Velissaris v Dynami Pty Ltd

[2013] VSCA 299

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0008

GEORGE VELISSARIS	Appellant
	v
DYNAMI PTY LTD and BETTY (PANAGIOTA) ZERVAS	Respondents

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JUDGES	TATE, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 October 2013
DATE OF JUDGMENT	24 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 299
JUDGMENT APPEALED FROM	Velissaris v Dynami Pty Ltd and Zervas [2010] VSC 587, Sifris J

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PERSONAL PROPERTY – Appeal against decision that appellant had not established ownership or right to possession of plant and equipment sold by liquidator of company – Failure by appellant to prove ownership of plant and equipment – No denial of procedural fairness – Appeal dismissed.

COURTS – Inherent jurisdiction – Appeal against orders restraining institution of further proceedings – Whether power exists to make such orders – Commonwealth Trading Bank v Inglis & Anor (1974) 131 CLR 311 and von Risefer v Permanent Trustee Co Ltd [2005] 1 Qd R 681 considered – Orders confined to further proceedings which are in substance an attempt to re-litigate a matter already decided – Width of order – Order varied.

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Appearances:	Counsel	Solicitors
The Appellant in Person
For the Respondents	Mr D T Forbes	Stonnington & Zervas

TATE JA:

1. I have had the benefit of reading, in draft form, the reasons of Osborn and Whelan JJA. 

1. I agree with Whelan JA that the inherent jurisdiction of the Supreme Court of Victoria extends to the making of an order restraining a party from bringing applications, or instituting new proceedings, which are in substance an attempt to relitigate matters that have already been determined by the Court.  As Lord Phillips MR said in Bhamjee v Forsdick:

A court's overriding objective is to deal with cases justly.  This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases).  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.  They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.[1]

[1][2004] 1 WLR 88, 93 [15].

1. I also agree with Whelan JA that that the order made by Sifris J was too wide and that it should be restricted to the subject-matter of his Honour’s judgment.

1. I agree with Osborn JA that the multiplicity of proceedings brought by the appellant, and applications made within those proceedings, create a real risk that, without appropriate restraint, he will seek to relitigate the issues relating to the plant and equipment that was sold by the Liquidator of Maryvell Investments Pty Ltd to Stonnington Online Conveyancing Pty Ltd, pursuant to clause 22.7 of the lease.  The history of the litigation described by Osborn JA[2] justifies a restraining order in this case to prevent an abuse of the Court’s processes and, as acknowledged by Keane JA in von Risefer v Permanent Trustee Company Limited[3] to ‘protect parties against whom baseless allegations of unlawful conduct have repeatedly been made from the

expense, inconvenience and hurt involved in the further repetition of those allegations’.[4]

[2]See, in particular, the 21 sets of related proceedings in the Victorian Supreme Court and other courts identified by Ferguson J in Re Velissaris [2012] VSC 293, ‘Schedule of cases involving Mr George Velissaris’.

[3][2005] 1 Qd R 681.

[4]Ibid 688 [25].

OSBORN JA:

Introduction

1. The background to this matter is usefully summarised at the outset of the judgment of the trial judge, Sifris J:

1Maryvell Investments Pty Ltd (‘Maryvell’) is a company in liquidation. 

2Maryvell was wound up by order of this Court made on 10 June 2006.  Laurence Andrew Fitzgerald was appointed liquidator (‘the Liquidator’). 

3Maryvell was the registered proprietor of the land situated at and known as 333 to 335 Sydney Road, Brunswick (‘the Property’).

4By a contract of sale entered into between the Liquidator and the first defendant, Dynami Pty Ltd (‘Dynami’) on 26 March 2008, Dynami purchased the Property (‘Contract of Sale’). 

5Prior to the Contract of Sale and on 20 March 2008, Maryvell entered into a lease agreement (‘the lease’) with Stonnington Online Conveyancing Pty Ltd (‘the Tenant’).  The lease provided for a monthly rental of $5,000. 

6Pursuant to clause 22.7 of the lease, the plant and equipment situated at the Property was sold by the Liquidator of Maryvell to the Tenant for a consideration of $1. 

7The Liquidator sold the plant and equipment to the Tenant because he was of the opinion that the equipment belonged to Maryvell and as such, he was entitled to sell it.  I note immediately that no claim is made against the Liquidator or the Tenant in this proceeding.

8The plaintiff contends that he owned, operated and managed a Greek restaurant from the Property.  The plaintiff has brought this proceeding in order to recover the value of the plant and equipment and consequential loss.  The plaintiff alleges that at all times the plant and equipment, which he has identified in the statement of claim, was his and was not available for sale by the Liquidator. 

9The Liquidator contends that he was entitled to sell the plant and equipment and the Property.  In any event as pointed out, the

Liquidator is not a party to this proceeding.  The purchaser of the freehold is a party, together with the second defendant Betty Zervas, who executed a guarantee pursuant to the Contract of Sale.  The Tenant is not a party.

10Accordingly, the critical issue in this case is whether the plaintiff is able to establish that he (and not Maryvell) was the owner of the plant and equipment as alleged.[5] 

[5]Velissaris v Dynami Pty Ltd & Zervas [2010] VSC 587, [1]-[10].

1. It may also be noted that the evidence of the appellant and his daughter, Mary Patroungas, was that in October 1997 the Bank of Melbourne, acting pursuant to a mortgage and charge previously given by the appellant, sold the restaurant at auction to Mrs Patroungas or nominee.  Subsequently Maryvell was nominated as purchaser and settled the purchase in March 1998. 

1. The appellant maintains however that Maryvell did not purchase the plant and equipment for a variety of alternative reasons I will explain below. 

1. At the trial his Honour was not persuaded that the plaintiff was the owner of the plant and equipment formerly used in the restaurant business at the time it was disposed of by the liquidator.  I should add that the appellant made clear early in the trial that he understood that the threshold issue in the case was proof of ownership of the plant and equipment and that he was regularly reminded of the centrality of this issue by the trial judge during the course of the hearing. 

1. His Honour further concluded that even if he were wrong in this primary conclusion:

(a)       the claim against the defendants must fail because the plant and equipment were acquired by the tenant which is not a party to this proceeding;

(b)      there was no satisfactory evidence of the value of the plant and equipment (if any); and

(c)       the plaintiff had not substantiated any claim for destruction of business and consequent loss of goodwill. 

1. The appellant appeals this decision on a series of grounds. 

1. Ground 1 takes issue with the form of the order of Sifris J.  There is nothing in this point.  An initial error in the form of the preamble has been corrected. 

1. Grounds 2 and 3 in effect assert that the trial judge was wrong to refuse an application to join the tenant and its director Theodore Zervas as parties during the course of the trial. 

1. Ground 4 takes issue with the reference to the tenant and Mr Zervas in an order the judge ultimately made prohibiting the bringing of further proceedings by the appellant with respect to the plant and equipment without leave of the Court.[6] 

   [6]His Honour’s substantive orders were, firstly, that the proceeding is dismissed and, secondly, that the plaintiff (George Velissaris) pay the defendant's costs and, thirdly, that ‘[n]o further proceeding or process of any kind in the Trial Division of the Supreme Court of Victoria, including this proceeding, concerning Dynami Pty Ltd, Betty Zervas, Theodore Zervas or Stonnington Online Conveyancing Pty Ltd ACN 096 995 050, Maryvell Investments Pty Ltd ACN 080 327 073 (in liquidation), the property known as 333-335 Sydney Road Brunswick or the plant and equipment once used or located therein be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of a judge of the Court’.  The question of whether his Honour had the power to make the third order, and the scope of the order made, are considered in the reasons of Whelan JA below.

1. Ground 5 complains that his Honour unfairly confined the appellant in cross-examination of the defendants’ witnesses and in particular the liquidator. 

1. Ground 6 complains that the trial judge unfairly required the appellant to hurry up in the presentation of his case. 

1. Ground 7 alleges that his Honour erred in considering the evidence as to ownership of the plant and equipment and in particular:

(a)       the appellant’s assertion that he purchased 90 per cent of the equipment in 2003-5 with his own money;  and

(b)      the appellant’s assertion that Maryvell never traded but was a bare trustee of the building and land. 

