Murch v Annesley
[2020] VSC 837
•11 December 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2019 05761
| ROBERT GEORGE MURCH (and others according to schedule) | Plaintiffs |
| v | |
| DAVID PAUL ANNESLEY (and others according to the schedule attached) | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2020 |
DATE OF JUDGMENT: | 11 December 2020 |
CASE MAY BE CITED AS: | Murch & Ors v Annesley & Ors |
MEDIUM NEUTRAL CITATION: | [2020] VSC 837 |
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PRACTICE AND PROCEDURE – Vexatious litigation – Extended litigation restraint order Vexatious Proceedings Act 2014 (Vic) – Acting in concert orders.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D C Harrison | Wilkinson Lawyers |
| For the First Defendant | Self-represented | |
| For the Second and Sixth Defendants | Mr P Annesley | |
| For the Fourth and Fifth Defendants | No appearance |
HER HONOUR:
This is an application by private individuals for Extended Litigation Restraint Orders under the Vexatious Proceedings Act2014 (Vic) (‘the Act’) against six defendants. The circumstances arise from the purchase by the third plaintiff of property which had been owned by the second defendant.
Sharlene Annesley was the registered proprietor of property at 325 Wildwood Rd, Bulla (‘the property’). She had entered an agreement with Wayne Johnstone and his company, Bankseea Pty Ltd (‘Bankseea’) in August 2013 for the sale of the property. ANZ had loaned funds to Johnstone and Bankseea who did not honour the loans. ANZ had commenced litigation in relation to the property in the County Court against Johnstone and Bankseea obtaining judgment in default for possession of the property. It proceeded to sell it as mortgagee in possession. Robert Murch purchased property in September 2018 through his company, R. G. Murch Nominees Pty Ltd (‘Murch Nominees’), from the ANZ bank as mortgagee in possession.
Prior to the sale by ANZ, Paul, Sharlene and Susan Annesley, had been involved in litigation over the property in the Supreme Court, detailed below. They asserted that, because of non-payment of the purchase price by Bankseea and the conduct of Johnstone and ANZ they retained ownership of the property. Since purchase the plaintiffs and others of their friends and family have had a number of proceedings brought against them by some or all of the defendants.
The application is opposed by the first, second, third and sixth defendants who were all represented by Paul Annesley himself. The fourth and fifth defendants did not appear.
Paul Annesley filed an application for a stay of this proceeding pending outstanding criminal charges and made an adjournment application on the same basis. The adjournment or stay application was opposed by the plaintiffs and will be refused. For the reasons that follow I will order that Paul Annesley, Sharlene Annesley and Susan Annesley be subject to ELROs (extended litigation restraint orders). I will not make litigation restraint orders in relation to the fourth, fifth and sixth defendants. I am not satisfied that the Court is able at this time to grant the alternative relief of acting in concert orders under s 35 of the Act.
The plaintiffs rely on six affidavits of their solicitor Ms Wilkinson and the exhibits thereto which detail the various litigation and administrative actions taken regarding the property.[1] Paul Annesley swore an affidavit on 7 May 2020 and affirmed a further affidavit on 14 July 2020. Sharlene Annesley swore an affidavit on 23 July 2020. Those three affidavits and their exhibits are relied on by the first second, third and sixth defendants.
[1]Two affidavits sworn 16 December 2019, as well as 19 March 2020, 7 May 2020, 28 July 2020 and 1 August 2020.
Vexatious Proceedings Act
The Act permits persons other than the Attorney-General[2] to apply for an ELRO under s 16. A person against whom a vexatious proceeding has been commenced or conducted may make an application pursuant to s 16(1)(b) and a person with sufficient interest in the matter may do so under s 16(1)(c). In the case of a person applying under either sub-section(b) or (c) leave from the jurisdiction in which the order is sought is required.[3]
[2]The Attorney General applies under s 16(1)(a) of the Act.
[3]Section 16(2) of the Act.
To obtain leave the plaintiffs must satisfy the Court that they come within s 16(1)(b) or (c) and they must satisfy the court that there is merit in the application and that the application is not an abuse of process.
I will return to an analysis of the requirement for leave when I deal with the substance of the application.
Under the Act, an application may be made to obtain an ELRO. An ELRO may be made under s 17(1) where a Court or VCAT is satisfied:
that a person has frequently commenced or conducted vexatious proceedings-
(a) against a person or other entity; or
(b) in relation to a matter.
If leave is given, the plaintiffs apply for orders against five persons and a company. Section 17(2) provides:
(2)In determining whether it is satisfied of the matters specified in subsection (1), a Court or VCAT may take into account any matter it considers relevant, including but not limited to any of the following –
(a)a proceeding commenced or conducted by the person, or an entity controlled by the person, in any Australian court or tribunal;
(b)the existence of an order made by an Australian court or tribunal against the person, or an entity controlled by the person, including –
(i) a litigation restraint order; or
(ii) an acting in concert order; or
(iii) a vexatious proceeding order;
(c)any other matter relating to the way in which the person conducts or has conducted litigation.
