Van Gorp v Davy

[2023] NSWCA 43

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Van Gorp v Davy [2023] NSWCA 43

Hearing dates:

13 March 2023

Date of orders:

13 March 2023

Decision date:

13 March 2023

Before:

Leeming JA at [1] and [19]
Kirk JA at [2]

Decision:

Summons seeking leave to appeal is dismissed with costs.

Catchwords:

APPEAL — Leave to appeal — Abuse of process — appeal to the High Court dismissed — Fresh proceedings involving the same parties, the same issues on essentially the same grounds — Circumvent proper appellate processes — Unjustifiably oppressive to the respondents — Brings the administration of justice into disrepute — No issue of principle or question of general public importance — Leave should be dismissed with costs

EQUITY — General principles and maxims — Equity would attend to the real justice of the case — Equity will not intervene on behalf of someone who lacks standing

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Davy v Van Gorp [2022] NSWSC 466

Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Van Gorp v Davy [2021] NSWSC 1509

Van Gorp v Davy [2022] NSWCA 117

Van Gorp v Davy [2022] NSWSC 1167

Van Gorp v Davy [2022] NSWSC 39

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category:

Procedural rulings

Parties:

Sean Cornelius Van Gorp (Applicant)
James Ashleigh Davy (First Respondent)
Kimberley Ann Evans (Second Respondent)

Representation:

Advocates:

Sean Cornelius Van Gorp (in person)
D Parish (First and Second Respondents)

Solicitors:

Macphillamy’s Lawyers (First and Second Respondents)

File Number(s):

2022/286642

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2022] NSWSC 1167

Date of Decision:

30 August 2022

Before:

Lindsay J

File Number(s):

2022/00250244

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2020 the applicant commenced proceedings in the Supreme Court relating to the will and estate of his former wife. In time the applicant consented to be replaced as the tutor of his younger daughter, and was removed as a party from the case. The proceedings were ultimately resolved by consent orders made in June 2021. The applicant subsequently sought to set aside the consent orders for fraud. This application was dismissed by Ward CJ in Eq and the Court of Appeal refused leave to appeal from that decision. Special leave to appeal to the High Court was sought and refused. After the decision of Ward CJ in Eq, Peden J made an order restraining Mr Van Gorp from bringing claims against the executors without the leave of the Supreme Court until he had satisfied certain costs orders.

The applicant subsequently filed proceedings in the Supreme Court seeking leave to file a statement of claim against the respondents. In substance the statement of claim sought to reagitate issues already determined and to review the decision of the Court of Appeal. That application was refused by Lindsay J in the matter which is the subject of this application for leave to appeal. The applicant had not satisfied the cost orders against him.

The Court dismissed the application for leave to appeal.

Per Kirk JA, Leeming JA agreeing:

There is no basis for doubting the correctness of the conclusion of the primary judge – reflecting the earlier decisions of Ward CJ in Eq and of this Court – that the applicant lacks standing to bring proceedings concerning a deceased estate in which he has no interest: at [15].

The primary judge was correct to characterise the applicant’s attempt to file the statement of claim as an abuse of process. Making a claim or raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process, and that is what occurred here: at [17].

Walton v Gardiner (1993) 177 CLR 378 at 393; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26]; UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [2] and [72], applied.

Per Leeming JA:

There is nothing in the applicant’s submission that reliance upon equity’s jurisdiction to intervene in the real justice of the case. That is because he lacks standing and equity will not intervene on behalf of someone who lacks standing to do so: at [20].

EX TEMPORE JUDGMENT

1. LEEMING JA: I will ask Kirk JA to deliver the first judgment.

2. KIRK JA: This application for leave to appeal represents an attempt by the applicant, Mr Sean Cornelius Van Gorp, to reagitate a legal issue which has previously been finally determined on sound legal grounds. Leave to appeal should be refused.

3. The context is as follows. The applicant’s former wife died on 17 July 2019. They had two daughters together, the elder born in May 2002 and the younger in August 2004. The deceased left a will dated 13 November 2018. Probate was granted to the two respondents in January 2021 as the executors named in the will. The two daughters were the only two beneficiaries named in the will. At no material time has the applicant had any personal interest in the estate of the deceased. He has not asserted that he did. In the hearing below, before Lindsay J, he again disclaimed any intention to make a family provision claim on his own account. He claims his interest in the estate relates to seeking to benefit his daughters.