1. Grounds 8 and 9 allege the liquidator was not entitled to sell the equipment. 

1. Grounds 10 and 11 assert that his Honour’s conclusions are inconsistent with previous orders of Master Efthim (as he then was).  They also include a series of allegations which seek to explain away an affidavit sworn by the appellant on 13 June 2006 (‘the June 2006 affidavit’) which is entirely inconsistent with the appellant’s claim. 

1. Ground 12 alleges his Honour erred in rejecting the appellant’s claim to ownership of the plant and equipment in the following terms:

I submit that Justice Sifris failed to accept my clear evidence that I bought all the plant and equipment and in 2003 to 2005 and with my own moneys, and that I have got the previous old ones from my daughter Mary Velissaris, and as a gift in 2003 and when I took over the full business and when I became well with my health, and I have sold and or traded in the old ones, and as my daughter had purchased them in 11 October 1997 and she hold them as her own property, and as she did not give them to the trustee company Maryvell Inv. P/L and only the land vol. and folio was put into the company’s name and not any plant/equipment and or chattels put on the company’s name, and the liquidator could not produce any evidence to prove that the company Maryvell Inv. P/L owned the equipment and or paid for them.[7] 

[7]Random capitalisation omitted. 

1. Grounds 13, 14 and 15 directly address the June 2006 affidavit and allege that neither the liquidator nor his Honour are entitled to rely upon it. 

1. Ground 16 asserts that because Maryvell and not the business was in liquidation the liquidator had no right to sell the plant and equipment in it. 

1. Ground 17 asserts that the evidence of Mary Patroungas (the daughter of the appellant) established that on or about 18 March 1998 she as purchaser of the restaurant property nominated Maryvell as the purchaser of that property but not of the plant and equipment. 

1. Ground 18 seeks to reserve the right to amplify the grounds of appeal. 

1. It is convenient first to deal with the grounds concerning ownership of the plant and equipment because this consideration will clarify the evidentiary matrix against which the allegations of want of procedural fairness must be understood. 

The plant and equipment

1. In my view Sifris J was plainly correct to conclude that the appellant did not prove ownership of the plant and equipment. 

1. The statement of claim upon which the appellant sued, and upon which (following various procedural complications) the trial ultimately proceeded, pleaded the appellant’s claim to ownership as follows:

All the plant and equipment and all the fictures (sic) and fittings and the air conditioners in the premises and the two solid timber bars at 333-335 City Road, Brunswick – 3056, and all furniture and wardrobes and all cooking equipment and crockery and cutlery for 350 people, are George Velissaris property, and the liquidator had no power to sell to anyone, and that is why they are not included in the contract of sale of the 26^th March 2008. 

1. It can be seen the basis of the appellant’s claim to ownership is not pleaded or particularised and it should also be noted that the claim expressly includes fixtures and fittings. 

1. A second statement of claim filed on 27 April 2010 but subsequently struck out put the claim this way:

16.The Plaintiff STARTED the business in October, 1990 and PURCHASED ALL THE PLANT, EQUIPMENT AND CHATTELS WITH HIS OWN MONEY BRAND NEW for the operation of the BUSINESS and was the SOLE OWNER of all the PLANT, EQUIPMENT AND CHATTELS AS DESCRIBED IN PARAGRAPH 12 AND 13 OF THE ORIGINAL STATEMENT OF CLAIM DATED and FILED 17 December, 2009 as attached to the Writ.  In addition to the equipment described in these paragraphs, I also purchased 2 large, 4 door under bar drink fridges in 1990 and a large reverse cycle air conditioning unit as placed on top of the roof of the premises for the upstairs restaurant and cost me $36,000.00.  This was all purchased prior to the incorporation of MARYVELL INVESTMENTS PTY. LTD which was set up in 1998.  The trustee company DID NOT even exist at the time I purchased the PLANT, EQUIPMENT AND CHATTELS and did not have any interest in the PLANT, EQUIPMENT AND CHATTELS.

1. In oral evidence the appellant said in part as follows:

In 1998 and 1999 when you transferred it to your daughter you transferred her the business before you went bankrupt? --- My daughter was running the business. 

But you gave her ownership; she owned the business in 1998 and 1999, is that right? --- The business, she owned the equipment of the business. 

She owned the equipment in 1998 and 1999, is that right? --- Exactly. 

Wait.  She owned the business in 1998.  She owned the equipment in 1998, 1999? --- Yes. 

When did she give it back to you? --- End 2002, mid-2003.  In mid-2003 I took it over again. 

She gave it back to you? --- Yes. 

Is there any document to show that she gave it back to you? --- We didn’t sign an agreement but typically as a family we shake hands as a family, that’s all.  We didn’t exchange money if you want to know.  My daughter (indistinct) it’s my daughter and we agreed.  We shake hands and we give our word. 

1. The appellant advanced his case at trial on the following further and substantially inconsistent bases:

(a)       the plant and equipment was given to him by his daughter in 1997;

(b)      the greater part of the plant and equipment was purchased by him personally between 2003-5.

1. Ultimately the appellant put his case this way in evidence:

Is there anything you want to say about the equipment? --- The equipment, they’ve never been bought by the company.  They’ve been bought by my daughter and me I think on the 12 October 1997 auction.  The company was not in existence.  As far are my (indistinct) mind tells me, I am a pure Greek from Sparta, Kalamata and I speak the truth.  I say, ‘Why the company did not pay a cent for the property and neither for the equipment whatsoever.  The equipment were mine (indistinct) nobody has been on the property and we bought it cheap, your Honour, yes (indistinct) 60 per cent on (indistinct). 

Is there any other document that you have to show that you were the owner of the plant and equipment or your daughter? --- Your Honour, what do I have to prove?  The company was not incorporated in the 30 January 1998.  Equipment has been bought from 1999.  The equipment was bought in my name with cash. 

You did give the plant and equipment to your daughter before you went bankrupt.  Do you agree? --- Your Honour, not before I went bankrupt.  My daughter purchased the property and the plant and equipment in 1997, October.  I went bankrupt in 1999 …

1. Following this his Honour expressly invited the appellant to call any further evidence he wished to after a weekend break.  He subsequently called his daughter and a series of further witnesses.

1. I turn then to some of the matters raised in evidence by the respondents.  In 1999 the appellant was declared bankrupt.  He was discharged from bankruptcy in October 2002.  He completed and signed a Statement of Affairs dated 29 October 1999, which stated that Maryvell as trustee was owner and operator of the restaurant business.  Maryvell is identified as the trustee of the Maryvell Family Trust, the principal activity of which is ‘restaurant business and investment’.  Its assets are described as ‘333-335 Sydney Road, Brunswick’ and another property.  The name and address of the person holding the trust deed and the trust books of account and financial statements is given as the appellant’s daughter, Mary Velissaris. 

1. This Statement of Affairs also indicated that the appellant’s daughter Mary held the Maryvell company records including profit and loss statements, balance sheets and share registers. 

1. The Statement of Affairs indicated the appellant had assets with a total value of $1,922.56 made up of cash, furniture and effects and tools of trade.  It acknowledged that he had conducted ‘the Greek Bar Tavern’ and restaurant business and that some business assets were not owned by him.  It stated that the business was not still operating.  It stated ‘Bank Enter into Possession in July 97’, and indicated there were no books of account written up. 

1. By an affidavit sworn 25 May 2006 in the winding up proceeding relating to Maryvell, the appellant deposed that Maryvell was the sole proprietor of the premises located at 333-335 Sydney Road, Brunswick, and stated:

A business is operated by the defendant from the business.  The business name is The Greek Bar Tavern.  The business is a restaurant business. 

1. He further stated that Maryvell’s accountant was Mary Patroungas and produced a balance sheet and profit and loss account for Maryvell for the year ended 30 June 2005. 

1. These accounts were produced in evidence by Mr Dinning, the solicitor who was retained for the appellant in 2006.  They record Maryvell as owning the plant and equipment and value the plant and equipment at an historical cost of $190,000 adjusted for annual depreciation. 