A vexatious proceeding is defined to include the following:
(a) a proceeding that is an abuse of 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;[4]
[4]Section 3 of the Act.
The purpose of limitation of access to a court for persons engaged in vexatious proceedings and the exercise of the power to restrict access was outlined by Perram J in Official Trustee in Bankruptcy v Gargan (No 2).[5] The relevant principles are summarised:
[5][2009] FCA 398 (Perram J).
(1)Making an order is an extreme remedy depriving a person of their ordinary right of recourse to court to enforce the law;
(2)the purpose is not to punish litigants but to shield the public and the court itself from the burden and inconvenience of repetitious and baseless proceedings;
(3)The power is not enlivened by a single vexatious claim and its purpose not to respond to lapses of judgment, even serious lapses. It is conditional upon the frequent commencement of proceedings that are characterised as vexatious;
(4)The qualities of vexation encompass the lack of reasonable grounds for proceedings and the manner in which they are conducted;
(5)The lack of reasonable grounds is a different question to the identification of legal merit. As Perram J said it is important to ‘distinguish the difficult from the ridiculous and the unlikely from the hopeless’;
(6)Unreasonable grounds may be demonstrated in a plethora of ways but there is often contained within the material a failure or refusal to understand the principle of finality in litigation;
(7)Repetition driven by habit may be symptomatic of an inability to engage in more useful behaviour and demonstrates a capacity to endure failure beyond the point of a rational person;
(8)The lack of reasonable grounds and the frequency of vexatious proceedings are determined objectively not by the genuineness of a litigant’s belief in the correctness of his or her position;
(9)The notion of a ‘proceeding’ is broad encompassing both substantive proceedings and collateral applications within them as well as appeals;
(10)Other applications, made before bodies that are not Courts, while not directly pertinent to the existence of the power to make an order, may shed light on the vexatious nature of proceedings before the court and be relevant to whether the exercise of the power to make the order, once enlivened should, as a matter of discretion be exercised.
The phrase ‘habitual and persistent’ has been replaced by the statutory language of ‘frequently’. The analysis of whether each of the plaintiffs ‘have frequently commenced or conducted vexatious proceedings’ within the meaning of s 17(1) involves a number of steps. It requires identification of those proceedings which are said to be vexatious. It is then necessary to determine whether those proceedings do meet the statutory definition. The section requires that proceedings that meet this definition have been ‘frequently’ commenced or conducted where an extended litigation restraint order is sought. This exercise must be undertaken in respect of each of the six persons in respect of whom an order is sought.
In the alternative the plaintiffs seek orders that the second to sixth defendants be subject to an acting in concert order on the basis of an ELRO being made against the first defendant. Section 34 provides:
Application for acting in concert order
Any of the following persons may apply to a Court or VCAT for an order against a person who is acting in concert with a person who is subject to a litigation restraint order.
A Court may make such an order if it is satisfied of the matters set out in section 35. Section 35 provides:
Court or VCAT may make acting in concert order
A court may make an order against a person who is acting in concert with a person who is subject to a litigation restraint order if satisfied that –
(a)the first mentioned person has made an interlocutory application or commenced a proceeding, and
(b)the interlocutory application or proceeding, if made or commenced by the person who is subject to the litigation restraint order, would contravene the terms of that litigation restraint order.
Finally the relief, whether an ELRO or an acting in concert order, is discretionary. The discretion is broad but exercised for the protective purpose; to protect other litigants and the disruption of court business caused by the multiplicity of proceedings and the manner in which they are conducted.
The orders sought by the plaintiffs seek an ELRO against all defendants limited to the commencement or continuation of proceedings against any plaintiff, against any immediate family of the first or second plaintiff or in respect of specified properties owned by the third plaintiff.
History of Litigation involving the property
Prior to the purchase by Murch Nominees
As at September 2013, Sharlene Annesley was the registered proprietor of the property and a second property at Green St, Bulla. She entered into contracts to sell both properties to Wayne Johnstone and Bankseea. When settlement of the property with Bankseea occurred the loan funds only covered 65% or 70% of the purchase price of the property. Sharlene Annesley was not paid the balance of the purchase price at settlement. She asserts that she has a vendor’s lien over the property. She also asserts in her affidavit of 23 July 2020 that it is not her signature on the Transfer of Land document dated 26 August 2013 nor has the transfer document been properly witnessed.[6]
[6]Affidavit of Sharlene Annesley dated 23 July 2020, Exhibits 1 and 2.
In December 2013 ANZ issued notices of default in respect of both loans. At that time Paul Annesley lodged a caveat over the property claiming an interest charge in favour of Sharlene Annesley (‘the 2013 caveat’). ANZ applied for and obtained summary judgment against Wayne Johnstone and Bankseea including judgment for possession of the property against Bankseea on 16 May 2014 (the ‘2014 summary judgment’)[7]. ANZ asserted that Wayne Johnstone had made false and misleading representations to the bank in the loan application by providing a false identity.[8]
[7]Granted by Cosgrave J.
