Proietti v Proietti (No 5) - [2023] NSWCA 284

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Proietti v Proietti (No 5) [2023] NSWCA 284
Hearing dates: On the papers
Date of orders: 27 November 2023
Decision date: 27 November 2023
Before: Payne JA
Decision:
(1) The applicant’s notice of motion filed 13 November 2023 is dismissed.
(2) Mr Proietti may file by email to the associate of Payne JA, by 4pm on 4 December 2023, submissions of no more than three pages as to whether the Court should, of its own motion, fix a hearing to consider whether Mr Proietti’s claims generally, or about any of the matters the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with by an order made under the Vexatious Proceedings Act 2008 (NSW).

Catchwords:
PROCEDURE – Teoh order – whether further application to set aside orders vexatious or an abuse of process – applicant’s motion dismissed as an abuse of process

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Proietti v Proietti [2022] NSWCA 234
Proietti v Proietti [2022] NSWCA 268
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
Proietti v Proietti (No 4) [2023] NSWCA 251
Teoh v 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 & Peter Joseph Dominello as Court Appointed Trustees (Second Respondent)
Representation: Applicant in person

File Number(s): 2022/217751
Publication restriction: Nil

JUDGMENT

PAYNE JA: This is yet another application made by Mr Philip Proietti arising out of completed proceedings involving a property he and his brother inherited as tenants in common following the death of their mother. The proceedings before the Supreme Court and this Court were concluded in 2022, and an application for special leave to the High Court of Australia was refused in March 2023. This judgment concerns a notice of motion filed by the applicant on 13 November 2023. For the reasons below, the notice of motion should be dismissed as vexatious and an abuse of process.

Background to the proceedings

Mr Philip Proietti (who I will henceforth refer to as “Mr Proietti”) previously lived in a property he inherited (as a tenant in common with his brother) from his mother. In January 2022, his brother, Mr Peter Proietti, applied for trustees to be appointed to sell the property. On 7 July 2022, Kunc J made orders for trustees to be appointed to sell the property.
On 17 November 2022, the Court of Appeal (Mitchelmore JA, Basten and Griffiths AJJA agreeing) dismissed Mr Proietti’s appeal from Kunc J’s orders: Proietti v Proietti [2022] NSWCA 234. On 1 December 2022, the Court of Appeal, constituted by Macfarlan JA, dismissed an application for a stay pending the outcome of a special leave application to the High Court: Proietti v Proietti [2022] NSWCA 268. On…

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 284
Decision Date: 27 November 2023

CaseChat Overview and Summary

In *Proietti v Proietti (No 5)*, the applicant, Mr Proietti, sought to set aside previous orders made by the court. The respondent, also Mr Proietti, contended that the applicant's further application constituted an abuse of process. The matter came before Payne JA.

The central legal issue before the court was whether the applicant's motion to set aside the orders was vexatious or an abuse of process. The court was required to determine if the continued pursuit of these claims by the applicant amounted to an improper use of court resources and procedures.

Payne JA determined that the applicant's motion was an abuse of process. The court's reasoning, though not detailed in the provided text, led to the conclusion that the application lacked merit and was being pursued in a manner that constituted an abuse of the court's process.

Consequently, the applicant's notice of motion filed on 13 November 2023 was dismissed. Furthermore, Mr Proietti was granted leave to file submissions regarding whether the court should, on its own motion, consider making an order under the *Vexatious Proceedings Act 2008* (NSW) in relation to his claims.

Orders

Orders of the court

(1) The applicant’s notice of motion filed 13 November 2023 is dismissed.

(2) Mr Proietti may file by email to the associate of Payne JA, by 4pm on 4 December 2023, submissions of no more than three pages as to whether the Court should, of its own motion, fix a hearing to consider whether Mr Proietti’s claims generally, or about any of the matters the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with by an order made under the Vexatious Proceedings Act 2008 (NSW).

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 5) [2023] NSWCA 284
Hearing dates:	On the papers
Date of orders:	27 November 2023
Decision date:	27 November 2023
Before:	Payne JA
Decision:	(1) The applicant’s notice of motion filed 13 November 2023 is dismissed. (2) Mr Proietti may file by email to the associate of Payne JA, by 4pm on 4 December 2023, submissions of no more than three pages as to whether the Court should, of its own motion, fix a hearing to consider whether Mr Proietti’s claims generally, or about any of the matters the subject of a determination by the Supreme Court or the Court of Appeal, be dealt with by an order made under the Vexatious Proceedings Act 2008 (NSW).
Catchwords:	PROCEDURE – Teoh order – whether further application to set aside orders vexatious or an abuse of process – applicant’s motion dismissed as an abuse of process
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Proietti v Proietti [2022] NSWCA 234 Proietti v Proietti [2022] NSWCA 268 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 Proietti v Proietti (No 4) [2023] NSWCA 251 Teoh v 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 & Peter Joseph Dominello as Court Appointed Trustees (Second Respondent)
Representation:	Applicant in person
File Number(s):	2022/217751
Publication restriction:	Nil