1. In his affidavit of 25 May 2006 the appellant further deposed:

As the sole director of the defendant, I wish to state for the record that the financial affairs of the defendant are better than that which is reflected in the 30 June 2005 financial reports annexed hereto.  It is also my belief that due to the improvements undertaken in the upstairs function of the property that the value of the property has increased significantly and its ability to attract fees from rent and functions. (sic)

1. However, the best evidence of the ownership of the plant and equipment at the date of sale by the liquidator was, as his Honour concluded, constituted by the appellant’s June 2006 affidavit.  That affidavit states that Maryvell was incorporated on 8 October 1997.  It states the appellant is the sole shareholder, director and secretary of Maryvell and holds 1,000 fully paid ordinary shares comprising 100 per cent of the issued share capital of Maryvell. 

1. It describes the business of Maryvell as follows:

Business of the Company

15.The Company operates a business at the property.  The business is a restaurant and trades under the business name of "The Greek Bar Tavern" ("Kalamata") (the business).  Now produced and shown to me and marked GV2 1s a copy of a Certificate of Registration of Business name dated 6 July 2004.

16.A planning permit no. P138/1990 was issued by the then City of Brunswick to the property on 5 October 1990 to operate the business. The permit provides for the operation of a bar and restaurant with seating capacity of 135 people.

17.The business has been operating since 1990.  I am involved in the running of the business.  I manage the business and am also the head chef and the food safety supervisor.  The business employs family members plus two /three part-time casuals.  The business operates from 5pm to 12pm seven nights a week.

18.In July 2003 I completed a certificate II in Food Processing completing the requirements of application of basic food safety practices and implementation of food safety plan as required by the law Now produced and shown to me and marked GV3 is a copy of a Statement of Attainment dated July 2003.

19.The net operating profit of the Company for the year ending 31 May 2006 is $40,082.09.  It is my intention for the Company to continue operating the business as an ongoing concern and then to sell the business and to lease out the property for a minimum of $3,000.00 per week.  Offers have been made to me recently for the purchase of the business. 

1. The opening statement, quoted above, that Maryvell operated the business is entirely consistent with the statement of affairs and prior affidavit which I have already quoted above. 

1. The June 2006 affidavit exhibits a set of financial statements and a report prepared by certified accountants.  That report indicates Maryvell has total assets of $3,577,605.85.  The affidavit goes on to describe those assets and in particular to describe plant and equipment owned by Maryvell:

42.All plant and equipment to operate the business was purchased by the Company and is owned by the Company.  There is no plant and equipment that is leased. Amongst other things, the plant and equipment comprise freezers (5), tables/ chairs (with seating capacity for 200 persons), upright freezers (2), bar, cooking equipment, hot plat/ oven, charcoal grill, fryer, upright rotisserie, stainless steel tables and benches/ counters, crockery/ cutlery, coffee machines (2).

43.The above plant and equipment caters for 200 patrons both upstairs and downstairs.  However the permit issued to the business only provides for seating capacity of 135.

44.All of the above items were purchased new at an approximate cost of $190,000.00.  If realised, plant and equipment could net approximately $127,000.00.

1. The affidavit further sets out the assets owned by the appellant and describes no assets within Victoria. 

1. On the trial the defendants called evidence from Mr Dinning, the solicitor who prepared the affidavit on instructions from the appellant.  He described the preparation of the affidavit by way of successive drafts over many days.  He said that he received full instructions from the appellant in relation to the assets of Maryvell and was provided with the exhibits to the affidavit by the appellant including the report which describes the assets.  His evidence is inherently probable.  The affidavit is a carefully drafted document.  It exhibits relevant financial statements.  It spells out the nature of the assets owned by Maryvell and the assets owned by the appellant. 

1. As the appellant submits, at one point the trial judge said in his reasons that the appellant was ‘bound by his admission’ in the June 2006 affidavit as to the ownership of the chattels.  I agree that this was not correct and his Honour was bound to determine the question of ownership by reference to the evidence as a whole.  Nevertheless, when his Honour’s reasons are read as a whole it is apparent that he had regard to all the evidence before him and that in substance he treated the affidavit of June 2006 as the best evidence on the fundamental issue before him.  His reasons also made further reference to other evidence as will be apparent below.  There was no error in his Honour’s assessment of the evidence. 

1. The circumstantial evidence as a whole provides no sensible basis for preferring the appellant’s subsequent self-serving statements claiming ownership of the plant and equipment as against the statements made by him in his affidavit of June 2006. 

1. First, it may be accepted entirely that the appellant initially purchased the Sydney Road property in 1984 and in 1989 renovated it and started a restaurant business under the name ‘The Greek Bar Tavern’.  It may also be accepted that in 1990 he purchased substantial plant and equipment for the restaurant and thereafter replaced items of equipment from time to time.  Nevertheless, the evidence as a whole including the Statement of Affairs to which I have referred supports the conclusion that Maryvell was intended in 1998 to, and did in fact, take over the business and the assets utilised in it were divested from the appellant personally.  Mrs Patroungas gave evidence that the purpose of transferring the property utilised in the restaurant business to the trust was first to protect that property if her father went bankrupt and secondly to allow income to be distributed to the trust beneficiaries for taxation purposes.[8]  Both these purposes render it likely that not only the freehold land but also ownership of the business and of the plant and equipment were transferred to Maryvell.  The appellant’s understanding of the nature of beneficial ownership resulting from the trust arrangement and his subjective belief that the business ‘always was and remained my business’ do not alter this fundamental probability.  Further, no contemporaneous records as to the trust arrangements were produced by the appellant to the Court at trial. 

   [8]The appellant’s affidavit of 3 March 2010 is to substantially the same effect. 

1. Secondly, the nature of the transaction pursuant to which the appellant’s daughter is said to have nominated Maryvell as purchaser of the restaurant in 2003, makes it inherently likely that plant and equipment which included substantial fixtures (in particular air conditioning works) were purchased pursuant to the nomination. 

1. Thirdly, the appellant’s subsequent self-serving statements are enmeshed in a series of blatant frauds.  In particular the evidence demonstrates:

(a)       that appellant forged a valuation which he exhibited to the June 2006 affidavit and falsely attributed on oath that valuation to the witness De Sanctis;

(b)      as his daughter ultimately acknowledged the appellant forged his daughter’s signature upon a caveat lodged with respect to the restaurant property;  and

(c)       he also forged a purported report from a food safety auditor, Anita Valhusic, which the witness Ms Valhusic denied signing and which the appellant falsely attributed on oath to Ms Valhusic.

1. Fourthly, the appellant was an evasive witness in cross-examination.  Amongst other things he refused to answer questions about his Statement of Affairs and about his personal taxation returns.  He also ‘took the fifth amendment’ and refused to answer questions about the report purportedly prepared by Ms Valhusic on the grounds that he might be incriminated. 

1. Fifthly, no documentary evidence of the purchase by the appellant of plant and equipment was produced to the Court. 

1. Sixthly, when requested by the liquidator to provide books of account in respect of Maryvell’s affairs in the course of the liquidation, the appellant failed and refused to do so. 

1. Seventhly, the appellant’s evidence was given no material support by that of his daughter, Mrs Patroungas.  Her evidence was entirely lacking in credibility.  She initially failed to disavow the forged signature upon the caveat and ultimately gave a patently untrue answer as to why she had failed to declare her own earnings from the restaurant for taxation purposes.  Despite being a taxation accountant by occupation, she asserted that her earnings from the restaurant did not reach the necessary threshold while acknowledging that her professional income during the same period exceeded the threshold.  Mrs Patroungas ultimately declined to answer questions about this issue on the grounds that she might be incriminated. 

1. Eighthly, there is an obvious reason why Mrs Patroungas might lie, namely the overwhelming directions of her father, who urged her to give particular answers during cross-examination at the trial. 

1. Ninthly, the failure of a taxation accountant to produce any documentation relating to substantial commercial transactions in which she was purportedly involved is itself a matter which must provoke sceptism.  Further, Mrs Patroungas was unable to identify any particular item of plant or equipment which she gave to her father. 