[8]These events are taken from County Court Victoria, Marks J Judgment (ANZ Banking Group Ltd v Bankseea Pty Ltd & Anor).
Despite the order for possession in favour of ANZ, Paul and Sharlene Annesley remained at the property.
The following litigation ensued:
(a)In October 2015 ANZ issued an originating motion and summons in the County Court seeking removal of the caveat was lodged in December 2013. That application was heard by Cosgrave J on 29 October 2015. On 6 November 2015, Cosgrave J ordered removal of the 2013 caveat.
(b)The day prior to the caveat hearing before Cosgrave J, Sharlene Annesley commenced Supreme Court proceedings against ANZ and others seeking damages and other relief including that the bank be stopped from selling the property, and permitting the registration of her mortgage against title. The statement of claim was struck out with leave to re-plead and serve an amended statement of claim. A re-pleaded statement of claim was also struck out in March 2016. No further action was taken in that proceeding.
(c)The same day as the caveat hearing before Cosgrave J, three further caveats were lodged each claiming a freehold interest pursuant to an agreement between each of Sharlene Annesley, Paul Annesley and Carlton Ross & Associates on the one hand and Bankseea on the other hand. Each agreement was identified by a different date (collectively the ‘2015 caveats’). In December 2015 ANZ commenced Supreme Court proceeding to remove the 2015 caveats. Riordan J ordered their removal on 17 December 2015 and subsequently made orders restraining the Registrar of Titles from recording any further caveats on the property. [9]
(d)Then in July 2016 Paul and Sharlene Annesley made application in the County Court to set aside the 2014 summary judgment and to have the bank’s underlying proceeding dismissed or struck out. They alleged that they were a victim of a fraud by Wayne Johnstone and his company Bankseea. They also alleged that ANZ bank was in effect complicit in the fraud as it had had previous dealings with Wayne Johnstone and knew of his false identity. Paul Annesley was self-represented and represented Sharlene in the summons which was heard by Marks J in August 2017.
[9]ANZ v Annesley [2015] VSC 781 (Riordan J).
Although not parties to the proceeding where summary judgment was granted they described themselves as ‘aggrieved parties’ and asserted that Sharlene Annesley did not sign the contracts of sale.
The application to set aside the summary judgment failed on the basis that Paul Annesley had no standing to bring the application. The Court said that while Sharlene Annesley, as the original owner of the property, may have a real interest in the outcome of the action it determined that she was not a person with a required interest, saying:
Ms Annesley does not assert as against another purchaser (in whose favour judgment has been entered) that she has purchased Wildwood Rd. The evidence given both by her and Mr Annesley is that she had sold Wildwood Rd to Bankseea, and had been paid 65% or 70% for it. She cannot defeat the bank’s indefeasible title (as discussed below), and even if she could, she would have to account to the bank for the benefit she has obtained by the earlier mortgage being paid out and the payment to her.[10]
[10]ANZ Banking Group Ltd v Bankseea Pty Ltd & Anor, Marks J [201] having discussed the nature of a sufficient interest in the outcome as discussed in Delmo v Merrigal Pty Ltd (Murphy J), unreported.
ANZ then sold the property to Murch Nominees. Settlement occurred on 14 September 2018 and the third plaintiff company was registered on title on 8 October 2018.
Litigation involving the Plaintiffs since the purchase of the property
On 15 September 2018, Paul Annesley told Robert Murch that Murch was complicit in fraud with the ANZ and was the receiver of stolen property. On 22 September 2018, following settlement the first and second plaintiffs attended the property. They found the gate blocked and a group of persons present. Having cut the fence to gain access they then drove around the property which is 180 acres. It was alleged that their vehicle was rammed and they were then pursued by the other vehicle which was driven by Paul Annesley until they left the property.
As a result of the events on 22 September at the property, the police applied for and obtained ex parte Personal Safety Intervention Orders (the original PSIOs) on behalf of both Robert Murch and Robin Kissel against Paul Annesley.
Litigation for Personal Safety Intervention Orders (PSIO)
Paul Annesley
In total thirteen intervention orders under the Personal Safety Intervention Orders Act 2010 (Vic) have been sought. Within those applications there have been multiple applications for variations, re-hearings and appeals. It is helpful to set out a table summarising the applications and outcomes.
PSIO applied for by Respondent Affected persons Magistrates Court outcome County Court appeal filed 1. Vic Police
23/9/18
Paul Annesley Robert Murch PSIO 2 years from 20 March 2019 21 March 2019 2. Vic Police 23/9/18 Paul Annesley Robin Kissel PSIO 2 years from 20 March 2019 21 March 2019 3. Vic Police
14/12/2018
Sharlene Annesley Robert Murch PSIO 1 year from 15 January 2019 5 February 2019 4. Vic Police
14/12/2018
Wirihana Tatana Robert Murch PSIO 1 year from 15 January 2019 5 February 2019 5. Paul Annesley
(variation)
9/10/2018
Robert Murch Paul Annesley
Struck out. No appearance 21 March 2019 6. Paul Annesley
25/1/2019
Robin Kissel Paul Annesley Struck out. No appearance. 21 March 2019 7. Paul Annesley
25/1/2019
Brett Kissel Paul Annesley Struck out. No appearance. 21 March 2019 8. Susan Annesley
31/1/2019
Robert Murchl Susan Annesley Variation application refused at rehearing
Struck out at final hearing. Susan Annesley refused to prosecute.
