Proietti, In the matter of an application for leave to issue or file

[2023] HCATrans 19

[2023] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S163 of 2022

In the matter of -

an application by PHILIP PROIETTI for leave to issue or file

JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 FEBRUARY 2023, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   By application filed on 22 December 2022, the applicant seeks leave to issue or file an application for a stay of orders.  For the reasons that I now publish, I would dismiss the application.  The orders are:

1.The application filed on 22 December 2022 for leave to issue or file be dismissed without listing for hearing pursuant to Rule 13.03.1 of the High Court Rules.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

These reasons explain why I consider that I should not grant the applicant, Mr Proietti, leave to issue or file a further application seeking a stay of orders pending the determination of his application for special leave to appeal.

Mr Proietti’s first application for a stay of orders was dismissed by Gageler J on 14 December 2022.  In his reasons, Gageler J explained that:

(1)Mr Proietti sought special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales in Proietti v Proietti [2022] NSWCA 234 dismissing his appeal from a judgment of Kunc J in Proietti v Proietti [2022] NSWSC 875. The judgment of Kunc J gave rise to final orders which included an order under s 66G of the Conveyancing Act1919 (NSW) for the appointment of trustees for the sale of property of which Mr Proietti is a registered proprietor along with his brother;

(2)the Court of Appeal dismissed Mr Proietti’s appeal against the orders of Kunc J but stayed its order for 28 days.  Mr Proietti applied for a further stay which Macfarlan JA dismissed in Proietti v Proietti [2022] NSWCA 268. In so doing Macfarlan JA concluded that Mr Proietti’s arguments that he would be granted special leave to appeal lacked merit;

(3)the power to grant a stay to preserve the subject-matter of the litigation pending an application for special leave to appeal requires “exceptional circumstances” including substantial prospects of the grant of special leave to appeal:  Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; and

(4)Mr Proietti’s special leave application does not have realistic prospects of success.

Mr Proietti sought to file a second application for a stay dated 19 December 2022. On 21 December 2022, Gleeson J directed that, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), “the Registrar refuse to issue or file [the second application for a stay] without the leave of a Justice first had and obtained by the party seeking to issue or file it”. On 22 December 2022, Mr Proietti filed the present application for leave.

Apart from alleging that Gageler J’s dismissal of his first application for a stay of orders involved procedural error, Mr Proietti does not identify any relevant circumstance that has changed.  Mr Proietti’s application for special leave continues to have poor prospects of success.  Accordingly, there is no basis to grant a further stay of the orders of Kunc J for the appointment of a trustee for the sale of the property.  On this basis, it would be futile to grant Mr Proietti leave to file the second application for a stay of orders.

The orders I make are that the application filed on 22 December 2022 for leave to issue or file be dismissed without listing for hearing pursuant to r 13.03.1 of the High Court Rules.

Please adjourn the Court.

AT 9.30 AM THE MATTER WAS CONCLUDED