FEDERAL COURT OF AUSTRALIA
Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371
PRACTICE AND PROCEDURE – Notice of motion by applicant – Notion to dismiss by respondents – Whether claim substantially identical to earlier dismissed claim – Where current claim so identical and motion to dismiss granted
Bankruptcy Act 1966 (Cth), s 116(2)(g)
Federal Court of Australia Act 1976 (Cth), s 31A
Migration Litigation Reform Act 2005 (Cth)
Trade Practices Act 1974 (Cth)
Federal Court Rules
Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434, considered
Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708, considered
QUD 525 OF 2005
SPENDER J
30 AUGUST 2007
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD 525 OF 2005 |
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BETWEEN: |
LYNNE MAREE ROGERS Applicant
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AND: |
ASSET LOAN CO PTY LTD ACN 107 746 798 First Respondent
ASSET LOAN COMPANY PTY LTD ACN 101 054 997 Second Respondent
PAUL ALEXANDER SYDNEY HARE Third Respondent
RUSSELL FRANK PERCIVAL Fourth Respondent
JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST Fifth Respondent
RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 Sixth Respondent
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SPENDER J |
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DATE OF ORDER: |
30 AUGUST 2007 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. Proceedings by Lynne Maree Rogers in QUD525/2005 be dismissed against each respondent.
2. The applicant pay the respondents’ costs of and incidental to the application and the Notices of Motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
QUD 525 OF 2005 |
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BETWEEN: |
LYNNE MAREE ROGERS Applicant
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AND: |
ASSET LOAN CO PTY LTD ACN 107 746 798 First Respondent
ASSET LOAN COMPANY PTY LTD ACN 101 054 997 Second Respondent
PAUL ALEXANDER SYDNEY HARE Third Respondent
RUSSELL FRANK PERCIVAL Fourth Respondent
JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST Fifth Respondent
RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 Sixth Respondent
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JUDGE: |
SPENDER J |
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DATE: |
30 AUGUST 2007 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 I am presently concerned with two Notices of Motion filed in the principal proceedings between Lynne Maree Rogers v Asset Loan Co Pty Ltd & Ors, being proceedings QUD525/2005.
2 Before dealing specifically with those Notices of Motion, it is helpful to set out the history of the matter.
3 The proceedings were last before the Court on 5 December 2005, when I heard an interlocutory application for an injunction restraining one of the respondents in these proceedings from taking possession of property. I made no orders on that date, and adjourned the application pending the outcome of proceedings in the New South Wales Supreme Court.
4 On 5 December 2005, I declined to reinstate proceedings QUD224/2004, which proceedings were brought by Gregory Eric Rogers, and which had been dismissed.
5 Subsequent to 5 December 2005, no step was taken in proceedings QUD525/2005. On 4 July 2006, that is to say, more than six months after the events on 5 December 2005, the file in these proceedings QUD525/2005 was closed due to inaction.
6 On 11 August 2006, the file was reopened when the applicant filed a lengthy Statement of Claim of some 705 paragraphs over 70 pages. That Statement of Claim is substantially the same as had been filed by Mr Gregory Rogers in proceedings QUD130/2006.
7 The first Notice of Motion of which I am concerned was filed on 19 September 2006 by Mrs Rogers. The Notice of Motion sought directions that “a summary judgment hearing take place as a Defence had not been filed in the application within the time period set out in the Federal Court Rules”, as well as various other orders.
8 The second Notice of Motion is one filed by the respondents on 20 September 2006 seeking the applicant’s proceeding be dismissed, or, in the alternative, that they be permanently stayed, together with costs.
9 It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant’s husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings.
10 The gravamen of the complaints in the present Statement of Claim are essentially a replica of claims made by the applicant’s husband in the earlier proceedings.
11 Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 was concerned with applications for relief by Mr Rogers, who sought various orders, including interlocutory relief restraining the respondents from exercising a power of sale, and in respect of a number of loan agreements, deeds of settlement, mortgages, and other instruments relating to various properties.