1. Tenthly, insofar as the appellant maintains that he rather than Maryvell was the owner of the restaurant business, he produced no taxation or other business records either consistent with his position or reflecting any interest on his part in the plant and equipment, whilst simultaneously asserting that the business was profitable and the source of ongoing income to herself. 

1. Eleventhly, I do not accept that there is any satisfactory evidentiary basis for the suggestions made in the grounds of appeal that Dinning was either ‘paid to let Velissaris down’ or ‘compelled Velissaris to swear a false affidavit’ or that Velissaris was ‘not given the chance to read it at all’. 

1. Twelfthly, the evidence as a whole supports the conclusion that the appellant manipulated the use of Maryvell.  Amongst other matters I instance the evidence of Mrs Patroungas that her father remained in control of the company during his bankruptcy and that at the time her grandmother was appointed in 2002 as a director of Maryvell she was 95 years old and did not read or write English. 

1. In summary, the conclusions of the trial judge are supported by the weight of the evidence: 

It is clear on the evidence that before the alleged gift in 2003 the plant and equipment was owned by Maryvell.  There is no evidence to the effect that any other entity or person acquired ownership of the plant and equipment whether at the time of the acquisition of the Property[9] or after, but before the alleged gift.  Accordingly and leaving aside the gift, I find that at all material times Maryvell was the owner of the plant and equipment.  The only disposition suggested was the gift.[10]  If there was no gift or disposition to the plaintiff Maryvell would continue to own the plant and equipment until its liquidation.

I have grave reservations about the gift.  The evidence of Mrs Patroungas in this regard is, like most of her evidence, unsatisfactory.  I find that the gift was not made.  First, there is no documentation of any kind.  No note.  No correspondence.  No financial record evidencing any gift, disposition or change in ownership.  As pointed out, this is remarkable given that Mrs Patroungas is a tax accountant.  Secondly, I do not believe Mrs Patroungas.  She was not a witness of truth, although she was placed in a very difficult position by her father.  Thirdly, there is adequate and sufficient documentary evidence (other than the 13 June 2006 affidavit) to the effect that even after the alleged gift or disposition, Maryvell remained as owner of the plant and equipment.  This is hardly surprising as there was simply no gift or disposition as alleged.  Fourthly, the alleged gift or transfer to the plaintiff of the plant and equipment by Maryvell has, despite opportunity, never been referred to before.  It is a total fabrication. [11] 

[9]Relevantly, Mrs Patroungas did not give evidence that either at the time of acquisition of the Property, at the time of settlement or at any time, she personally acquired the plant and equipment.

[10]See Velissaris v Dynami Pty Ltd & Zervas [2010] VSC 587, footnote 5, which states: ‘The plaintiff asserted that some of the plant and equipment was purchased, upgraded or replaced at a later time, but he presented no evidence at all as to the dates when such equipment was purchased (other than perhaps that it was in 2003 or 2004) and what its value was’.

[11]Velissaris v Dynami Pty Ltd & Zervas [2010] VSC 587, [42]-[43] (citations in original).

1. I turn then to the individual grounds of appeal which may be resolved against the above background. 

Ground 7

1. It is asserted the trial judge did not deal with the appellant’s case that he personally purchased much of the plant and equipment.  This is incorrect.  His Honour correctly observed that the appellant produced no financial records whatsoever corroborating this allegation and that it is directly contradicted by the appellant’s June 2006 affidavit. 

1. Insofar as the appellant contends that Maryvell never traded, this is again inconsistent with such financial records as are available and the June 2006 affidavit. 

1. The appellant draws attention to the fact that in the course of the trial he at one point told the judge he had brought in copies of personal income taxation returns.  When this issue was raised the trial judge asked the appellant to finish cross-examining Mr Fitzgerald (Maryvell’s liquidator) before dealing with it.  The appellant did not come back to the tax returns and the documents were never tendered in evidence.  They had not been produced or exhibited to any of the numerous affidavits the appellant tendered in the course of his own case.  Indeed, when asked in cross-examination whether he had lodged personal taxation returns for any year since 1993 the appellant refused to answer on the basis that this question related to his private affairs. 

1. On the appeal, the appellant asked this Court to receive in evidence his personal income taxation return for the year 2005-6.  The document was received in evidence subject to objection.  I do not ultimately accept that it should be admitted in evidence because:

(a)       the appellant had closed his case before he sought to re-open the issue of his tax returns;

(b)      the tax return in issue is not fresh evidence;

(c)       it does not refer to plant and equipment at all;

(d)      insofar as it refers to the appellant deriving income from the restaurant, this of itself proves nothing of relevance to his case;  and

(e)       having regard to the fabrication of other documentation established by the evidence, I do not accept that the document has been proven to be a genuine record simply by its production. 

1. In turn it follows I am not satisfied that:

(a)       the document is what it purports to be;

(b)      if it is genuine that it is of any material relevance;  and

(c)       that the appellant should in any event be permitted to place it before the Court at this stage of the proceeding, particularly having regard to the position taken by the appellant under cross-examination.  To allow it be produced now would be unfair to the respondents. 

1. I should add for completeness that if the taxation return were received in evidence it would not alter my conclusions on the facts. 

1. At the initial hearing of this appeal Mr Velissaris also produced four documents comprising invoices and demands for non-payment of fees for utility services supplied to the restaurant in or about 2006.  These documents are in fact to be found in the appeal book.  With respect, I am unable to see that the fact utility suppliers threatened to cut off various services to the restaurant at the time assists Mr Velissaris in his case.  Nor does the fact that some of the bills are directed to him personally prove or tend to prove that he owned the plant and equipment in dispute.  None of these documents are inconsistent with the evidence of the liquidator that when he inspected the premises on repeated occasions the restaurant was not trading. 

Grounds 8 and 9

1. The allegations that the liquidator was not entitled to sell the equipment face the same fundamental difficulty. 

Ground 10

1. The reasons of Master Efthim recorded under ‘Other matters’ on the making of the winding up order of June 2006 in respect of Maryvell, do not prove the appellant’s case or gainsay the proposition the liquidator was entitled to act on the best information available to him.  What they prove is that Master Efthim did not accept that the appellant was a witness of truth and reliability. 

Ground 12

1. For the reasons I have explained, ground 12 (which is quoted above) is contrary to the probabilities for reasons which I have already set out. 

Grounds 11 and 13

1. The attempts to disavow the affidavit of June 2006 made in grounds 11 and 13 must be rejected having regard to plain and comprehensive terms of that affidavit and the evidence of Mr Dinning. 

Grounds 14 and 15

1. The subsequent self-serving affidavits of the appellant relied on for the purposes of grounds 14 and 15 are entirely uncorroborated by contemporaneous documentation and have no probative value.

Ground 16

1. The fact that Maryvell not the business went into liquidation is a distinction of no assistance to the appellant.  It does not demonstrate that Maryvell did not conduct the business as trustee. 

Ground 17

1. The evidence of Mrs Patroungas should be rejected for the reasons I have already stated. 

Procedural fairness

1. I turn then to the issues of procedural fairness raised by the appellant.  I have read the whole of the transcript of the trial and I am not persuaded that the appellant was denied procedural fairness. 

1. I do not accept his Honour confined the appellant unfairly in the cross-examination of the defendants’ witnesses.[12]  Rather he extended considerable latitude to the appellant.  Moreover the fundamental deficiencies in the appellant’s case arise at heart not from the evidence of the defendants’ witnesses but from the inadequacy of the evidence called on his own behalf. 

   [12]Ground 5. 

1. In the course of the cross-examination of the liquidator by the appellant his Honour gave the following ruling:

I just want to read into the record that at this point after the cross-examination Mr Velissaris raised during the course of cross-examination that he is entitled to a fair trial.  He is entitled to a fair trial.  A fair trial is not an absolute concept.  A litigant is only entitled to a reasonable right to put his or her case to the court, present the case and the evidence accordingly.  And of course the court makes allowances and in many cases substantial allowances for litigants in person, and this is such a case.

