Re Trani

[2023] VSC 672

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

S ECI 2023 02082

IN THE MATTER of a proposed proceeding

BETWEEN

PATRIZIA TRANI	Proposed Plaintiff
v
NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937	Proposed First Defendant
- and -
THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF ABRAHAM DIQUINZIO	Proposed Second Defendant

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 November 2023
CASE MAY BE CITED AS:	Re Trani
MEDIUM NEUTRAL CITATION:	[2023] VSC 672

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PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept documents for filing – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 28A.04(5) – Substantially irregular – Seeks to relitigate judgment of the Court – Decision of Prothonotary upheld – Refusal to direct Prothonotary to accept and seal documents.

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APPEARANCES:	Counsel	Solicitors
For the Proposed Plaintiff	No appearance (the application being referred on the papers by the Prothonotary)
For the Proposed Defendants

HIS HONOUR:

1. Patrizia Trani (the applicant) attempted to file a Writ and Statement of Claim (the proposed Writ and Statement of Claim)  naming the National Australia Bank Limited (NAB) and the Official Trustee in Bankruptcy as Trustee of the Bankrupt Estate of Abraham Diquinzio (the Trustee) as defendants.

1. On 18 May 2023, the Prothonotary rejected the proposed Writ and Statement of Claim and accompanying documents (collectively the Documents) on the basis that they were substantially irregular. 

1. This is an application for a direction under r 28A.04(5) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) that the Prothonotary seal and accept the Documents.  For the reasons that follow, I will not direct the Prothonotary to seal and accept the Documents for filing.

1. On 9 August 2021, NAB commenced proceedings against the applicant and Abraham Diquinzio to recover possession of land at 28 Eastgate Street, Pascoe Vale South (the land).  On 31 May 2022, the Prothonotary entered judgment in default of appearance.

1. On 5 July 2022, the applicant applied to set aside the default judgment.  Efthim AsJ dismissed that application on 3 October 2022.  The applicant appealed the judgment of Efthim AsJ.  That appeal was dismissed by Croft J on 29 March 2023.[1]

   [1]           National Australia Bank Ltd v Trani and Anor [2023] VSC 142.

1. The proposed Writ and Statement of Claim does not plead any discernible cause of action, but what is clear is that the applicant wishes to assert that NAB is not entitled to the possession of the land and that she is entitled to recover compensation and pecuniary penalties from NAB because it has sought to enforce its right to possession.  The gravamen of the applicant’s complaint is that NAB obtained a judgment without there being a trial by jury.

1. In the proposed Writ and Statement of Claim the applicant sets out her claim for relief in the following terms:

1.An interlocutory injunction to prevent the first defendant [NAB] obtaining possession of the [land] before trial by jury.

2.[NAB] owes me by Blackstones Commentaries as described above. A liquidated sum of $165,000 by five as for a corporation, calculated by reference to s4B Crimes Act 1914 for attempting to pervert the course of justice in respect of the Judicial Power of the Commonwealth as set out in s43 Crimes Act 1914 by obtaining an arbitrary Possession Order from a Judge, a total of $825,000 and a liquidated penalty of $280.500 by five as prescribed for a corporation, for arbitrarily attempting to deprive the plaintiff and her partner of the physical liberty to develop the property they are attempting to arbitrarily repossess by a Possession Order. A Sum of $1,402,500 A Grand Total of $2,227,500 due to the plaintiff and her partner.

3.If the liability is denied to penalty be assessed daily until it is settled or tried by reference to s4K Crimes Act 1914.

4.An assessment by the court of the allegation that the possession order obtained by [NAB] was obtained in breach of the alleged Commonwealth enactments and whether it is liable to the Pecuniary penalties prescribed therefrom. The right to seek this order derives from s15F Crimes Act 1914 and s80 Judiciary Act 1903.

1. The proposed Writ and Statement of Claim constitutes an attempt to re-litigate the very matters determined by the judgment of Croft J.  Paragraph 1 seeks to restrain NAB from enforcing a valid order of the Court which was the subject of that judgment.  Paragraphs 2 and 3 seek compensation and pecuniary penalties predicated on an assumption that NAB’s right to possession is somehow unlawful, an assumption which cannot be properly maintained in light of the judgment.  Paragraph 4 seeks to impugn the default judgment on grounds not raised before Efthim AsJ or Croft J.

1. Further, there is simply no basis in law for the relief sought in paragraphs 2 and 3.  The references to the Crimes Act 1914 (Cth) (Crimes Act) ss 4B, 4K and 43 are completely misconceived. Section 4B of the Crimes Act deals with pecuniary penalties for offences and s 4K makes provision in relation to continuing and multiple offences. The allegation of an attempt by NAB to pervert the course of justice under s 43 of the Crimes Act for seeking an order of the Court for possession of the land was properly described by the Prothonotary in his reasons as scandalous.

1. Whilst there are references in the proposed Writ and Statement of Claim to forms of equitable relief, there is nothing in the facts alleged which could ground such relief and it is apparent that any such relief stands or falls on the proposition that NAB has somehow acted unlawfully in obtaining the order for possession and seeking to enforce it.

1. The attempt to bring a proceeding which rests entirely for its foundation on propositions contrary to a judgment of the Court between the same parties may properly be described, as the Prothonotary did in his reasons, as irregular.  In my view this is also one of those “rare and exceptional cases”[2] in which it also constitutes an abuse of process.

   [2]           Austin v Dwyer & Ors [2023] VSC 76, [15].

1. In the circumstances, there is no reason to exercise the power under r 28A.04(5). The Prothonotary was correct not to accept the Documents.

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