Appeal against refusal of variation withdrawn
26 February 2020
9. Sharlene Annesley
4/4/2019
Robert Murch Sharlene Annesley
Application for a PSIO struck out. 17 February 2020 10. Susan Annesley
2/5/2019
Robin Kissel Susan Annesley
Struck out at final hearing. Susan Annesley refused to prosecute. 26 February 2020 11. Paul Annesley
21/5/2019 (application to vary)
Paul Annesley Robert Murch No change in circumstances to vary PSIO 15 August 2019 (appeal of the decision not to grant a re-hearing) 12. Paul Annesley
21/5/2019 (application to vary)
Paul Annesley
Robin Kissel No change in circumstances to vary PSIO 15 August 2019
(appeal of the decision not to grant a re-hearing)
13. Sharlene Annesley
(costs appeal – see also #9)
Robert Murch Sharlene Annesley Sharlene Annesley’s Application for a PSIO struck out as it was refused.
Murch applied for costs. Refused.
20 February 2020
Refusal to make an order for costs
The police successfully sought to vary the original PSIOs to exclude Paul Annesley from the property and permit Murch to attend.
The following day Paul Annesley made an ex parte application seeking variation of the three orders back to their original conditions which would have the effect of permitting him access to the property. This was refused. Paul Annesley appealed.
Later on the day that the variation was refused, after hearing some further submissions, the Magistrate in fact granted leave to apply for the variation and listed the hearing for that on a future date. The appeals that were filed were abandoned but without notice to Murch or Kissel whose solicitor attended the County Court on the mention date only to be advised by court staff of the abandonment.
The variation of the three orders sought by Paul Annesley was listed for a contested hearing. Paul Annesley did not appear and the applications for variations were struck out. Despite his non-appearance Paul Annesley filed appeals against the orders later that day which were eventually struck out.
In January 2019 Paul Annesley also applied ex parte for two PSIO against Robin Kissel and her son respectively which were granted.
When a directions hearing for the final intervention orders was listed on 20 March 2019, five applications were listed: the two police applications and the three applications commenced by Paul Annesley. Paul Annesley did not attend the hearing and his applications were struck out. The police applications were finalised with the granting of intervention orders for a period of two years from 20 March 2019.
The day after they were made, Paul Annesley appealed the five orders. Those appeals were listed for hearing over 5 days in the County Court ultimately with eight other appeals outlined below on 9 June 2020 before Judge Coish.
Despite appeals being filed, Paul Annesley applied for a variation of the final orders made against him on 20 March 2019. Having heard from him, the applications were dismissed as no changed circumstances had been shown. In June 2019 Paul Annesley filed ex parte applications for leave for a re-hearing in relation to this refusal to vary the final orders. Both parties appeared at the hearing in August 2019 and on this occasion Paul Annesley was legally represented. The application was refused. Paul Annesley appealed. Those two appeals were listed with the other five County Court appeals set out at [35].
In May 2019 Paul Annesley made a further ex parte application for a restraining order against Mr Lobb, a friend of Robin Kissel’s son who had assisted with removing fencing at the property on one occasion in December 2018. An interim order was granted ex parte. On return of the application for directions Paul Annesley did not appear and the matter was struck out. On 26 July 2019 an application was made for a re-hearing of the matter. At the application Annesley gave evidence that he had been unwell on 19 June. The application was in fact listed on 19 July. The application for a re-hearing was refused.
Sharlene Annesley & Wirihana Tatana
In December 2018 the police applied for intervention orders against Sharlene Annesley and Wirihana Tatana for the protection of Robert Murch. Interim orders were made and were appealed but, as appeals against interim orders are prohibited, the appeals were struck out. In January 2019 final orders were made against them both. Sharlene Annesley and Wirihana Tatana appealed the final orders on 5 February 2019. Those appeals were listed for hearing with the other seven matters on 9 June 2020 before Judge Coish.
On 4 April 2019 Sharlene Annesley made an ex parte application for a PSIO against Robert Murch and was granted an interim order for both personal protection and a claim against land. At a contested hearing on 17 February 2020 (which was heard with applications filed by Susan detailed below), Sharlene gave evidence on her own behalf and was self-represented. The Magistrate refused her application for final order. An appeal was immediately filed the same day. It was listed with the other nine in the County Court before Judge Coish.
On 9 April 2019 Wirihana Tatana filed an application for variation of the restraining order made against him. Leave was refused as no new facts and circumstances were shown. Wirihana Tatana appealed and this was listed with the other ten appeals.