12 Greenwood J found, as the respondents in that proceeding had submitted, that the majority of Mr Rogers’ claims for final relief involved claims that related to the legal or beneficial interest of the applicant in property which vested in the trustee in bankruptcy, and accordingly in respect of which the applicant had no standing to institute legal proceedings pursuant to s 116(2)(g) Bankruptcy Act 1966 (Cth) (the Bankruptcy Act):
(g) any right of the bankrupt to recover damages or compensation;
(i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt;
…
13 In those proceedings, Greenwood J held, at [48]:
... The alleged contraventions of the Trade Practices Act 1974 (Cth) which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee.
14 His Honour also concluded that a claim by Mr Rogers for interlocutory relief in the form of “an order that the respondents do not harass, intimidate or coerce the applicant, his family or neighbours” was not a claim called in aid of a claim for final relief within the scope of s 116(2)(g) of the Bankruptcy Act.
15 After the judgment of Greenwood J, Mr Rogers filed an Amended Statement of Claim on 19 June 2006, seeking, in conformity with observations of Greenwood J, to formulate a Statement of Claim so as to plead claims coming within the exemption of s 116(2)(g) of the Bankruptcy Act.
16 On 7 December 2006, Collier J held that the proceedings by Mr Rogers in QUD130/2006 commenced by application filed 7 April 2006 by Mr Rogers, and in which the Amended Statement of Claim was filed on 19 June 2006, be dismissed with costs.
17 Her Honour held that in respect of each of the applicant’s claims, the applicant either did not have standing, or the claims were not actionable in the Federal Court, or the pleadings were deficient. Her Honour held that the applicant should not be given a further opportunity to replead, and dismissed the applicant’s application.
18 The earlier proceedings by Mr Rogers, namely QUD224/2004, was the subject of orders by me on 6 October 2005. In that action, the Court ordered:
1. The action QUD 224/2004 is deemed abandoned by operation of s60(3) of the The Bankruptcy Act 1966 (Cth).
2. The proceeding is struck out.
3. No order as to costs.
19 The Statement of Claim relevant to the present motions seeks to canvass much of the material the subject of the orders of the Court in the previous proceedings.
20 Something of the flavour of that Statement of Claim can be gleaned from the allegations in par 25 that the third respondent:
Has a propensity to engage in sophisticated well-developed “stings”, and has previously been involved in scams …
21 Paragraph 27 of the Statement of Claim says:
Hare bragged to the applicant’s husband that he has been in hundred’s [sic] of court cases and never lost.
22 The Statement of Claim pleads, at par 39, concerning the fourth respondent:
Percival was married to Leanne Percival who was – is a director of the Sixth Respondent. Leanne Percival left Russell Percival when she found out that he had burgled the applicant’s husband’s home in company with his young Asian student girlfriend.
23 Of the fifth respondent, par 43 of the Statement of Claim, pleads:
Judith Hare forged a document that purported that she signed it on 3 October 2003 authorising the applicant’s husband to buy a property in Palmwood Drive ((see Para 316) for herself and the Sixth Respondent.
24 Under headings labelled “Count 1” down to “Count 29”, the Statement of Claim pleads various causes of action mainly under the Trade Practices Act 1974 (Cth).
25 The relief sought by Mrs Rogers is:
705 The sum of $45,000,000.00 for personal injury, harm or wrongs or such amount or other orders determined by the court.
705a Orders declaring all loan agreements void
705b Orders varying all loan agreements
705c Orders declaring all mortgage documents void
705d Orders varying all mortgage agreements.
705e Orders directing all cash paid for interest, costs, outlays in the transactions be returned.
705f Orders compelling the respondents to lift any caveats.
705g Orders that the respondents return all land, houses, property to the applicant or her husband.
705h. Orders that the respondents surrender all cash or other considerations obtained by the sale of property in these transactions to the applicant or her husband.
705i Orders for punitive damages
705j. Orders that protect the applicant, her husband and her children from retribution, harassment or intimidation by the respondents.
705k Orders declaring that interest need not be paid.
705l Orders varying the amount of interest that has to be paid
705m Orders that the costs of the applicant be paid.
705n Orders that the respondents publish an apology to the applicant and her family in newspapers in every capital city.
705o Orders that the respondents advertise in daily papers with the result of the court hearing for the benefit of any other potential litigants – borrowers.