The allowances do not include a licence in any way for a litigant in person to abuse or make unfounded allegations as Mr Velissaris has, allegations of collusion, collusion to defraud and this has been the case not only with this witness but other witnesses.  If it happens again I will reserve the right to terminate the cross-examination immediately.

1. There was no error in this approach. 

1. Likewise, I do not accept that a fair reading of the transcript demonstrates his Honour unfairly required the appellant to hurry up.[13]  His Honour was entitled to take reasonable steps to exclude irrelevancies and expedite the hearing.  No evidentiary issue has been raised upon appeal which was not fully canvassed before his Honour. 

   [13]Ground 6. 

1. Insofar as the refusal to allow the tenant and its director to be joined as parties at the conclusion of the hearing is concerned:[14]

   [14]Grounds 2 and 3. 

(a)       I do not accept that the appellant had no notice of the transfer of the plant and equipment to the tenant prior to the hearing. 

(b)      The defendants’ amended defences of 13 April 2010 specifically pleaded that the contract of sale of the premises showed the values of chattels as ‘nil’.  The fact that the defendants did not purchase the chattels was referred to in the amended statement of claim dated 27 April 2010.  The lease was discovered by the defendants on 3 September 2010; the lease was exhibited to the affidavit of Theodore Zervas dated 15 September 2010;  the lease was referred to in the defendants’ chronology prior to trial; and the lease was referred to in the witness statements filed on behalf of the defendants prior to trial.  I instance the witness statement of the liquidator:

I executed the lease at the offices of Stonnington & Zervas in the presence of Theo Zervas and his sister Betty Zervas on 19 March 2008.  The lease was between myself as liquidator of Maryvell and Stonnington Online Conveyancing Pty Ltd as tenant (‘the Lease’), and was prepared by my lawyers Tisher Liner & Co, on my instructions.  The Lease provided for inter alia for [sic] a rental of $5,000.00 per calendar month, however no rental was payable for the first month of the lease.  The lease was for a term of 6 months.

There was a hand written addition to the special conditions of the lease, namely clause 22.7 that reads that all the plant & equipment situate at the premises was sold to the tenant for the consideration of $1.00.  The reason for this is that it was uneconomic for me to do anything else with them.  I received a letter of advice from Bruce Teichert of Grays Asset Services that it was best that the items be abandoned and to leave them there on site, as opposed to relocating them and attempting to auction them, as there would be a negative net return.

Bruce Teichert sent a letter to me explaining this dated 15 February 2008.

At all material times the plant and equipment belonged to Maryvell, and I as the liquidator of Maryvell was empowered to do with them as I chose most fitting to do so.

(c)       The application to join the tenant and Mr Zervas was made on the last day of the trial immediately before final submissions.  It was entirely reasonable to refuse leave at this point in the trial.

(d)      Any claim against the tenant premised upon the appellant’s ownership of the plant and equipment must fail for the reasons I have already stated. 

Ground 4

1. For the reasons given by Whelan JA, I do not accept that it was inappropriate or beyond power to restrain the appellant from taking further proceedings without prior leave against the tenant and Mr Zervas in respect of the plant and equipment.  Such an order will not prevent the appellant from invoking the jurisdiction of the Court but will regulate his access to it in respect of matters which have already been determined by the Court. 

1. Ferguson J listed 21 previous cases centring on the appellant and the property

333 Sydney Road, Brunswick, in Re Velissaris.[15]  Unless restrained, there is a real prospect that the appellant will seek to re-litigate the issues relating to the ownership of the plant and equipment, which were determined adversely to him by Sifris J.

[15][2012] VSC 293 (4 July 2012).

1. The interests of justice require that the appellant not be permitted without some procedural check to re-litigate vexatious and oppressive claims specifically with respect to the Sydney Road property and the plant and equipment.[16]  Nevertheless for the reasons explained by Whelan JA it is appropriate to modify the terms of the order made by the trial judge.

   [16]Hunter v Leahy (1999) 91 FCR 214, 220;  Optquest Pty Ltd v Marchesi [2011] VSC 428;  Velissaris v Maryvell Investments (In Liq) (No 2) [2008] FCA 511; Civil Procedure Act 2010 ss 7–9.

Conclusion

1. I should add for completeness that I agree for the reasons stated by his Honour the trial judge that in any event the appellant did not substantiate the claim for loss and damage.  Nor did he establish that the respondents or either of them have had possession of the plant and equipment. 

1. For the above reasons I would dismiss the appeal save in respect of the restraint order imposed by Sifris J. 

WHELAN JA:

1. I agree with the judgment of Osborn JA. In this judgment I address the issues arising in relation to ground 4 of the Notice of Appeal.

Ground 4

1. In addition to the orders made dismissing the appellant’s claims, Sifris J made the following order (numbered 3): 

No further proceeding or process of any kind in the trial division of the Supreme Court of Victoria, including this proceeding, concerning Dynami Pty

Ltd, Betty Zervas, Theodore Zervas or Stonnington Online Conveyancing Pty Ltd ACN 096 995 053, Maryvell Investments Pty Ltd ACN 080 327 073 (in Liquidation), the property known as 333-335 Sydney Road Brunswick or the plant and equipment once used or located therein be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of a judge of the Court.

1. In the Notice of Appeal, after complaints concerning Sifris J’s refusal to join Theodore Zervas and Stonnington Online Conveyancing Pty Ltd (‘Stonnington’) as parties, the following appears:

4.To My Extreme Surprise I Have Noticed That On His Judgment/Orders Of 14/Dec./2010, Justice Sifris In Order (3) He INCLUDED Them, Into As Defendants, &That I Am Prevented Of Bringing Further Proceedings & Of any Kind Against Them, Except With The Leave of Court, AND I DO Hereby Submit That Justice Sifris IS Fully Wrong At Law And He IS For SURE Fully BIASED Against ME, And He Has Denied Me Any Fair Justice, And On Many Grounds.

1. Whilst the appellant’s complaint focuses on the inclusion of Mr Zervas and Stonnington, the issue of whether there is power to make such an order, given the decision in Commonwealth Trading Bank v Inglis & Anor,[17] is one which must be addressed.

   [17](1974) 131 CLR 311 (’Inglis’).

Inglis

1. In Inglis the Commonwealth Bank applied for an order pursuant to the inherent jurisdiction of the High Court to the effect that no legal proceedings should be instituted, or applications in existing proceedings made, or appeals lodged, by the respondents without the leave of a Justice of the Court.  The application was heard by Barwick CJ and McTiernan and Walsh JJ.  Walsh J died before judgment.  The judgment of the Court was delivered by Barwick CJ and McTiernan J. 

1. The Court observed:

The application is not framed so as to limit such future proceedings to proceedings of the same kind as those that have been previously brought or to proceedings against the applicant or against other specified persons who have already been sued by the respondents. It refers to any legal proceedings against any person.

Counsel for the applicant was unable to refer the Court to any authority for the making of an order of that kind in the exercise of the Court’s inherent jurisdiction.  We have been unable to find any reported decision or dictum which affirms the existence of the power to do so. [18]

[18]Ibid 313.

1. Under the High Court Rules there was a power to declare a litigant vexatious in Order 63 r 6.  It was conceded that the application could not have been brought under that Rule.  There was also a power under the Rules in Order 63 r 2 to stay a proceeding that was vexatious.  It was also accepted that the application did not fall under that Rule.

1. The judgment in Inglis asserted that there was no prior authority in Australia or England which, on analysis, supported the proposition that there was inherent power to impose a requirement that leave be obtained before bringing a proceeding.  The Court concluded that the only power to do that was under the specific statutory provisions dealing with vexatious litigants.[19]  The Court suggested that if such an inherent  power had existed then the specific provisions dealing with the declaration of a person as vexatious would have had the effect of restricting that inherent power.[20]

   [19]Ibid 314-5.

   [20]Ibid 318.

1. The conclusion reached was:

In our opinion, the Court should hold that it has no power to make an order, on the application of the present applicant, that no legal proceedings should be instituted by the respondents or either of them without leave of a Justice of the Court. [21]

[21]Ibid.

