FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305

PRACTICE AND PROCEDURE – motion for summary dismissal of application – where no reasonable cause of action disclosed – application dismissed – motion that affidavit be removed from file pursuant to O 14 r 8 – motion that applicant’s proceedings be declared vexatious and an order be made under O 21 r 1 or r 2 

Australian Securities and Investment Commission Act 2001 (Cth) ss 12 CA-CC, 12 DA, 12 DJ, 12 GF, 12 GH

Bankruptcy Act 1966 (Cth) s 116(2)(g)

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules O 1 r 8, O 14 r 1, O 14 r 8, O 21 r 1, O 21 r 2, O 21 r 3,

Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 cited

Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660 cited

Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 cited

Cox v Journeaux (No. 2) (1935) 52 CLR 713 cited

Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545 applied

Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 cited

White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited

Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55 cited

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 applied

Ramsey v Skyring (1999) 164 ALR 378 cited

National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 cited

Granich and Associates v Yap [2004] FCA 1567 cited

Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited

GREGORY ERIC ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE, RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2, SEAN WHITTLE, ROBERT EDWARD BORBIDGE and JENNY PURCELL

QUD362 of 2007

LOGAN J

21 AUGUST 2008

BRISBANE

THE COURT ORDERS THAT:

1.                  Leave be granted to the Respondents to:

(i)                  amend their notice of motion filed on 12 November 2007 in the terms set out in their notice of motion filed on 4 December 2007;

(ii)                read, in support of the notice of motion as so amended, the affidavit of Mr Whittle filed on 4 December 2007.

2.                  The application filed on 1 November 2007 be dismissed.

3.                  The affidavit of Mr Rogers filed on 1 November 2007 be removed from the court file.

4.                  Otherwise and insofar as the respondents’ notice of motion as amended seeks orders under O 21 r 1 and r 2 or what is described as the “inherent jurisdiction” of the Court, that notice of motion is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Gregory Eric Rogers (“Mr Rogers”) is a serial litigant in this Court.

2                     It is not the frequency per se of Mr Rogers’ appearance in the Court’s lists that provides the occasion for this judgment, for there is no quota on the number of justiciable grievances a person may bring to court. Rather, it is the frequency of his seeking to reagitate matters said by the Respondents in the present proceeding previously to have been decided against him, in which one finds its occasion.

3                     As a consequence, the Respondents originally sought the following relief:

1.                  that the proceeding be stayed or, alternatively, dismissed;

2.                  pursuant to O 21 r 2 of the Federal Court Rules, that:

(i)                  Mr Rogers not, without the leave of the Court, institute any proceedings against the Respondents in the Court; and

(iii)               any proceedings instituted by Mr Rogers against the Respondents before the making of these orders not be continued by him without the leave of the Court.

3.                  pursuant to O 14 r 1, that the affidavit of Mr Rogers filed in these proceedings on 1 November 2007 be taken off the file.

4                     Later, after I had reserved my decision, the Respondents, in support of the relief sought in subparas (i) and (ii) of para 3(b), came additionally to seek to rely upon:

(a)                O 21 r 1 of the Federal Court Rules; and

(b)               the inherent jurisdiction of the Court.

5                     At the same time, the Respondents sought to rely upon further evidence from the Seventh Respondent, Mr Whittle. Because Mr Rogers had not had the opportunity to consider the written outline of submissions in respect of the proposal to enlarge the basis for the relief claimed against him or to reflect upon the contents of the further affidavit in light of those submissions, I made directions for the later filing by him of written submissions on these subjects and whether the orders sought ought to be made, and for the filing of a submission in reply by the Respondents.

6                     Having considered the written submissions consequentially filed, it seems to me that leave to rely upon this further evidence ought to be granted and that it is in the interests of justice also to consider the further bases upon which the relief in para 3(b) is sought. The further evidence concerned relates to events that occurred after I reserved judgment. Those events are, in my opinion, relevant to the relief sought by the Respondents. The further bases do no more than raise issues of law which Mr Rogers has had the opportunity to consider when making his written submissions.

7                     The Respondents submitted that it was relevant also to take into account, as part of the background to their application, litigation that Mr Rogers’ wife, Lynne Maree Rogers (“Mrs Rogers”) had come to institute in the Court. Having regard to the events and proceedings listed in the chronology below and to an observation made by Spender J in one of those proceedings that: “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”; Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 at [9], I agree.

8                     By coincidence, in the ordinary operation of this Court’s docket system, it has fallen to me (in QUD375/2007) to decide whether to grant to Mrs Rogers leave to appeal in respect of some of her litigation namely, proceeding QUD173/2007, Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660, 1 November 2007, Collier J. There was no objection made to my having each matter. Nonetheless, I have expressly considered whether, in light of that coincidence and the conclusion reached by me in the preceding paragraph, I ought not to hear one of the applications made with respect to Mr and Mrs Rogers’ respective proceedings with the other being transferred to another judge to hear and determine. In my opinion, the rules of natural justice do not require that course to be taken.

