Vescio v Gabb

[2007] NSWSC 415

CITATION:	Vescio v Gabb [2007] NSWSC 415
HEARING DATE(S):	17 April 2007
JUDGMENT DATE :	17 April 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Second application for same relief refused.
CATCHWORDS:	EQUITY [332] – Equitable remedies – Injunctions – Interlocutory injunctions – Jurisdiction and generally- Repeated application – Further application for same relief after refusal may be entertained only if material change in circumstances.
LEGISLATION CITED:	Supreme Court Act 1970 s 85
CASES CITED:	Adam P Brown Male Fashions Pty ltd v Philip Morris Inc (1981) 148 CLR 170 Vescio v Gabb [2007] NSWSC 162
PARTIES:	Carmelo Michael Vescio (P) Ken Gabb (Protective Commissioner of NSW) (D)
FILE NUMBER(S):	SC 2165/07
COUNSEL:	In person (P) C M Zucker (S)
SOLICITORS:	In person (P) Lee & Lyons (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 17 APRIL 2007

2165/07 CARMELO MICHAEL VESCIO v KEN GABB (THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES)

JUDGMENT

1 HIS HONOUR: These are proceedings brought by the plaintiff, Carmelo Michael Vescio, against Ken Gabb, the Protective Commissioner of New South Wales. The defendant is the financial manager of Mr Vescio’s mother, Elisabetta Vescio, under the provisions of an order made by the Guardianship Tribunal on 27 January 2005.

2 The circumstance that gives the present application some urgency is that the mother’s property at 11 Outlook Drive, Figtree, is to be sold by auction by the defendant, the auction to take place tonight. The plaintiff by summons seeks an injunction restraining the sale of the property; an order to reinstate the operation of a caveat which he previously had on the property and for it to be extended; and an order that the plaintiff be re-granted possession of the property, he being a former resident of the property who was ejected under an order for possession obtained by the Protective Commissioner.

3 In addition to seeking these orders by summons, the plaintiff has today asked that these proceedings be tried by jury. The plaintiff faces a number of difficulties in obtaining relief, but in the forefront is that he sought relief in absolutely identical terms by summons 1650/07 in this Division. Those proceedings were heard by Gzell J on 1 March 2007 and the proceedings were dismissed: Vescio v Gabb [2007] NSWSC 162. In his reasons for judgment, his Honour explained why each of the orders sought could not be obtained.

4 I am not for a moment suggesting that I should have dealt with those proceedings in any way other than that in which his Honour did, but the difficulty for the plaintiff is that he did in fact pursue these matters before Gzell J and had his proceedings dismissed.

5 The dismissal by his Honour of proceedings seeking identical relief would preclude me, even if I were otherwise inclined, from entering upon adjudication of any of these matters. I do not need to make any close analysis as to whether any of the relief sought then (as now) was of a final or an interlocutory nature. To any extent that the orders were final, I should be precluded from entering upon the subject matter by the doctrine of res judicata. To any extent that the applications are interlocutory only, I am prevented from entering upon them by the principle that, while the Court has a power to entertain further applications in relation to interlocutory relief already adjudicated upon, it will not differ from the conclusion to which the Court first came unless a change of circumstances is shown: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 - 178.

6 The sale of the property is now even more imminent than it was when the matter was before Gzell J, but the sale was always contemplated, the decision to sell having been taken by the defendant as long ago as 2005 and delayed in its execution by the various litigation referred to by Gzell J and outlined by Latham J in the Common Law Division of the Court in her decision of 20 September 2006.

7 There simply is no basis upon which I could or should entertain these identical applications and come to a conclusion different from the conclusion come to by Gzell J.

8 So far as the question of a jury is concerned, this is not applied for in the formal way that would be necessary. However, as I have already explained to the plaintiff, juries are not used upon the equity side of the Court. The relevant provision in its present form is s 85 of the Supreme Court Act 1970, which provides that no matter shall be tried by jury in any Division of the Court unless the Court otherwise orders and that such an order ought not be made unless the Court is satisfied that the interests of justice require a trial by jury. I have explained to the plaintiff that trials in equity courts have taken place for centuries without a jury, in England, in Australia, and, indeed, even in the United States, where constitutional provisions commonly require the trial of common law issues by jury. Particularly bearing in mind the interlocutory nature of much, if not all, of the relief sought, there is nothing to take these proceedings out of the rule long observed on the equity side of this Court.

9 I am not making the orders yet in case the plaintiff wants to put something else to me, but the result will be that the proceedings must be dismissed and with costs.

…oOo…

10 Mr Vescio has put before me that there is a different body of evidence from that available to Gzell J. He draws attention particularly to material, annexed to his affidavits read on this application, in the form of learned writings concerning what should be regarded as caveatable interests and as to quasi contract, he asserting that he had a quasi contractual relationship with his mother that supported his case.

11 These matters were not strictly matters that could be led in evidence, rather than put by way of submission, but Mr Zucker, the defendant’s solicitor - in my view appropriately - refrained from objecting to them when the affidavits were read.

12 That material and the whole of the affidavit evidence that has been led by Mr Vescio and the written submissions that have been laid before the Court have been perused by the Court before it has come to its decision. One must have some sympathy with Mr Vescio, who has been removed from the property in which he lived by agreement with his mother and upon which it would appear that he expended considerable efforts over time in the maintenance of the property. However, nothing appears on the evidentiary material that would lead to the Court coming, or, indeed, permit the Court to come, to a conclusion, even on an interlocutory basis, different from that arrived at by Gzell J.

13 I make orders that the proceedings be dismissed and that the plaintiff pay the defendant’s costs of the proceedings.

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