1. The Court made it clear that there was inherent power to exercise control over apprehended vexatious applications in an action which was pending.[22]  In that context reference was made to the English decision in Grepe v Loam.[23]  In that case orders restraining further applications had been made after judgment.  The High Court noted (without disapproval) that ‘[t]he applications were regarded as being made “in the actions”, although they were after judgment’.[24]

   [22]Ibid 319-20.

   [23](1887) 37 Ch D 168 (’Grepe’).

   [24]Inglis, 319.

1. The Court concluded:

In our opinion, we should hold that the Court has power to make an order in this application, in so far as the application relates to the bringing of applications in existing proceedings, but not otherwise. [25]

[25]Ibid 320.

Application of Inglis in Australia – Part 1

1. Roden J in the New South Wales Supreme Court had cause to refer to Inglis in Attorney-General v Wentworth.[26]  Roden J commented:

There are various means by which the Court can control proceedings before it, and protect its process from abuse.  It enjoys inherent powers, but these do not extend to the making of orders which would prevent a potential litigant from instituting proceedings without leave.  The relationship between the inherent powers and the statutory provision, and the history of the development of the latter, were considered and explained in Commonwealth Trading Bank v Inglis. [27]

Roden J emphasised the distinction between the initiation of proceedings and the taking of a step in a proceeding, which had been drawn in Inglis.[28]  

[26](1988) 14 NSWLR 481 (‘Wentworth’).

[27]Ibid 484.

[28]Ibid 491.

1. The relevant issue in Wentworth was whether proceedings which were in form interlocutory proceedings in a pending action, but which in substance sought substantive relief, were ‘proceedings instituted’ for the purposes of the vexatious litigant legislative provision applicable in New South Wales.[29]  Roden J held that they were.  He held that an application which was in form interlocutory may be properly characterised as, and treated as, the institution of a proceeding in substance.[30]

   [29]Ibid 492.

   [30]Ibid.

1. Inglis itself had recognised that restraints after judgment might properly be ‘regarded as’ being made in the action, and in Wentworth it was held, applying Inglis, that the substance of the application, not its form, was the matter to be considered.

1. In Hunter v Leahy[31] French J (then a judge of the Federal Court) was considering an application for leave to file proceedings for misleading and deceptive conduct and an application to set aside the order as a consequence of which that leave was purportedly required.  That order had been made by Sheppard J at the same time as he had made a sequestration order against the applicant.  Sheppard J’s order directed that the applicant, Mr Hunter, not be permitted to file in the Court any application or other document without leave of a judge.

   [31](1999) 91 FCR 214 (‘Hunter’).

1. French J analysed the proposed proceeding and reached the conclusion that Mr Hunter was setting out to re-litigate matters already decided against him.  He concluded that the application proposed to be issued was an abuse of process. 

1. The Federal Court Rules contained, in Order 46 r 7A, a rule equivalent to Rule 27.06 of this Court’s Rules, empowering the Registrar to refuse to accept or issue a document which appeared to be an abuse.  French J said that Order 46 r 7A ‘was not applicable because that rule only applies to a document which has been presented, whereas the order made by Sheppard J was prospective in character’.[32]

   [32]Ibid 219 [14].

1. French J referred to s 23 of the Federal Court Act, and to the Federal Court’s implied jurisdiction, and then to Inglis.  His reference to that case was introduced as follows:

It seems however that s 23 and the implied incidental power are not to be taken as authorising the making of an order as widely expressed as that made by Sheppard J. [33]

[33]Ibid 220 [16].

1. French J said the High Court in Inglis had recognised the Court’s inherent power to regulate vexatious applications in a pending action.  He referred to the decision in Wentworth, and to a decision of Finkelstein J on a different issue which had referred to Grepe.[34]  French J noted that in Grepe applications after judgment were considered to have been made ‘in the action’. 

   [34]Finkelstein J referred to Inglis and to Grepe in Horvath v Pattison [1999] FCA 924 where he followed Grepe and restrained the institution of applications to annul the applicant’s bankruptcies.

1. French J concluded:

I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to re-litigate the substance of matters already determined in proceedings which have been disposed of in the Court.  As in the Wentworth case the touchstone of the Court’s power must be substance rather than form.  I think therefore that although on the authority of Inglis, Sheppard J’s order was too widely cast, it can be recast to meet the difficulties posed by Mr Hunter’s continued attempts to relitigate the issue on which he has thus far been unsuccessful.  I therefore propose to vary the order of Sheppard J accordingly. [35]

[35]Hunter, 221 [17].

1. The authorised report does not set out the order which was then made, but the report[36] does.  The order made by French J was as follows:

The order made by Sheppard J of 19 July 1996 is varied so that no application or other document lodged by Lindsay Hunter at the Court shall be accepted without the leave of a judge where such application or other document is, in the opinion of the Registrar, related to the matter the subject of the judgment of Sheppard J given on 19 July 1996 or which names Luci Webb or any of the respondents in this application as a respondent.

[36][1999] FCA 1075.

1. It is necessary at this point to interrupt the review of the Australian authorities applying Inglis to refer to the position in the United Kingdom.

Treatment of Inglis in the United Kingdom

1. In Ebert v Venvil[37] the English Court of Appeal constituted by Lord Woolf, then Master of the Rolls, and Otton and Aldous LJJ. considered applications for leave to appeal by a plaintiff against whom orders had been made, including an order prohibiting him from issuing any new proceeding against a specified party on a specified subject matter.

   [37][2000] Ch 484 (‘Ebert’).

1. Lord Woolf delivered the judgment of the Court.  In that judgment the Court of Appeal first observed that there was no dispute about the Court’s inherent jurisdiction to prevent further applications being made without the leave of the Court in existing proceedings.  This had been ‘authoritatively decided’ in Grepe.[38]  Lord Woolf indicated that the controversial issue was whether there was jurisdiction to impose such a prohibition in relation to new proceedings.

   [38]Ibid 488.

1. Lord Woolf observed that it could ‘hardly be doubted’ that the Court ought to have that jurisdiction.  He then reviewed the history of Mr Ebert’s litigious activities.

1. The Court referred to the decision in Inglis, and to a decision from the Supreme Court of New Zealand, and quoted two long passages from the judgment in Inglis.

1. The suggestion in Inglis that courts had not previously taken the step of making orders to prevent the commencement of new proceedings, other than under vexatious litigation legislation, was revealed not to have been the case as a result of investigations undertaken by senior counsel who had appeared as amicus curiae before the Court of Appeal with the assistance of the Crown Office.  Those investigations had revealed that at least six orders restraining the institution of fresh proceedings had been made prior to the Vexatious Actions Act 1896 being passed.  Other orders made of a like kind since the passage of the legislation were also identified, although the Court pointed out that in relation to both categories of order (before and after the legislation) it was far from clear that the issue had ever been fully argued.

1. The Court of Appeal observed that the existence of the history revealed in the course of the proceeding before it, of which the High Court in Inglis had been unaware, meant that the approach in Inglis could not be ‘accepted uncritically’,[39] and the judgment then addressed the relevant issues ‘from a standpoint of principle’.[40]  The breadth of the inherent jurisdiction of any court to prevent its procedures being abused was reviewed, and the following conclusion was reached:

The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power.  We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings. [41]

The Court said that it was ‘firmly of the opinion’ that the orders made were ones which the Court had been entitled to make.[42]

[39]Ibid 496.

[40]Ibid.

[41]Ibid 497.

[42]Ibid 498.

1. The English Court of Appeal confirmed the position as described in Ebert, and clarified the procedures which ought to be followed, in Bhamjee v Forsdick.[43]

   [43][2004] 1 WLR 88 (‘Bhamjee’).

1. The Court in Bhamjee reviewed at some length the significant problems being visited upon litigants and the courts as a result of a ‘very small category of litigants’ who were ‘bombarding’ the courts with unmeritorious applications.[44]  The Court referred to the breadth of the power to prevent abuse and in that context adopted the following observation of Alderson B in Cocker v Tempest:

The power of each court over its own process is unlimited;  it is a power incident to all courts, inferior as well as superior;  were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.  The exercise of the power is certainly a matter for the most careful discretion …[45]

[44]Ibid 91.