Susan Annesley
On 31 January 2019 Susan Annesley made an ex parte application for a PSIO against Robert Murch. The application was granted on the basis of Susan Annesley’s evidence that the property was owned by her brother. On 4 April 2019 she applied ex parte for a variation of that order to exclude Murch from the property. At that time she gave evidence that her brother Paul and his wife still owned the property. The variation was granted. Then on 2 May 2019 at an application by Murch for a re-hearing, a copy of the Register of Title was provided and the variation was removed. Susan Annesley appealed this decision but then withdrew the appeal at an appeal mention.
On 2 May 2019 Susan Annesley made another ex parte application, this time against Robin Kissel. The application was made after Murch, Kissel and their solicitor had left court following the re-hearing outlined in the previous paragraph. An interim order was granted upon evidence given by Susan Annesley that her brother had owned the property since 2007 and there had never been a warrant of possession.
The applications by Susan Annesley against Murch and Kissel were listed for a contested hearing on 17 February 2020. On that day Susan Annesley sought an adjournment on the basis of ill health. When the adjournment was refused and the court advised that breaks as required would be provided, Susan left the court and refused to prosecute her claims. The applications were struck out. The following week Susan filed an appeal against the final orders. Those two appeals were listed with the others on 9 June 2020, bringing the number of appeals by Annesley parties to twelve.
Murch filed one County Court appeal which appealed a costs order made in February 2020 when he was unsuccessful in an application for costs.
County Court Appeals
In these numerous applications for PSIO, the various defendants have only had success on an initial ex parte basis. That success has been due to the advice given to the relevant court that one or other of the Annesley’s was the owner or title holder and that Murch had no interest in the property. In every case, when documentation as to ownership was produced the orders were set aside. In other matters proceedings were struck out through non-attendance. In none of the many appeals that were commenced did the Annesley parties obtain the relief that they sought.
The defendants were unrepresented in their County Court appeals. Paul Annesley appeared for Sharlene Annesley in matters where she was the appellant. Susan Annesley appeared on her own behalf on the second day of trial but said that she did not wish to give evidence. She did make submissions. Paul Annesley gave evidence. His Honour directed that no cross examination questions were permitted that would tend to incriminate him given the pending criminal charges he was facing (detailed below).
In dismissing all Annesley appeals Judge Coish quoted from the Affidavit of Robert Murch sworn 3 May 2020:
For completeness I think it is important to note that since October 2018 Paul Annesley and his associates have filed 42 court proceedings and administrative actions against me, my friends and my family. Most of these have been struck out or permanently stayed. These include (a) intervention order applications; (b) intervention order variations; (c) intervention order re-hearings; (d) intervention order appeals; (e) VCAT applications under the Residential Tenancies Act; (f) VCAT applications under the Civil Claims List; (g) Supreme Court injunctions; (h) a private citizen prosecution; (i) caveats and (j) filing a Form 504 with ASIC to take control of my company.
When giving reasons in the County Court appeals his Honour made the following findings:
I find that Paul Annesley, the named respondent, has committed prohibited behaviour against the affected persons, Murch and Kissel. I find this was made up of a combination of factors described in the incidents I have referred to together with his misuse of the legal system. I find this combination of factors constitutes, at the very least, harassment as defined[11].
In relation to the costs appeal by Murch he awarded costs on the basis that:
I am satisfied the making of all these applications by the Annesley’s was vexatious, frivolous and in bad faith.
[11]Exhibit JJW-79 to fifth affidavit of Jessica Joy Wilkinson dated 28 July 2020, Transcript of Proceedings ‘In the matter of Appeal from Paul Annesley & Ors v Victoria Police & Ors’, 11 June 2020, Judge Coish, 10.
I am satisfied that the conduct in relation to the PSIO litigation itself meets the characterisation of the Act in that the applications made by the various defendants were pursued without reasonable grounds and were commenced and/or conducted in a way to achieve a wrongful purpose.
Caveats and Injunction Litigation
Since the purchase by Murch Nominees, further caveats have been lodged over the property and attempts made to injunct others from dealing with the property.
On the 21 December 2018 an application was filed in the Practice Court, returnable on 24 December before Cavanough J seeking urgent injunctive relief prohibiting Robert Murch from attending the property or conducting work there. The application was not pressed as urgent and Paul and Sharlene Annesley accepted that the application could be dealt with during the ordinary sitting terms. When the matter next came on before Associate Justice Derham orders were made timetabling the filing of documentation, including proper basis certification and overarching obligation certification.
When Paul and Sharlene Annesley failed to comply with these orders the proceeding was permanently stayed. Associate Justice Derham noted in the orders of 26 February 2019 that ‘the relief claimed in relation to the property at 325 Wildwood Rd, Bulla, Victoria, is without foundation’ and “This constitutes continuation of proceedings in wilful disregard of known facts or clearly established law and conduct which causes loss of time to the Court and to the defendants.”
On 19 March 2019 Annesley Investments Pty Ltd lodged a caveat over the property which was signed by Paul Annesley in his capacity as Director. The company, Annesley Investments was identified as the registered proprietor with a claim as the ‘unpaid vendor under a contract of sale’.
