Sorbello v Sorbello

[2012] WASC 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SORBELLO -v- SORBELLO [2012] WASC 240

CORAM:   McKECHNIE J

HEARD:   3 JULY 2012

DELIVERED          :   3 JULY 2012

FILE NO/S:   CIV 1456 of 2012

BETWEEN:   ALFREDO SORBELLO

NARDINO SORBELLO
SANDRA EVEREST
Plaintiffs

AND

LIDIA SORBELLO
Defendant

Catchwords:

Vexatious proceedings - One action - Whether an abuse of process - Other means to control action

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Leave is refused

Category:    B

Representation:

Counsel:

Plaintiffs:     Mr J Eastoe

Defendant:     No appearance

Solicitors:

Plaintiffs:     Jonathan Eastoe

Defendant:     No appearance

Case(s) referred to in judgment(s):

Attorney General v Michael [2005] WASC 203

Granich Partners v Yap [2003] WASC 206

McKECHNIE J: 

How this matter comes to court

1. The plaintiffs and defendant are siblings.  Their mother, Guiseppina, died on 31 December 1996 and probate was granted on 13 February 1997.  Part of the estate included property at 191 Scarborough Beach Road, Doubleview.  In 1998 the first plaintiff, Alfredo, who was also the executor of the Will, reached an agreement with his brothers and sisters that he would purchase their interests in the property for $60,000 each.  He duly paid each of them.  Lidia was a signatory to the agreement.  The property was transmitted into Alfredo's company, AS Pty Ltd, on 10 February 1999.

2. Four years later, on 17 April 2003, a firm of solicitors acting for Lidia wrote to Alfredo's solicitors and in the course of the letter set out instructions about the family meeting which said:

   Another brother John and Lidia decided to retain their inheritance as they both welcomed and relied on the income received from their interest in the lease commercial premises. 

   I understand that no formal agreements were concluded at that meeting and no conferences were subsequently held by the siblings.

3. The complaint was that no income had been received from the shops from December 1998 and it was further asserted:

   My client was forced to vacate her home on an urgent basis and was only able to do so with your client's assistance to the extent of a sum of approximately $60,000 which enabled my client to purchase a unit at 98 Ewing Street, Scarborough.

4. John wrote back to the solicitor explaining that contrary to the assertion there was a family agreement and that he received $60,000.

5. A further letter was sent by Lidia's solicitors dated 4 July 2003 to Alfredo which included the following:

   We are instructed to advise you as we hereby do that should this matter not be resolved to our client's satisfaction by Wednesday, 16 July 2003 our client will instruct us to immediately commence proceedings against you and your company in the Supreme Court of Western Australia for various orders including but not limiting to the immediate setting aside of the purchase and sale of the land to your company, damages and costs.

6. That letter elicited a response from Alfredo's solicitor which set out the facts and enclosed a copy of the financial statement which had been requested.  That seemed to mark the end of the dispute.  However, this was not to be.

7. On 25 October 2011 Alfredo obtained a violence restraining order against Lidia which she continued to breach.  A topic of the emails that she sent indicates her continuing dispute over the property.  It is not necessary to set out the substance of the emails which were attached to Alfredo's affidavit but some of them are vicious.  Others are expressly threatening and abusive.

The beginning of litigation

1. On 31 January 2012 Lidia filed a writ of summons, CIV 1145 of 2012, against Sandra, Nardino and Alfredo.  The claim seems to be that the property was undervalued and there was undue influence by the executor, taking advantage of her illness.  A memorandum of appearance has been entered and on 22 March 2012 Registrar Whitbread ordered:

   1.The parties be excused from attending the case management conferences until further order.

   2.Any obligation on the First, Second and Third Defendants to file a defence be suspended until further order of the Court.

   3.The Status Conference be adjourned to Thursday 5 July 2012 at 10.00 am.

   4.The costs of today be in the cause.

2. On 9 March 2012 Alfredo's solicitors wrote to Lidia advising of instructions to seek orders under the Vexatious Proceedings Restriction Act 2002 (WA).

3. And so these proceedings commenced.

Does Lidia know of these proceedings?

1. In an affidavit sworn 27 June 2012 Alfredo's solicitor detailed the various attempts at service which included the report from the process server dated 22 April 2012.  Subsequently letters were posted but returned 'not at this address return to sender' although the envelope appeared to have been opened and resealed.  The solicitor's letter did appear to elicit a response by way of a letter of 7 May 2012 making unfounded allegations in relation to Alfredo.  Although signed 'neighbour' there is a fair assumption that it was sent from Lidia.

2. I am satisfied that Lidia has had adequate notice of these proceedings.

Vexatious proceedings

1. Alfredo seeks leave to bring this application:

   2.staying Supreme Court action CIV 1145 of 2012 until further order and;

   3.prohibiting Lidia from instituting proceedings against the Plaintiffs without leave of the court.

2. A vexatious proceeding is defined under s 3:

   vexatious proceedings means proceedings -

   (a)which are an abuse of the process of a court or a tribunal;

   (b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

   (c)instituted or pursued without reasonable ground; or

   (d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

3. E M Heenan J set out the principles which govern the grant of leave in Granich Partners v Yap [2003] WASC 206 [31]. Some of the circumstances in which an order may be granted are, with respect, very well set out by Le Miere J in Attorney General v Michael [2005] WASC 203 [143] ‑ [144].

Conclusion

1. It is a general characteristic of applications under the Vexatious Proceedings Restriction Act that there have been constant and repeated initiation of proceedings which have no hope or prospect of success.  While a single action might fall under the category of a vexatious proceeding, there are other weapons in the judicial armoury to deal with such proceedings.

2. For example, the present writ asserts events which, although not dated in the writ, appear to have occurred well after the maximum period allowed for under the Limitation Act 1935 (WA). No application has been made to extend time.

3. The claim is not in a form to which a proper plea can be made.  Counsel submits that the various emails demonstrate the preparedness of Lidia to expose Alfredo to a campaign to publicly and widely discredit him if he does not accede to her demands, a predilection on her part to make wild, unsubstantiated allegations and a preparedness to threaten violent measures against him.  That is an accurate summary of the emails.  However, it is the proceedings which must be vexatious.  On the present state of the evidence it is not clear whether the proceedings are brought for an improper purpose as an abuse of the court or whether the proceedings, possibly properly brought, are being supported by improper means, including threats and denigration.

4. There is no evidence that Lidia will institute further proceedings against Alfredo or others.  The armoury of the court to prevent abuse includes O 67 r 5 if Lidia should choose to institute further proceedings which appear to be an abuse of the process or vexatious.

5. There are formidable difficulties in Lidia's way if she wishes to pursue her litigation.  The first is the limitation point and the second is the embarrassing nature of her pleading which makes a rational pleaded defence impossible.

6. I am not prepared at this stage to stay the present proceedings or to prohibit further proceedings without leave.  At present there are other measures available for the court to control its processes and prevent oppression to a litigant.  It is not presently necessary to take the serious step of a general restriction.

7. For these reasons leave is refused.