4. In 2020 the applicant commenced proceedings in the Supreme Court relating to the will and estate of his former wife. In time the applicant consented to be replaced as the tutor of his younger daughter, and was removed as a party from the case. The proceedings were ultimately resolved by consent orders made in chambers by Hallen J on 2 June 2021. His Honour subsequently addressed a costs dispute involving the current parties arising from the proceedings: Van Gorp v Davy [2021] NSWSC 1509. That judgment sets out the procedural history of that matter at length at [3]-[49].

5. The applicant belatedly sought to challenge the 2 June 2021 consent orders by motion filed in November 2021, alleging that they had been obtained by fraud. The respondents to that motion were the respondents in this proceeding, as the two executors. The context of these events was summarised by Meagher JA and Basten AJA in this Court in Van Gorp v Davy [2022] NSWCA 117:

[2] At the time the proceedings were resolved [by the consent orders] the parties were Mr Van Gorp’s younger daughter, referred to as “B”, as plaintiff, by her tutor Ms McIntyre, a solicitor, and the executors of his former wife’s estate, James Davy and Kimberley Evans. Mr Van Gorp had commenced those proceedings in his name in March 2020. When they were first mentioned before Hallen J on 6 April 2020 he acknowledged that he made no claim for himself to any interest in his former wife’s estate and that he was not seeking any relief for himself. Rather he maintained he was seeking relief on behalf of his two daughters, both of whom were minors at the time the proceedings were commenced and accordingly under a legal incapacity. That continued to be the position in relation to the younger daughter, B, at the time the challenged consent orders were made on 2 June 2021; whereas the elder daughter, referred to as “A", had turned 18 in May 2020. …

[9] Between May and September 2020 Mr Van Gorp had the benefit of legal representation in the underlying proceedings. In early June 2020, he filed a motion the effect of which was that he be appointed tutor for B, A having already turned 18. The deceased’s sister, Lindsay Davy, also filed a motion seeking an order that she or some other person be appointed as tutor for B. Those applications were the subject of interlocutory consent orders made on 13 August 2020, which included an order that Ms McIntyre be appointed as tutor for B. Those consent orders also provided for the filing of an amended statement of claim, which named B as plaintiff by her tutor and did not name Mr Van Gorp as a party. That statement of claim was filed. Furthermore, on 18 September an order was made that he be removed as plaintiff and that B be substituted in his place. The elder daughter, A, was never a party to the proceedings.

[10] On 30 October 2020, Mr Van Gorp, at this time representing himself, filed a motion seeking leave to “participate” in the proceedings as an intervener and that he be appointed co-tutor of B, and in the alternative that Ms McIntyre be removed and replaced by him. That motion was dismissed with costs on 18 December 2020. In later reasons delivered in relation to a costs order Hallen J noted that during the argument of that motion Mr Van Gorp acknowledged that he had “no interest in the estate of the deceased” (Van Gorp v Davy [2021] NSWSC 1509 at [32]).

[11] In deciding whether the proposed settlement was in the best interests of B, Hallen J had regard to evidence of Ms McIntyre that she had obtained advice from senior counsel, Mr Ellison SC, that from B’s perspective, the settlement involved a fair and reasonable compromise. Ms McIntyre also gave evidence that A had indicated to the executors that she did not wish to have any orders made in relation to her position as a beneficiary (Judgment at [25], [112]). The effect of that evidence was noted in paragraph 11 of the consent orders ...

6. The applicant’s motion to set aside the consent orders was dismissed by Ward CJ in Eq: Van Gorp v Davy [2022] NSWSC 39. This Court’s earlier decision was an appeal from that decision by her Honour. This Court dismissed the application for leave to appeal, saying:

[7] The primary judge [Ward CJ in Eq] dismissed Mr Van Gorp’s application on the basis that he did not have standing to set aside or vary the consent orders under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15(1) and r 36.16. That relief was sought by paragraphs 1, 2 and 3 of the notice of motion (Judgment at [86]-[90]). Her Honour also held that paragraph 4 did not otherwise give Mr Van Gorp standing to make those claims. Any application under s 70 of the Succession Act 2006 (NSW) should have been brought by the commencement of a fresh proceeding, and the fact that such a proceeding might be brought by Mr Van Gorp did not give him standing to set aside or vary consent orders in family provision proceedings to which he was not a party and in which he had no direct interest (Judgment at [91], [120]).