On 5 June 2019 David Tatana lodged a caveat over the property stating as ground that he had a lease with Murch Nominees.
Murch Nominees has made application to remove those caveats pursuant to s 90(3) of the Transfer of Land Act1958 (Vic). At the time of hearing before me the matter was awaiting a hearing date. On 26 October 2020 Associate Justice Daly made orders, inter alia removing the caveats.[12]
[12]S ECI 2019 05845 R.G. Murch Nominees Pty Ltd & Anor v Paul David Annesley & Ors.
ASIC filing and Litigation
In October 2018 Annesley Investments Pty Ltd filed with ASIC a Corporations Act 2001 (Cth) Form 504 ‘Notification that a person has been appointed controller/entered into possession etc. The document was signed by Paul Annesley as one of the Directors of the company. Annesley Investments was listed on the Personal Property Security Register (PPSR) as a ‘secured party’. According to the document Annesley Investments appointed Paul and Sharlene Annesley to jointly take control of the property in order to enforce a security interest that their company held over the property. The effect of this filing was to place Murch Nominees into external administration and permitted the Directors of Annesley Investments to act as controllers of Murch Nominees.
As a result Murch Nominees commenced Supreme Court proceedings to remove Paul and Sharlene Annesley as controllers of the company. The company obtained a suite of urgent injunctive relief restraining the defendants there from acting on the documents that had been lodged. They also sought injunctive relief to prevent the three Annesley defendants lodging any caveats over properties of which Murch Nominees is the registered proprietor. In February 2019 Sloss J restrained Paul and Sharlene Annesley from acting as controllers. In granting final relief her Honour found that there was no basis for the security interest alleged to have been granted by Murch Nominees in favour of Annesley Investments and orders should be made removing the PPSR registration. Absent then any foundation for the ‘controller appointment’ an order was made removing it from the ASIC register.
In conducting those proceedings, despite advising the court of the existence of a document that formed the basis for the security interest alleged to exist, no document was produced and the defendants filed no affidavit material or submissions in the proceeding. Her Honour declined to grant relief restraining the defendants from lodging further caveats as it had not been shown that they had an imminent intent to do so. Her Honour’s reasons were delivered on 26 February 2019. As can be seen, less than one month later Paul Annesley did in fact lodge a caveat.[13]
[13]See these reasons [53], a caveat was lodged on 19 March 2019.
VCAT Litigation
David Tatana made an ex parte application to VCAT under the Residential Tenancies Act1997 (Vic) in January 2019 claiming to be a tenant at the property. He sought an injunction preventing his landlord, whom Tatana identified as Murch Nominees represented by Paul Annesley, from evicting him and preventing the Victoria Police from obtaining any order excluding him from the land. Interim orders were made preventing the landlord from attempting to take possession of the property. On the return date, when Robert Murch and David Tatana (but not Paul Annesley) appeared and gave evidence, the matter was struck out.
On 26 June 2019 Paul Annesley sought a re-hearing of David Tatana’s application, claiming he had only learnt of the proceeding subsequent to it being struck out. The application for a re-hearing was granted.
On 2 September David Tatana made a further ex-parte application in the Residential Tenancies List seeking restraining orders against Robert Murch. This and the other matters in the Residential Tenancies List were heard together. At hearing David Tatana gave evidence of and provided a copy of a tenancy agreement between himself and Paul Annesley dated 7 February 2015. This was, self-evidently, after ANZ had obtained an order for possession. The claims were struck out for want of jurisdiction.
On 25 June 2019 Annesley Investments Pty Ltd filed an application in the Civil Claims List against Robert Murch and ANZ Bank. It alleged misleading and deceptive conduct in the provision of financial services and sought injunctive relief and damages of $400,000. When the claim was listed for hearing in November 2019 Counsel for Paul Annesley sought an adjournment only having been briefed the evening before. An adjournment over the weekend only was granted. On the Monday, having heard submissions the matter was struck out and costs awarded against Paul Annesley.
Criminal Prosecutions
In October 2018 David Tatana, the fourth defendant commenced a private criminal prosecution against Robert Murch. The prosecution arose out of the events of 22 September 2018 alleging that Murch cut the lock and cut the fence to gain access to the property. The DPP took over conduct of the proceeding and discontinued it. Costs were ordered against David Tatana.
As alluded to above, there are pending criminal charges against Paul Annesley in respect of the events of 22 September 2018. They were due to be heard before a jury in November 2020.
Sharlene Annesley is facing charges of trespass in relation to incidents on 12 and 14 December 2018 at the property. On one charge the matter was to be resolved by Diversion but Sharlene Annesley later refused diversion. The matter is yet to be heard. On that charge she has refused summary jurisdiction. On the other charge she has filed an appeal against her conviction and sentence which is to be heard.
Susan Annesley has been charged with resisting police in an incident on 14 December 2018. Susan did not have legal representation at the hearing but was represented by her brother Paul. She was convicted and fined. She has appealed against the conviction.
Wirihana Tatana is charged with various offences arising from an incident at the property on 14 December 2019. Summary jurisdiction was refused and the charges are listed for trial in 2021.
