Proietti v Proietti (No 4) - [2023] NSWCA 251

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Proietti v Proietti (No 4) [2023] NSWCA 251
Hearing dates: On the papers
Date of orders: 20 October 2023
Decision date: 20 October 2023
Before: White JA
Decision:
Applicant’s notice of motion filed 28 September 2023 is dismissed

Catchwords:
CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant’s claim – Whether motion ought to be summarily dismissed as abuse of process – Motion dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 63(3)(a)
Conveyancing Act 1919 (NSW0, s 66G
Uniform Civil Procedure Rules 2015 (NSW), r 36.16(4)

Cases Cited:
DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225
Hamod v New South Wales [2011] NSWCA 375
Proietti v Proietti [2022] NSWSC 875
Proietti v Proietti [2022] NSWCA 234
Proietti v Proietti [2023] HCASL 15
Proietti v Proietti [2023] NSWCA 76
Proietti v Proietti [2023] NSWCA 132
Proietti v Proietti (No 3) [2023] NSWCA 199
Teohv Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category: Procedural rulings
Parties: Philip Proietti (Applicant)
Peter Proietti (First Respondent)
Ian Colwell Miller and Peter Joseph Dominello (Court Appointed Trustees) (Second Defendant)
Representation: Applicant in person

File Number(s): 2022/217751

JUDGMENT

HIS HONOUR: Two brothers, Philip Proietti and Peter Proietti, have been in dispute in relation to a family home which they inherited as tenants in common following the death of their mother. Peter Proietti’s application for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) was upheld by Kunc J on 30 June 2022 (Proietti v Proietti [2022] NSWSC 875). Philip Proietti appealed from that decision. The appeal was dismissed on 17 November 2022 (Proietti v Proietti [2022] NSWCA 234). Mitchelmore JA gave the leading judgment. Basten and Griffiths AJJA concurred in her Honour’s reasons.
One ground of appeal was that Philip Proietti, who had represented himself before the primary judge, had been denied procedural fairness. That ground was rejected for reasons given by Mitchelmore JA at [69]-[83].
A claim that the primary judge was biased was also rejected (at [90]-[98]). Other claims as to the merits of the primary judge’s determination that orders should be made for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act were also rejected.
Philip Proietti sought special leave to appeal to the High Court of Australia on 8 December 2022. His special leave application contended that the proceedings at first instance were conducted unfairly. Reliance was placed on decisions of this Court in DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 (at [98]) and Hamod v New South Wales [2011] NSWCA 375 (at [309]-[312]).
Special leave…

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.

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Details

Case: [2023] NSWCA 251
Decision Date: 20 October 2023

CaseChat Overview and Summary

The applicant, Mr Proietti, sought to reagitate matters previously determined in earlier proceedings and to set aside final orders made by the court. The respondent sought the summary dismissal of the applicant's further motion on the basis that it constituted an abuse of process, as the orders sought were irreconcilable with prior judicial determinations of the applicant's claim. The matter came before White JA.

The primary legal issue before the court was whether the applicant's notice of motion, filed on 28 September 2023, ought to be summarily dismissed as an abuse of process. This required the court to consider whether the motion sought to relitigate issues that had already been finally determined and whether the relief sought was fundamentally inconsistent with previous judicial findings.

White JA reasoned that the applicant's motion sought to revisit and overturn decisions that had been conclusively made in prior proceedings. The court applied the principle that parties are generally bound by final orders and that the court will not permit its process to be used to relitigate concluded matters, as this constitutes an abuse of process. The relief sought in the motion was found to be irreconcilable with the existing judicial determinations, leading to the conclusion that the motion was vexatious and an abuse of the court's process.

Consequently, the applicant's notice of motion filed on 28 September 2023 was dismissed.

Orders

Orders of the court

Applicant’s notice of motion filed 28 September 2023 is dismissed

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.

Medium Neutral Citation:	Proietti v Proietti (No 4) [2023] NSWCA 251
Hearing dates:	On the papers
Date of orders:	20 October 2023
Decision date:	20 October 2023
Before:	White JA
Decision:	Applicant’s notice of motion filed 28 September 2023 is dismissed
Catchwords:	CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant’s claim – Whether motion ought to be summarily dismissed as abuse of process – Motion dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 63(3)(a) Conveyancing Act 1919 (NSW0, s 66G Uniform Civil Procedure Rules 2015 (NSW), r 36.16(4)
Cases Cited:	DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 Hamod v New South Wales [2011] NSWCA 375 Proietti v Proietti [2022] NSWSC 875 Proietti v Proietti [2022] NSWCA 234 Proietti v Proietti [2023] HCASL 15 Proietti v Proietti [2023] NSWCA 76 Proietti v Proietti [2023] NSWCA 132 Proietti v Proietti (No 3) [2023] NSWCA 199 Teohv Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Category:	Procedural rulings
Parties:	Philip Proietti (Applicant) Peter Proietti (First Respondent) Ian Colwell Miller and Peter Joseph Dominello (Court Appointed Trustees) (Second Defendant)
Representation:	Applicant in person
File Number(s):	2022/217751