[45](1841) 7 M & W 502, 503-4 (quoted at Bhamjee 92-3).

1. The conclusion in Ebert was endorsed in Bhamjee, and a cascading range of orders was prescribed.  That range began with an order of the kind made in Grepe, described as a ‘civil restraint order’.  There was then an order extending to fresh proceedings, described as an ‘extended civil restraint order’.  Then, a more extended order, referred to as ‘a new general civil restraint order’, was described.  Guidelines for the imposition of these orders were set out.[46]  This new approach to protective measures was said to be required not just to protect prospective litigants but to protect the resources of the courts themselves.[47]  The Court of Appeal endorsed the view, also advanced in Ebert, that this approach was bolstered by the civil procedure reforms which had been introduced in the United Kingdom under the Civil Procedure Rules.[48]

   [46]Bhamjee, 98-100.

   [47]Ibid 102.

   [48]Ibid 97.

Application of Inglis in Australia – Part 2

1. In Global Custodians v Mesh[49] Young J in the Supreme Court of New South Wales had before him an application for contempt constituted by threats made to opposing parties in litigation, which he found proved.  He then addressed the issue of (as he put it) what should be done about it.  An injunction was sought restraining the particular litigant from making further threats against people connected with another party to the proceeding and in that context reference was made to both Inglis and to Ebert.  Justice Young observed:

In Ebert’s case, an English Court of Appeal headed by Lord Woolf MR held that the High Court had not been sufficiently referred to authority when makings its decision and that the High Court’s decision should not be followed.  Even if that analysis of Inglis’ case is right, it is not a course that I can take in NSW. [50]

[49][2000] NSWSC 845 (‘Global Custodians’).

[50]At [35].

1. In SZDCJ v Minister for Immigration[51] Jacobson J in the Federal Court considered an order made by a Federal Magistrate.  The Magistrate had dismissed an application to review a decision of the Refugee Review Tribunal, and then ordered that no further such application by the applicant was to be accepted for filing without the leave of the Court.  Jacobson J overturned the Federal Magistrate’s decision on the substantive matter, but he dealt with the ancillary order suggesting that there had been power to make it under the equivalent of Order 46 r 7A (Rule 2.06 in the Federal Magistrates Rules) and also under the equivalent of s 23 of the Federal Court Act (s 15 of the Federal Magistrates Act).  No reference was made to the decision in Inglis.

   [51][2004] FCA 1500.

1. The Court of Appeal in Queensland considered the issue twice in April 2005.  The first decision was von Risefer v Permanent Trustee Co Ltd.[52]  The court in that case was constituted by McPherson and Keane JJA and Philippides J.  A few days later the Court of Appeal, constituted by Williams and Keane JJA and Helman J, delivered judgment in Goodwin v Goodwin.[53]

   [52][2005] 1 Qd R 681 (‘von Risefer’).

   [53][2005] QCA 117 (‘Goodwin’).

1. The judgment in von Risefer was delivered by Keane JA (as he then was), with whom the other members of the Court agreed.

1. In von Risefer a Notice of Appeal was struck out and the Court then turned to deal with an application by the defendants for an order prohibiting the plaintiffs from taking further proceedings against them without leave. 

1. Keane JA quoted the same passage from Alderson B about inherent jurisdiction which had been quoted in Bhamjee, referring to the fact that that principle had been recognised and applied in Australia.[54]  Keane JA quoted extensively from Inglis and then turned to the decision of French J in Hunter.  He said:

24.In Hunter v Leahy French J stressed that it was the substance and not the form of the proceedings that was of most importance.  An order could still be made to restrain the institution of new proceedings so long as it could be determined that those proceedings constituted an attempt to relitigate a dispute that had already been concluded.  As French J said:

‘I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court.’

25.I respectfully agree with these observations of French J. In my view, this Court has the power to protect the defendants against any further attempt by the plaintiffs to relitigate the same complaints in fresh proceedings as an aspect of the inherent jurisdiction to which I have referred or, possibly, in reliance on s 58 of the Constitution of Queensland 2001 (Qld).  It is, no doubt, a power to be exercised with the utmost caution; but this case affords a clear example of the kind of case in which it should be exercised to protect parties against whom baseless allegations of unlawful conduct have repeatedly been made from the expense, inconvenience and hurt involved in the further repetition of those allegations.

26.The first to fifth defendants ask that any restraint upon the plaintiffs be imposed so as to ensure that they will not be able to commence proceedings in any Queensland court without first obtaining the leave of the court.  The English Court of Appeal in Ebert v Venvil recognized that it was consistent with the principle which underlies Grepe v Loam orders to restrain ‘anticipated but unidentified proceedings’ in other courts which would otherwise cause serious loss to the defendants in those proceedings. [55]

[54]von Risefer, [14].

[55]Ibid [24]-[26].

1. In Goodwin there was a joint judgment of the three members of the Court.  The principles as set out by Keane JA in von Risefer were adopted and were summarised.  Two of those principles were said to be:

(d)This aspect of the Court’s inherent jurisdiction extends to the protection of successful litigants from the commencement of fresh proceedings substantially related to the subject matter of proceedings which have already been resolved against that litigant.

(e)This Court’s jurisdiction extends to restrain applications and proceedings in ‘anticipated but unidentified proceedings’ in other courts in Queensland. [56]

[56]Goodwin, [12].

1. The High Court in Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd[57] emphasised the importance of intermediate appellate courts not departing from seriously considered dicta of the High Court.[58]  It also emphasised the importance of intermediate appellate courts not departing from decisions of other intermediate appellate courts.  The Court said:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts of another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.  Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. [59]

[57](2007) 230 CLR 89 (‘Say-Dee’).

[58]Ibid [134].

[59]Ibid [135].

1. In Richards v Grant & Ors[60] Hollingworth J refused to make an order preventing an unsuccessful litigant from commencing any further proceedings against specified parties without the leave of the Court.  She did so relying upon the decision in Inglis.  It does not seem that the decision of French J in Hunter, the UK decisions in Ebert and Bhamjee, or, perhaps most pertinently, the two Court of Appeal decisions from Queensland in von Risefer and Goodwin were brought to her attention.

   [60][2006] VSC 387.

1. In Velissaris v Maryvell Investment[61] Gordon J in the Federal Court made an order that no further proceedings concerning Maryvell Investments Pty Ltd or the property situated at 333-335 Sydney Road Brunswick be accepted for filing from Mr Velissaris without leave.  The order was expressly said to be  made pursuant to Order 46 r 7A.  Her Honour relied upon the judgment in SZDCJ.  No reference was made to Inglis.  Her Honour made it clear that she was not making an order under the vexatious litigant provisions in Order 21.

   [61][2008] FCA 511.

1. In MZXOT v Minister for Immigration and Citizenship,[62] Heydon, Crennan and Kiefel JJ said:

… this Court’s power to control proceedings before it and make orders to do all that is necessary to effectuate a grant of jurisdiction to it does not include preventing a person from invoking the jurisdiction of the Court. [63]

Inglis was footnoted for that proposition.

[62](2008) 233 CLR 601.

[63]Ibid [197].

1. In February 2009 Robson J in Re Maryvell Investments Pty Ltd (in Liquidation)[64] made an order against Mr Velissaris in the following terms:

No further proceeding or process of any kind of the trial division of the Supreme Court of Victoria, including in this proceeding, concerning Maryvell Investments Pty Ltd (in Liquidation), the conduct of the liquidation, the liquidator or the property at 333 Sydney Road, Brunswick be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of the Court.

[64][2009] VSC 61.

1. Robson J made that order in the exercise of the Court’s inherent power to control and supervise its process and by reference to the Prothonotary’s power to refuse to seal an originating process where the Prothonotary considers that the proceeding would be an abuse.  In September 2010 Davies J dealt with an application for leave pursuant to the order which Robson J had made.[65]  The correctness of the orders which had been made by both Robson J and Gordon J were not doubted.

   [65]Re Maryvell Investments Pty Ltd (in Liquidation) (No 2) [2010] VSC 401.