[8] Each of those conclusions was undoubtedly correct. Mr Van Gorp was not a party to the family provision proceedings at the time the consent orders were made and was not someone whose personal interests were in any way directly affected by the orders made in those proceedings. …

[14] In oral argument Mr Van Gorp relied upon the general principle that courts and administrative agencies having power to affect the rights of a person should give the person the opportunity to be heard before exercising the power. He referred to statements by Barwick CJ in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110; [1976] HCA 58, and Brennan J in J v Lieschke (1987) 162 CLR 447; [1987] HCA 4, the latter dealing with the exercise of a statutory power to make orders removing children from the custody and control of a parent or parents.

[15] Mr Van Gorp contended that applying this principle, he had a right to be heard on his application to set aside the consent orders, notwithstanding that he was not a party to the proceedings and that those orders did not directly affect his rights or interests. He claimed that he was seeking to protect the interests of his younger daughter, B, in the succession proceedings. However, where a guardian ad litem or a tutor has been appointed by a court of competent jurisdiction for the purpose of conducting non-criminal proceedings on behalf of a child, any right of the parents to appoint solicitors or give instructions on behalf of the child is subject to the appointment of the tutor and the authority which that conferred on the tutor. See the observations of Brennan J in Lieschke at 455.

[16] As the primary judge observed at Judgment [87], Mr Van Gorp was not a proper party in his own right to the succession proceedings as initially constituted. To act on his daughter B’s behalf, whilst she was a minor, Mr Van Gorp was required to be appointed as a tutor. He made such an application in the underlying proceedings at a time when he had the benefit of legal assistance. That application was resolved by the appointment of Ms McIntyre. He also subsequently and unsuccessfully applied to have Ms McIntyre removed as B’s tutor.

7. The applicant sought special leave to appeal to the High Court from the decision of this Court, which was refused.

8. After the decision of Ward CJ in Eq and prior to the decision of this Court, Peden J made the following order in April 2022 on the application of the respondents:

The Respondent, Mr Sean Cornelius Van Gorp, is restrained from commencing or continuing in any Court or Tribunal any proceedings against either or both of James Ashleigh Davy and Kimberley Ann Evans (other than by a claim in the nature of an appeal, cross-appeal, defence, cross-claim or cross-summons) which arise from the same or similar facts as these proceedings, including the applications brought by the Respondent in these proceedings, without the leave of a Judge of the Supreme Court of New South Wales, unless and until the Respondent has paid in full the costs as ordered [then listing two costs orders made by Hallen J and one made by Ward CJ in Eq].

9. In making that order, her Honour said that “it is appropriate to make an order restraining Mr Van Gorp from bringing repetitive claims against the estate and executors”: Davy v Van Gorp [2022] NSWSC 466 at [16]. Her Honour noted the following at [19]:

Mr Van Gorp has also been involved in litigation spanning many years in the Family Court concerning his divorce and child support issues. Mr Van Gorp told the Court that he is awaiting a judgment from the Family Court in relation to a matter concerning an alleged fraud that was heard in February this year that “underpins” the proceedings in this Court.

10. The order of Peden J has not been challenged.

11. Just over a month after this Court refused leave to appeal from the decision of Ward CJ in Eq, the applicant filed proceedings in the Supreme Court seeking leave (in light of the order made by Peden J) to file a statement of claim against the respondents. That application was refused by Lindsay J in the matter which is the subject of this application for leave to appeal: Van Gorp v Davy [2022] NSWSC 1167.

12. His Honour noted at [18] that the applicant conceded that he had not satisfied any of the cost orders against him made in the Supreme Court and Court of Appeal. He dismissed the application on the basis, again, of the applicant’s lack of standing to make the claims that he did: at [20]-[22]. His Honour also said the following at [26]:

The plaintiff's persistence in maintaining his challenge, despite adverse rulings, constitutes an abuse of the processes of the Court which might, independently, of findings about standing, justify dismissal of the present proceedings. It is not necessary to dwell on that possibility in circumstances in which the plaintiff has no standing to claim the relief sought in the summons.

