscarried, and that there was no reason why costs should not have followed the event and been awarded in their favour.
The only matters presently before this Court are the parties’ applications for leave to appeal. As we have already noted, those applications fall to be determined on the papers pursuant to the provisions of the Act. The parties were asked by the Registry whether, in the event that this Court made any order granting leave to appeal, the parties were content for us to then determine that appeal on the papers. While the relevant defendants agreed to that course, the plaintiffs did not agree.
In the result, we have come to the conclusion that the plaintiffs’ proposed ground 1 is sufficiently arguable to justify a grant of leave to appeal on that ground. Having come to that conclusion, it is neither necessary nor appropriate for us to say anything further about the merits of the ground prior to the hearing of the appeal. The grant of leave to appeal, however, will be limited to permitting an appeal against the judge’s decision not to order costs against the first three defendants (being the parties against whom the judge made ELROs). There is no basis for any appeal against her Honour’s decision not to order costs against the fourth, fifth and sixth defendants.
Conclusion
We will make orders granting the plaintiffs leave to appeal on ground 1 in relation to the first three defendants, refusing them leave to appeal on ground 2, and refusing the first defendant leave to appeal.
The plaintiffs’ appeal on ground 1 will be listed for a short oral hearing. In the event that any party wishes to make any submissions about the costs of the applications for leave to appeal, they may file and serve written submissions (limited to two pages) within seven days of the publication of these reasons, with any replies (also limited to two pages) to be filed and served within a further seven days. Any dispute about any such costs will be resolved by us on the papers.
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SCHEDULE OF PARTIES – S EAPCI 2021 0005
| ROBERT GEORGE MURCH | First applicant |
| ROBIN KISSEL | Second applicant |
| R G MURCH NOMINEES PTY LTD (ACN 005 424 742) | Third applicant |
| and | |
| PAUL DAVID ANNESLEY | First respondent |
| SHARLENE PHYLLIS ANNESLEY | Second respondent |
| SUSAN ANNESLEY | Third respondent |
| DAVID TATANA (also known as DAVID HOHEPA TATANA) | Fourth respondent |
| WIRIHANA TATANA | Fifth respondent |
| ANNESLEY INVESTMENTS PTY LTD (ACN 123 100 943) | Sixth respondent |
SCHEDULE OF PARTIES – S EAPCI 2021 0013
| PAUL DAVID ANNESLEY | Applicant |
| and | |
| ROBERT GEORGE MURCH | First respondent |
| ROBIN KISSEL | Second respondent |
| R G MURCH NOMINEES PTY LTD (ACN 005 424 742) | Third respondent |
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