705p Orders that the home at 13 – 15 Moreton Street, Toogoom be transferred to Greg Rogers from Asset Loan Co Pty Ltd.
705q Orders that all property at Robert Street, Hervey Bay be transferred to the applicant or her husband.
705r Orders that the respondents lift their caveat on 2 Crown Street, Fingal Head so that a new loan can be settled to pay out G E Mortgage Solutions.
705s Orders that the respondents carry the apology and the orders of the Federal Court on each and every one of their websites for a period of two years.
705t Orders that the respondents publish an apology on their website www.GregRogers.net for 10 years.
706 The applicant seeks any other orders that the court deems fit as will compensate the applicant and her family from the conduct of the respondents pursuant to the Trade Practices Act.
26 While there are some differences, this Statement of Claim is, in essence, the same document filed by Mr Rogers in proceedings QUD130/2006.
27 The first Notice of Motion by Mrs Rogers was made returnable on 12 October 2006, and sought orders:
1. Directions
2. Orders that a Summary Judgment hearing take place as a Defence has not been filed in the application within the time period set out in the Federal Court Rules.
3. Orders requiring the respondents to remove liens over two motor vehicles that are the subject of the Statement of Claim filed in this matter pursuant to a Deed dated 4 August 2004.
4. Orders that the respondents themselves or their agents, not harass, stalk, intimidate or put pressure on the applicant and her family having regard to conduct outlined in the Statement of Claim and the affidavits filed.
5. Orders for Discovery
6. Orders that the respondents pay the applicant’s costs in the motion and proceedings.
7. Any further orders that the court deems fit.
28 That Notice of Motion does not, in turn, seek summary judgment in default of filing of a defence. What is sought in the prayer for relief number 3 does not appear to be included in any of the relief claimed in the Statement of Claim. The prayer for relief number 4 extends to the applicant’s family.
29 The Notice of Motion filed by the six respondents on 20 September 2006 sought orders:
1 That the Applicant’s proceeding against the Respondents be dismissed.
2 Alternatively, that the Applicant’s proceeding be permanently stayed.
3 That the Applicant pay the Respondents’ costs of and incidental to the proceedings to be taxed and paid forthwith.
30 Relevant to the proceedings in this matter on 5 December 2005 was the circumstance that there were relevant matters on foot in the New South Wales Supreme Court on 6 December 2005.
31 On 6 December 2005, despite the respondents agreeing by consent to the judgment of the New South Wales Supreme Court being set aside, there was no appearance by or on behalf of Mrs Rogers before the New South Wales Supreme Court on 6 December 2005. Those proceedings were adjourned to 12 December 2005.
32 On that day, Mr Rogers appeared before the New South Wales Supreme Court on behalf of his wife, and notwithstanding that counsel for the respondents advised the Court that the respondents consented to the judgment previously made in the New South Wales Supreme Court being set aside, Mr Rogers, on his wife’s behalf, moved the Court for orders that Mrs Rogers’ application be dismissed.
33 In consequence, on 12 December 2005, the New South Wales Supreme Court struck out Mrs Rogers’ summons and ordered that she pay the respondents’ costs of the hearing on 6 and 12 December 2005.
34 As noted above, this file was closed on 4 July 2006 because no action had been taken for six months. It was only after the publication of that action by the registry that the voluminous Statement of Claim by Mrs Rogers was filed on 11 August 2006.
35 My conclusions can be summarily stated.
36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708.
37 I have, in addition, had regard to two affidavits of Lynne Rogers filed on 19 September 2006, and the two affidavits of James Sean Whittle, a solicitor for the respondents, which was filed, in Court, on the hearing of the two motions.
38 Notwithstanding the voluminous material in the Statement of Claim, the concern of Mrs Rogers in these proceedings as at December 2005 was directed at obtaining orders in relation to property at Fingal in New South Wales, which had been the subject of orders of the New South Wales Supreme Court in the matter 5702/2005.
39 In the proceedings before me, Mrs Rogers alleged that the respondents were seeking to enforce an improperly obtained consent judgment and writ in respect of the Fingal property. The respondents acknowledged that the judgment entered in the New South Wales Supreme Court did not accord with the terms upon which the respondent in the New South Wales matter, namely Mrs Rogers, consented to judgment being entered against her.