13. The statement of claim that the applicant sought to file set out essentially the same allegations that had been rejected by Ward CJ in Eq, from which decision this Court refused leave to appeal on the basis that her Honour’s conclusions were undoubtedly correct. The claim also alleges that the decisions of her Honour and this Court were in error. For example, it said at [6] that some identified reasoning in this Court’s decision “ignored my contention that the tutor’s appointment was obtained by fraud”. And at [17] it said that “[a]pplication of correct judicial method would have produced results of the tutor’s appointment and the consent orders of Hallen J being set aside by Ward CJ in Eq and leave to appeal granted by the Court of Appeal”.

14. In substance the applicant’s statement of claim sought to reagitate issues already determined and sought in effect to seek the review of a decision of this Court in proceedings in the Supreme Court.

15. There are six grounds of appeal in the applicant’s draft notice of appeal. The first three re-raise arguments about standing. There is no basis for doubting the correctness of the conclusion of the primary judge – reflecting the earlier decisions of Ward CJ in Eq and of this Court – that the applicant lacks standing to bring proceedings concerning a deceased estate in which he has no interest. It is noteworthy that the applicant accepted that his younger daughter did not wish to pursue a challenge to the consent orders. The fourth and fifth grounds sought to raise issues about the Supreme Court’s parens patriae jurisdiction. That jurisdiction was not in issue before Lindsay J, not least because both of the applicant’s daughters had reached the age of 18 when his Honour determined the matter, and in circumstances where a tutor had previously acted on behalf of the younger daughter in the proceedings before Hallen J. Some criticism was made by the applicant of a failure of the Supreme Court to deal with the applications expeditiously. In fact the summons seeking leave to file the statement of claim was filed on 23 August 2022, expedition was sought by email on the same day, and the application was determined expeditiously by Lindsay J on 30 August 2022 after a hearing that day. The sixth ground alleged that his Honour erred in characterising the proceedings as an abuse of process.

16. This Court has regularly stated that ordinarily to attract a grant of leave to appeal an applicant needs to establish that there is an issue of principle, a question of general public importance or a reasonably clear injustice going beyond something that is merely arguable. None of the proposed grounds of appeal raise an issue of principle nor an issue of general public importance. There is certainly no reasonably clear injustice, nor any other matter warranting the granting of leave to appeal, in light of the history of judicial determinations in this matter. On the contrary, this application represents an improper attempt by the applicant to re-run issues which have been determined previously.

17. Justice Lindsay was correct to characterise the applicant’s attempt to file the statement of claim as an abuse of process. Making a claim or raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process: see eg Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [26]. That is what the applicant sought to do here, in proceedings involving the same parties as those involved in the previous dispute, and where essentially the same issues are sought to be agitated on essentially the same grounds. The applicant in effect is seeking to circumvent proper appellate processes by instituting successive proceedings in the Supreme Court. The proper avenue for challenging the Court of Appeal’s dismissal of the applicant’s leave to appeal application was to seek leave to appeal to the High Court. That was done and special leave was refused. Bringing fresh proceedings before the Supreme Court ventilating the same issue was plainly inappropriate. For the applicant to seek to proceed as he has done was both unjustifiably oppressive to the respondents and serves to bring the administration of justice into disrepute. It was thus an abuse of process: see, as to general principle, eg UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [2] and [72].

18. The application for leave to appeal should be dismissed with costs.

19. LEEMING JA: I agree with the orders proposed by Kirk JA, and with his Honour's reasons. I would add only one thing. During the course of oral address, Mr Van Gorp articulated at some length his concern that equity as opposed to common law would attend to the real justice of the case. Mr Van Gorp relied upon what the High Court had said in Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2.

13. Separately from the difficulties Kirk JA has referred to concerning compliance with the order made by Peden J, and the underlying abuse of process in Mr Van Gorp's repeated applications to this Court and the Equity Division, there is nothing in his submission that reliance upon equity's jurisdiction to intervene in the real justice of the case. That is because, as was pointed out during argument, he lacks standing, and equity will not intervene on behalf of someone who lacks standing to do so.

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Decision last updated: 16 March 2023