Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Proietti v Proietti [2023] NSWCA 132 Hearing dates: 8 June 2022 Date of orders: 14 June 2023 Decision date: 14 June 2023 Before: Ward P; Adamson JA Decision: 1. Dismiss the notice of motion filed on 24 April 2023 with costs, such costs to be on an indemnity basis and paid out of the applicant’s share of the net proceedings of sale of the property at Marsfield in respect of which the Court has appointed trustees for sale.
2. Order that if Mr Philip Proietti files any further application against Mr Peter Proietti or the Court-appointed trustees in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, stay of execution or appeal from the orders of Kunc J dated 7 July 2022, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Philip Proietti should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
Catchwords: CIVIL PROCEDURE – Dismissal of proceedings – Abuse of process – Where applicant has instituted successive proceedings raising the same issues in a short period of time – Where issues have been determined – Where applicant has declared intention to continue to litigate
DIRECTIONS – Teoh direction – Show cause direction – Where Teoh direction made to prevent an abuse of process
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 63
Conveyancing Act 1919 (NSW), s 66G
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.16(4)
Cases Cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187
Hassan v Sydney Local Health District trading as Royal Prince Alfred Hospital [2021] HCASL 230
Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159
Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90
New Cap Reinsurance Corporation v Grant [2009] NSWSC 950
Paul’s Retail Pty Ltd v Morgan [2009] NSWSC 1343
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387
Proietti v Proietti [2022] NSWCA 234
Proietti v Proietti [2022] NSWSC 875
Proietti v Proietti [2023] HCASL 15
Proietti v Proietti [2023] NSWCA 76
Samootin v Shea [2013] NSWCA 312
State Bank of New South Wales Ltd v Stenhouse Ltd [1997] Aust Torts Reports 81-423
Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324
Teoh v Hunters Hill Council; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197
Continue reading Proietti v Proietti
Sign in free to access the full text
- AGLC
- Proietti v Proietti [2023] NSWCA 132
- Case
- [2023] NSWCA 132
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the applicant's successive proceedings constituted an abuse of process, warranting dismissal. The court was also required to consider the appropriateness of making a "show cause" direction, akin to a *Teoh* direction, to prevent further vexatious litigation.
The Court of Appeal found that the applicant had instituted multiple proceedings raising the same issues within a short period, and these issues had already been determined. The applicant had also indicated an intention to continue litigating. In light of this pattern of conduct, the court concluded that the applicant's actions amounted to an abuse of process. The court applied the principles relating to vexatious and frivolous litigation, noting the need to prevent the misuse of court resources and the unfair burden placed on the respondents.
The Court of Appeal dismissed the applicant's notice of motion with costs on an indemnity basis, to be paid from the applicant's share of the sale proceeds of the Marsfield property. Furthermore, the court made a specific order regarding any future applications filed by the applicant against the respondents concerning the litigated matters. Such applications would be subject to a process where the Registrar would vacate the return date and refer the matter to a judge to determine whether the proceedings should be summarily dismissed as vexatious and an abuse of process, or if the applicant should be invited to show cause why this should not occur.
Orders
Orders of the court
1. Dismiss the notice of motion filed on 24 April 2023 with costs, such costs to be on an indemnity basis and paid out of the applicant’s share of the net proceedings of sale of the property at Marsfield in respect of which the Court has appointed trustees for sale.
2. Order that if Mr Philip Proietti files any further application against Mr Peter Proietti or the Court-appointed trustees in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, stay of execution or appeal from the orders of Kunc J dated 7 July 2022, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Philip Proietti should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.