40 I was informed that Mrs Rogers had applied for that judgment to be set aside, and I was told by the respondents that they had agreed to consent to that judgment being set aside.
41 There was no agreement or acknowledgment by or on behalf of the respondents that they would consent to a variation of the judgment in the New South Wales Supreme Court so as to accord with the terms upon which Mrs Rogers had consented to judgment being entered against her.
42 It is in that context that the conduct of Mr Rogers, on behalf of his wife, on 12 December 2005, has to be judged.
43 Mr Rogers is in error when he asserted, as he did on 12 October 2006, that:
The solicitors for the respondents undertook to, your Honour, not to set aside that fraudulent judgment, but to place in lieu of that judgment, the correct judgment that the deed anticipated. (transcript of proceedings, p9).
44 Looking at the matter broadly, the allegations of Mrs Rogers in the Statement of Claim filed in proceedings QUD525/2005, are substantially the same as the allegations set out in Mr Rogers’ Amended Statement of Claim in the matter QUD130/2006 filed by him in that proceeding on or about 20 July 2006. That Further Amended Statement of Claim comprised some 706 paragraphs.
45 Having regard to the detailed consideration of the allegations in Mr Rogers’ proceedings, QUD130/2006, it is right to order that these proceedings by Lynne Maree Rogers against each of the respondents be dismissed, and that the applicant pay the respondents’ costs of and incidental to those proceedings and the Notices of Motion.
46 In addition to the reasons contained in Collier Js reasons for judgment in proceedings QUD130/2006, it should be noted that by a deed of settlement dated 4 August 2006, Mrs Rogers acknowledged that loan moneys borrowed by Mr Rogers and Living Space Holdings Pty Ltd from Asset Loan Company Pty Ltd had been secured by, amongst other things, guarantees provided by Lynne Rogers. Mrs Rogers had provided security and the registered mortgagee was entitled to pursue its rights pursuant to that mortgage.
47 It seems to me plain that the present Statement of Claim has to be seen against the deliberate decision on Mrs Rogers’ behalf on 12 December 2005 to ask the New South Wales Supreme Court to dismiss her application in respect of the judgment.
48 It is true that the judgment, as recorded, involved a typographical error, which does not reflect the consent given by Mrs Rogers to the making of that judgment, but the offer by the respondents in that proceeding to have the judgment set aside was not acceded to by Mrs Rogers.
49 Having regard to the entirety of the material, it is appropriate to order that the application by Lynne Maree Rogers in QUD525/05 be dismissed with costs.
50 It follows that the relief sought by her Notice of Motion filed 19 September 2006 is not granted.
51 I proceeded in this matter on the basis of O 20 r 2 of the Federal Court Rules. That rule provides the Court with the power to stay or dismiss proceedings generally, or in relation to any claim for relief in the proceeding where it appears:
(a) No reasonable cause of action is disclosed;
(b) The proceeding is frivolous or vexatious; or
(c) The proceeding is an abuse of the process of the Court.
52 I have proceeded under O 20 r 2 rather than under s 31A of the Federal Court of Australia Act 1976 (Cth). That section was inserted by the Migration Litigation Reform Act 2005 (Cth). It applies to all cases commenced on or after 1 December 2005.
53 The Explanatory Memorandum to the amendment identifies that the “no reasonable prospects of success test” is designed to allow the court greater flexibility in giving summary judgment than the previous “no reasonable cause of action” test.
54 According to the Explanatory Memorandum, the purpose of s 31A was to introduce a lower standard for summary dismissal.
55 The application by Mrs Rogers was filed two days before s 31A came into effect. I have therefore proceeded under O 20 r 2 which tests are said to be more stringent.
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I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. |
Associate:
Dated: 30 August 2007
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Applicant appeared by telephone. Friend of the Court, Gregory Rogers, made submissions on her behalf. |
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Counsel for the Respondent: |
C Coulsen |
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Solicitor for the Respondent: |
Whittle Lawyers |
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Date of Hearing: |
12 October 2006 |
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Date of Judgment: |
30 August 2007 |