1. In July 2009 Gray J in the Supreme Court of South Australia reviewed the authorities in both England and Australia, to which I have referred, in Manolakis v DPP (Cth).[66]  In substance, he adopted and followed the analysis of Keane JA in von Risefer.  He restrained a specified party from making any further application or taking any steps ‘including for the avoidance of doubt the filing or issuing of any new proceedings in this Court’ relating to ‘the complaints’ in a specified Notice of Appeal.

   [66][2009] SASC 193.

1. In NAB v Satchithanantham[67] the New South Wales Court of Appeal confirmed that there was nothing in Inglis which prevented that court from making orders restraining the filing and service of applications in a proceeding even after judgment in that proceeding.  Handley AJA, with whom McFarlane JA agreed, made the following observation in relation to Inglis:

In my judgement it would be a misuse of the doctrine of precedent to treat the language of Barwick CJ and McTiernan J in Inglis (above) as defining a fixed limitation on the scope of the court’s powers to prevent the abuse of its process.  There is every reason for treating the court’s powers as co-extensive with the scope for the abuse of its process. [68]

[67][2010] NSWCA 244 (‘Satchithanantham’).

[68]Ibid [35].

1. The third member of the Court in Satchithanantham was Sackville AJA.  He observed that the particular orders made might not be effective as they were confined to applications in the proceeding.  He observed that wider orders could have been sought under the Vexatious Proceedings Act 2008, perhaps implicitly accepting that otherwise wider orders could not have been made.[69]

   [69]Ibid [39]-[40].

1. Gray J returned to the issue in the Supreme Court of South Australia in December 2010 in Westwill Pty Ltd v Heath.[70]  After reviewing the conduct of a litigant named Mr Jones he indicated that the course he proposed to take was as follows:

I propose to restrain Mr Jones from making any further application or seeking to issue any other proceedings arising in any way or relating to the decision of Duggan J in Westwill v Heath, without the permission of the Court.  Mr Jones is to be restrained from making any further application or taking any steps, including the filing or issuing of any new proceedings in this court, in or out of or concerning any matters involving or touching upon or otherwise relating to the complaints the subject of the purported notice of appeal, dated 9 June 2010, without the permission of the court. [71]

[70][2010] SASC 358 (‘Westwill’).

[71]Ibid [44].

1. As to the relevant authorities, he referred to the analysis he had undertaken in Manolakis and said:

The High Court had occasion to consider these issues in Commonwealth Trading Bank v Inglis.  There the Court emphasised the distinction between the institution of new proceedings and those already before the court, holding that a court has no jurisdiction with respect to the former.  The basis of this distinction can be found in the gravitas of regulating a litigant’s conduct within an action, compared with that of impeding a person’s access to the court.  However, in both Attorney-General v Wentworth and Hunter v Leahy, it was said that the touchstone of the court’s inherent power to protect its processes from abuse, must be substance and not form.  It was for this reason that French J, as he then was, in the Federal Court in Hunter v Leahy, considered that Commonwealth v Inglis did not prevent the Court from ‘restraining the institution of proceedings which, in effect, seek to re-litigate the substance of matters already determined in proceedings which have been disposed of in the Court.’ Naturally, this is a power to be exercised with caution. [Citations omitted] [72]

[72]Ibid [38].

1. In Optquest Pty Ltd v Marchesi[73] Vickery J struck out a proceeding and then considered an application for an injunction restraining specified parties from commencing any further proceedings in relation to certain properties.  Vickery J referred to the position in England, and to the High Court decision in Inglis, and then adopted the approach of French J in Hunter.[74]  The order made by Vickery J was similar to that which had been made by French J, and was also relevantly similar to the orders made by Gray J in Monolakis and in Westwill.  It was as follows:

It is directed that the [specified persons] not commence or cause any other person to commence, any proceeding in this Court which seeks to re-litigate any of the issues determined by Hansen J in Marchesi v Vasiliou dated 5 June 2009, without the leave of a Judge of this Court. [75]

[73][2011] VSC 428.

[74]Optquest, [32]-[36].

[75]Ibid [38].

1. Finally, mention should be made of Levinge v State of Queensland.[76]  In that case, Reeves J was dealing with an application for leave to discontinue.  The respondent submitted that if leave were granted it should be on condition that no similar claim be brought in the future.  As matters transpired leave was not granted but Reeves J nevertheless addressed the proposed condition.  He referred to Inglis and also to the decisions in Wentworth, Hunter and MZXOT.[77]  He concluded:

… the authorities I have referred to above indicate that this Court does not have the power to impede [the applicants’] undeniable right to exercise the jurisdiction of this Court.  Since the proposed conditions, if imposed, would, in the circumstances outlined above … impede that right, I do not consider this Court has the power to impose them.

[76][2012] FCA 1321 (‘Levinge’).

[77]Ibid [61].

1. It does not seem that Reeves J was referred to the Queensland Court of Appeal decisions in von Risefer or Goodwin.

Analysis

1. Inglis was concerned with an application to restrain the institution of new proceedings in the widest of terms.  The High Court held that such an order could only be made under the applicable vexatious litigant legislative provisions.  The Court’s acceptance of Grepe means that the Court must be taken to have accepted that orders after judgment were capable of being ‘regarded as’ made in the action.  The dicta in Inglis confines the exercise of the inherent jurisdiction to the Grepe situation.

1. This Court must have due regard to the dicta in Inglis, but it cannot ignore the deficiencies in the material before the High Court, as pointed out in Ebert, and it is also bound to have due regard to two decisions of another intermediate appellate court, the Queensland Court of Appeal, on what is an issue of Australian common law.

1. But for Inglis, I would adopt the English position as set out in Ebert, and to the extent applicable in Australia in Bhamjee.  It seems to me that Inglis does preclude that course.

1. Inglis does not, however, preclude the adoption of the course taken in Hunter and adopted in von Risefer and in Goodwin, in my view.  Orders can be made in exercise of a court’s inherent jurisdiction to prevent abuse of its own processes so as to restrain the institution of fresh proceedings without leave, where those proceedings are in substance an attempt to overturn a judgment already given and re-litigate a matter already decided.

1. Such orders can properly be made by reference to the subject matter of the judgment the party is seeking to re-litigate, as was done in Manolakis, Westwill, and Optquest.

1. Like French J in Hunter, I think the proper basis for such orders is the inherent jurisdiction, not rules like Rule 27.06 which concern a court official’s consideration of a document put forward by a party.

Conclusion

1. An order restraining the appellant from seeking to re-litigate his claims concerning the plant and equipment of the restaurant was, in my view, one which ought to have been made, if there was power to make it.  The reasons for this conclusion are clearly set out in the judgment of Osborn JA.

1. In my view, however, the order made goes beyond what is appropriate to prevent re-litigation.  The order would potentially apply to proceedings having no connection to the plant and equipment which is the subject of Sifris J’s judgment.  I would vary the order to read:

The appellant, George Velissaris, is restrained from making any further application or taking any step, including the filing or issuing of any new proceeding, in this Court concerning or relating to the ownership of the plant and equipment once used or located at the property known as 333-335 Sydney Road Brunswick sold by the liquidator of Maryvell Investments Pty Ltd ACN 080 327 073 (‘Maryvell’) to Stonnington Online Conveyancing Pty Ltd (‘the tenant’), pursuant to clause 22.7 of the lease dated 20 March 2007 between

Maryvell and the tenant, without first obtaining the leave of a judge or associate judge of this Court.[78]

[78]As mentioned above, Robson J made a similar order to the one I would make here whereby his Honour restrained the appellant from attempting to relitigate the claims he had made in the proceeding before him relating to the conduct of the liquidation, the liquidator, or the property at 333 Sydney Road, Brunswick:  Re Maryvell Investments Pty Ltd (in Liquidation [2009] VSC 61. The order was made in these terms: ‘No further proceeding or process of any kind of the trial division of the Supreme Court of Victoria, including in this proceeding, concerning Maryvell Investments Pty Ltd (in Liquidation), the conduct of the liquidation, the liquidator or the property at 333 Sydney Road, Brunswick be accepted for filing by the Prothonotary from George Velissaris except with the prior leave of the Court.’

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