David Tatana is facing charges of trespassing, contravening an IVO and threats to inflict serious injury arising from an incident at the property on 15 January 2019.
Application to stay the proceeding
I mention the pending criminal prosecutions because Paul Annesley sought an adjournment or a stay of this application until the conclusion of the outstanding criminal proceedings against himself, Sharlene and Susan Annesley. There has been nothing demonstrated by the defendants to show that the outcome of this application will have any bearing on the criminal proceedings on foot.
Paul Annesley submitted that the criminal matters are as a result of unlawful actions by Victoria Police and ANZ bank. He submits that the police are acting outside power intervening in a civil property dispute. Fundamentally his opposition to the criminal charges, like the many civil actions he has commenced, is based upon his intractable belief that he (or Sharlene) remain proprietors of the property.
Any litigation restraint order that is made will not impact upon his, or others ability to defend the criminal charges. The application to adjourn or stay this proceeding until conclusion of the criminal charges is refused.
Leave to apply for ELRO
As set out earlier, as the plaintiffs are private citizens they require leave to make this application. I am satisfied that the first and second plaintiffs are persons to whom s 16(1)(b) applies in that they are persons against whom a vexatious proceeding has been commenced. I am satisfied that Murch Nominees meets the definition of a person with a sufficient interest in the matter as the registered proprietor of the property as within s 16(1)(c).
Section 16(3) requires them to show that the application has merit and would not be an abuse of process. The volume of litigation commenced by the defendants over the period since October 2018 across the Magistrates’, County and Supreme Courts and at VCAT and which shows every sign of continuing is sufficient in my view to demonstrate merit in the application sufficient for a grant of leave.
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.
I grant leave for the application to be made in respect of all six defendants.
Should an ELRO be made?
Although collectively the defendants have commenced a large number of proceedings, and at times many applications within those proceedings, the legislation requires consideration of the conduct of each person individually against whom an order is sought. In respect of each person the court must be satisfied that they have ‘frequently commenced or conducted vexatious proceedings’.
In respect of each defendant the plaintiff’s rely on the following:
(a)Paul Annesley – 26 proceedings
(b)Sharlene Annesley – 5 proceedings
(c)Susan Annesley – 6 proceedings
(d)David and Wirihana Tatana – 3 proceedings each
(e)Annesley Investments Pty Ltd – 2 proceedings.
(f)In addition the administrative action of lodging caveats (by David Tatana and Annesley Investments Pty Ltd), and of filing the ASIC form 504 (Annesley Investments Pty Ltd) are also relied on.
In counting the proceedings the plaintiffs count each application within a proceeding separately.
Paul Annesley
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.[14] The application was made without reasonable grounds and for a collateral purpose.
[14]First Affidavit of Jessica Joy Wilkinson sworn 16 December 2019 [45] and Exhibit to affidavit ‘JJW 52’.
Paul Annesley submitted I should refuse this application as no valid Warrant of Possession was ever granted to ANZ bank. This view mistakenly believes that in this application I can and should look at the merits of the ANZ possession. That matter was dealt with by Marks J. That is not the contest before me.
Sharlene Annesley
I am also satisfied that Sharlene Annesley has frequently commenced or conducted vexatious proceedings. Those proceedings can be identified as:
(a)the urgent injunction filed on 21 December 2018 and brought before Cavanough J but which was then struck out, in which Sharlene Annesley was the second plaintiff.
(b)The filing of an appeal against the interim intervention order made against her on 14 December 2018, which was dismissed and then the appeal against the final order made against her which was dismissed in the circumstances commented upon by Judge Coish.
(c)An ex parte application for a PSIO against Murch in April 2019 where she gave sworn evidence that she was currently listed on the certificate of title and that there was a Supreme Court action then on foot.[15] At the final hearing of her application when giving evidence she answered ‘no comment’ when it was put to her that she had lied on oath at the ex parte application about ownership of the property.[16] She nevertheless filed an appeal against the refusal of her application.
[15]First Affidavit of Jessica Joy Wilkinson sworn 16 December 2019 [32].
[16]Third Affidavit of Jessica Joy Wilkinson sworn 19 March 2020 [8c].
Additionally I have had regard to the earlier proceedings which inform my consideration. I do not consider that the application to set aside summary judgment which was heard by Marks J to have been vexatious. Nor could it be said that the earlier Supreme Court proceeding to restrain ANZ from selling the property and seeking damages which she brought in 2015 was vexatious. At the same time caveats had been lodged by her and ANZ took proceedings to remove those caveats. In his reasons Riordan J said of what was even then described as having a long history:
I consider that the history of this matter, as set out above, demonstrates that Mr and Mrs Annesley firmly believe that they have been wrongly dealt with by the ANZ and that they are entitled to continue to interfere with the sale of the Wildwood Rd property.[17]
[17]ANZ v ANNESLEY [2015] VSC 781 [22] (Riordan J).
