Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Proietti v Proietti (No 4) [2023] NSWCA 251 Hearing dates: On the papers Date of orders: 20 October 2023 Decision date: 20 October 2023 Before: White JA Decision: Applicant's notice of motion filed 28 September 2023 is dismissed Catchwords: CIVIL PROCEDURE – Teoh direction – Referral of further motion seeking to reagitate matters determined in prior proceedings and to set aside final orders to Judge in Chambers for consideration of summary dismissal – Where orders sought in motion irreconcilable with prior judicial determinations of applicant's claim – Whether motion ought to be summarily dismissed as abuse of process – Motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 63(3)(a) Conveyancing Act 1919 (NSW0, s 66G Uniform Civil Procedure Rules 2015 (NSW), r 36.16(4) Cases Cited: DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 Hamod v New South Wales [2011] NSWCA 375 Proietti v Proietti [2022] NSWSC 875 Proietti v Proietti [2022] NSWCA 234 Proietti v Proietti [2023] HCASL 15 Proietti v Proietti [2023] NSWCA 76 Proietti v Proietti [2023] NSWCA 132 Proietti v Proietti (No 3) [2023] NSWCA 199 Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 Category: Procedural rulings Parties: Philip Proietti (Applicant) Peter Proietti (First Respondent) Ian Colwell Miller and Peter Joseph Dominello (Court Appointed Trustees) (Second Defendant) Representation: Applicant in person File Number(s): 2022/217751 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. HIS HONOUR: Two brothers, Philip Proietti and Peter Proietti, have been in dispute in relation to a family home which they inherited as tenants in common following the death of their mother. Peter Proietti's application for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW) was upheld by Kunc J on 30 June 2022 (Proietti v Proietti [2022] NSWSC 875). Philip Proietti appealed from that decision. The appeal was dismissed on 17 November 2022 (Proietti v Proietti [2022] NSWCA 234). Mitchelmore JA gave the leading judgment. Basten and Griffiths AJJA concurred in her Honour's reasons. 2. One ground of appeal was that Philip Proietti, who had represented himself before the primary judge, had been denied procedural fairness. That ground was rejected for reasons given by Mitchelmore JA at [69]-[83]. 3. A claim that the primary judge was biased was also rejected (at [90]-[98]). Other claims as to the merits of the primary judge's determination that orders should be made for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act were also rejected. 4. Philip Proietti sought special leave to appeal to the High Court of Australia on 8 December 2022. His special leave application contended that the proceedings at first instance were conducted unfairly. Reliance was placed on decisions of this Court in DC v Secretary, Department of Family and Community Services & Ors [2017] NSWCA 225 (at [98]) and Hamod v New South Wales [2011] NSWCA 375 (at [309]-[312]). 5. Special leave was refused (Gordon and Steward JJ): Proietti v Proietti [2023] HCASL 15. The High Court held that the Court of Appeal's decision was plainly correct. 6. On 5 April 2023, Philip Proietti sought a stay of orders made for the issue of a writ of possession of the property. He also sought the setting aside of the Court of Appeal's orders of 17 November 2022 pursuant to UCPR r 36.16(4) and s 63(3)(a) of the Civil Procedure Act 2005 (NSW). He did so notwithstanding that the High Court had refused special leave to appeal from that decision. That application was rejected by Ward P and Adamson JA on 21 April 2023 (Proietti v Proietti [2023] NSWCA 76). 7. Costs of these various unsuccessful applications are to be paid from Mr Philip Proietti's entitlement to a share of the proceeds of sale of the property in question. 8. Three days later, on 24 April 2023, Mr Philip Proietti filed a further notice of motion again seeking a stay of the writ of possession and the setting aside of the orders made in the Equity Division and in the Court of Appeal. 9. On 1 May 2023, the Registrar of the Court of Appeal made a direction that the applicant show cause why a direction should not be made along the lines of the direction made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. In Teoh v Hunters Hill Council (No 4) this Court held that it had an inherent power to protect itself and prevent an abuse of process where repeated claims based upon the same materials had been dismissed, by prohibiting a claimant from being able to proceed on a further application without satisfying a judge in Chambers that the material filed warranted a further hearing. 10. On 14 June 2023, Ward P and Adamson JA dismissed the notice of motion filed 24 April 2023 and a Teoh direction was made (Proietti v Proietti [2023] NSWCA 132). Their Honours ordered: (1) Dismiss the notice of motion filed on 24 April 2023 with costs, such costs to be on an indemnity basis and paid out of the applicant's share of the net proceedings of sale of the property at Marsfield in respect of which the Court has appointed trustees for sale. (2) Order that if Mr Philip Proietti files any further application against Mr Peter Proietti or the Court-appointed trustees in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, stay of execution or appeal from the orders of Kunc J dated 7 July 2022, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Philip Proietti should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process. 1. On 24 July 2023, Mr Philip Proietti filed a yet further notice of motion seeking a stay of Kunc J's orders of 7 July 2022 and an order setting aside the orders of the Court of Appeal of 17 November 2022 and an order setting aside the orders of Ward P and Adamson JA of 14 June 2023. 2. On 29 August 2023, Leeming JA dismissed that notice of motion (Proietti v Proietti (No 3) [2023] NSWCA 199). 3. Nothing daunted, on 28 September 2023, Mr Proietti filed a notice of motion seeking the following orders: "1. An interlocutory injunction of the disposal of the property, pending a stay and setting aside of the relevant orders. 2. Any Teoh procedure that is to be followed, be done urgently, so as to enable a hearing on the matter before transfer of title or the distribution of proceeds to the beneficiaries." 1. On 5 October 2023, Ward P nominated me to determine in Chambers whether the Court should fix a new return date and notify the parties in relation to that notice of motion, or whether Philip Proietti should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the notice of motion. On 5 October 2023, my Associate sent a letter to Mr Philip Proietti which included the following: "Justice White notes your affidavit of 25 September 2023, which contains submissions as to why your application in your notice of motion should not be summarily dismissed and notes that you seek expedition of the "Teoh procedure". His Honour requests that you advise me whether you wish to supplement that affidavit with any other materials, and if so provide such materials within 14 days or such earlier time as is practicable for you. If any such further materials are less than twenty pages in length they may be emailed to me. If they are of greater length they should be filed in the registry. If any such further materials are filed in the registry would you please advise me by email. If you do not wish to provide any further materials would you please advise me of that fact." 1. In response to that correspondence, Mr Philip Proietti advised that he did not wish to provide the Court with other supplementary material, but summarised the materials on which he relied. This included earlier materials that had already been considered in the various earlier applications before the Court. He also relied upon his affidavit of 25 September 2023, the substance of which was again to rely upon s 63 of the Civil Procedure Act 2005 and r 36.16(4) of the UCPR. He again referred to principles concerning the fair procedure to be provided to a self-represented litigant, citing DC v Secretary, Department of Family and Community Services [2017] NSWCA 225, as he had done in his application for special leave to appeal to the High Court. He submitted that the order of Ward P and Adamson JA that made the Teoh direction was incorrect. No application for special leave to appeal from the orders of Ward P and Adamson JA has been filed. The direction is binding. He submitted that no court or judge had addressed the issues that he had raised in regards to a denial of a fair procedure at trial. That contention is manifestly groundless. It was addressed in the reasons of Mitchelmore JA, with whom Basten and Griffiths AJJA agreed, which was the subject of the unsuccessful application for special leave to appeal to the High Court. 2. No new issue is raised in Mr Philip Proietti's notice of motion. It is an abuse of process. 3. For these reasons I order that the applicant's notice of motion filed 28 September 2023 be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2023