The events that have followed since that time have fulfilled that prediction. Although the earlier proceedings were not instituted against Murch, they were in relation to the property. I include the 2015 caveat removal proceeding conducted by the second plaintiff as one conducted in a vexatious manner by Sharlene Annesley.
Susan Annesley
Susan Annesley, the third defendant has commenced applications under the PSIO Act against Robert Murch and Robin Kissel. The applications were made ex parte and were successful on that basis. Ex parte application for variation was used to obtain an order restraining Robert Murch from attending the property. This was reversed on an inter-partes hearing when the title was produced. The second intervention application against Robin Kissel was made immediately after the court removed any prohibition upon Murch attending the property. It is impossible not to infer that the purpose of lodging such an application at that time was to harass or annoy or to cause detriment to Murch and Kissel.
Susan Annesley refused to participate in the final hearing of her applications but nevertheless appealed and then failed to attend but authorised her brother Paul to represent her in the appeal. As such both the nature of the proceeding and the manner in which she has conducted herself in those proceedings meet the definition of a vexatious proceeding in that they were commenced without reasonable grounds and were commenced to harass or annoy or to cause detriment. Although the frequency of proceedings commenced by Susan is less than either Paul or Sharlene Annesley, I am satisfied in all the circumstances that they have been commenced with sufficient frequency in the period between December 2018 and May 2019 that I can be satisfied that it is appropriate to make an order under s 17(1)(a) against her.
David & Wirihana Tatana
I am not satisfied however that the three proceedings commenced by each of David Tatana and Wirihana Tatana in relation to the property have the requisite frequency. I have no doubt that they otherwise meet the definition of vexatious proceedings. The NSW Court of Appeal had cause to consider the term frequently in the equivalent NSW legislation. Simpson JA said this:
What is meant by “frequently” has been the subject of consideration of this Court. In Potier Leeming JA (with whom Basten and Meagher JJA agreed) said:
“114. The power to make an order under the [VP Act] is conditioned upon a court being satisfied that the person has ‘frequently’ instituted or conducted vexatious proceedings in Australia. The meaning of a word like ‘frequently’ turns very much on its context; that is no different from many other protean words (such as ‘adversely affect’ and ‘mistake’)…It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that ‘frequently’ is a relatively low threshold.
115. First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of ‘habitually and persistently’ was deliberate, and plainly lowered the threshold conditions.
116. Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the 9 applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
117. I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of ‘frequently’. This illustrates the fact that ‘[t]he issue posed by the statutory term ‘frequently’ is not to be assessed merely by an arithmetic calculation’: Viavattene at [49].
118. Each of those considerations favour ‘frequently’ being a relatively low threshold.” (internal citations omitted)[18]
[18]Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (‘Zepinic’) [16].
In that case a husband and wife had instituted a number of proceedings that were held to be vexatious. Their adult daughter was a plaintiff in two proceedings, which were both described as ‘a particularly egregious example of a vexatious proceeding’. Simpson JA said:
Instituting two proceedings would not, ordinarily, establish the frequency that is necessary for an order under s 8(7) of the VP Act where s 8(1)(a) is the foundation of the order. Section 8(1) states the foundation or premise that must be established before such an order can be made. The premise stated in s 8(1)(a) is that the person against whom the order is sought has “frequently” instituted or conducted vexatious proceedings in Australia. Nina Zepinic does not come within that description.[19]
[19]Ibid [197].
In my view the proceedings commenced by David and Wirihana Tatana do not demonstrate the repetition or a refusal to understand the finality of litigation such that their proceedings, although on their face hopeless, would amount to frequently vexatious proceedings.
I therefore consider whether the alternative relief of an acting in concert order as sought is appropriate. There is no requirement in the legislation for frequency when making an acting in concert order. It is clear that such an order can be applied for when a single proceeding is commenced or interlocutory application is made.
However, the statue provides that such an order may be made where the person is acting in concert with someone who is subject to a litigation restraint order. Even if I accept that each of David and Wirihana Tatana acted in concert with Paul Annesley or other of the Annesley defendants, none of the parties were the subject of a litigation restraint order at the time the relevant proceedings were commenced or conducted.
The ability to make an acting in concert order is directed at circumstances where a proceeding is commenced by a third party in order to avoid the effect of an existing litigation restraint order. It cannot be applied to prevent prospective litigation not yet commenced.
Annesley Investments Pty Ltd
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.[20] 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.
[20]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).
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.
SCHEDULE OF PARTIES
| ROBERT GEORGE MURCH | First Plaintiff |
| ROBIN KISSEL | Second Plaintiff |
| R.G. MURCH NOMINEES PTY LTD (ACN 005 4343 742) | Third Plaintiff |
| - and - | |
| PAUL DAVID ANNESLEY | First Defendant |
| SHARLENE PHYLLIS ANNESLEY | Second Defendant |
| SUSAN ANNESLEY | Third Defendant |
| DAVID TATANA (also known as DAVID HOHEPA TATANA) | Fourth Defendant |
| WIRIHANA TATANA | Fifth Defendant |
| ANNESLEY INVESTMENTS PTY LTD (ACN 123 100 943) | Sixth Defendant |
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