9                     In the substantive application filed in this proceeding Mr Rogers seeks the following relief:

(a)                orders under s 12GF of the Australian Securities and Investment Commission Act 2001 (Cth) (“ASIC Act”) being damages for “psychological stress, pain and suffering or mental damage” for breaches of the following sections of the ASIC Act:

(i)                  unconscionable conduct – s 12CA-CC;

(ii)                undue harassment and coercion – s 12DJ;

(iii)               deceptive and misleading conduct – s 12DA;

(Mr Rogers relies upon s 12GH of the ASIC Act – conduct by directors, employees or agents.)

(b)               any other orders that the Court deems fit.

10                  In my reasons for judgment in relation to Mrs Rogers’ leave to appeal application I describe the ultimate origins and chronicle the course of the other litigation which Mr Rogers and later his wife have come to institute or with which they have come to be involved in this and other courts. I have studied the affidavit which Mr Rogers came to swear and file in this proceeding on 1 November 2007 in support of the substantive application. In that affidavit he deposes to a series of alleged “events”. Having regard to that affidavit and to the other evidence before me in this proceeding, it is evident that the substantive application and Mrs Rogers’ leave to appeal application have like ultimate origins and that the course of the other litigation is likewise relevant. So as to make these reasons for judgment self-contained I have, instead of just incorporating my description and a related chronology by reference from the reasons for judgment in Mrs Rogers’ case, again reproduced them in what follows.

11                  The present proceeding has its origin in borrowings which were made earlier this decade by Mr Rogers and, materially, a company controlled by him, Living Space Holdings Pty Ltd (“Living Space Holdings”). The purpose of the borrowings seems to have been for the acquisition of various investment properties. The borrowings were a sequel to dealings which Mr Rogers had with a broker, Mr Russell Percival, now the Fourth Respondent, and Mr Paul Hare, now the Third Respondent and eventually entities controlled or associated with each of those individuals, including the present First Respondent, Asset Loan Co Pty Ltd ("ALC"), the present Second Respondent, Asset Loan Company Pty Ltd ("ALCPL") and the present Sixth Respondent, Riverstone Nominees Pty Ltd ("Riverstone") as trustee for the Percival Family Trust. Mr Rogers also entered into arrangements with the present Fifth Respondent, Mrs Judith Hare as trustee for the Hare Property Trust. In respect of the acquisition of one of the investment properties it seems that one Johanna Braas (“Ms Braas”) was also a borrower.

12                  Mrs Rogers came to be a guarantor in respect of various borrowings. She and Ms Braas also came to be the registered proprietors of a property located at Fingal Head in New South Wales (“the Fingal Head property”).

13                  In August 2004, ALCPL had made demand upon Mr Rogers for repayment of loan monies amounting to $437,573.40. Much litigation has since ensued in this Court and, in a broadly related sense, in the Supreme Courts of Queensland and of New South Wales. The Seventh Respondent, Mr Sean Whittle is a solicitor. He has acted for the other respondents in litigation conducted in this Court. He was also been a party in his own right as plaintiff in defamation proceedings in the Queensland Supreme Court to which Mr Rogers was defendant. In those proceedings de Jersey CJ last year granted interlocutory injunctive relief against Mr Rogers.

14                  The Eighth Respondent, the Honourable Robert Edward Borbidge, is the chairman of the board of directors of ALC. The Ninth Respondent is an employee of ACL and described by Mr Rogers as an assistant to Mr Hare.

15                  Since August 2004, Mr Rogers has been made bankrupt and Living Space Holdings has since been placed in liquidation.

16                  Further detail concerning relevant events is given in the following chronology:

CHRONOLOGY

17                  Insofar as they concern him personally, the alleged “events” described by Mr Rogers either pre-date his bankruptcy or, in the main, concern alleged conduct by one or the other of the Respondents in respect of litigation or a deed of settlement made in 2005 in respect of alleged causes of action arising from those pre-bankruptcy events (A reference to 15 September 2007 in Mr Rogers’ so called “Event 13” in his affidavit of 1 November 2007 appears, when read in context, to be concerned with an alleged event in 2005).

18                  Reflecting upon Mr Rogers’ past litigation in this Court and its outcome as detailed in the chronology, it is no coincidence that the substantive application in this case:

(a)                claims damages for “psychological stress, pain and suffering or mental damage”; and

(b)               calls in aid alleged causes of action under the ASIC Act.

19                  In one of those earlier cases, Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 Greenwood J commented (at [48]):

It may be that when Mr Rogers or his advisers formulate a statement of claim in the proceeding, a claim might emerge which, in terms of its material facts, reflects a claim within the exemption reliant upon conduct which involves a contravention of ss 52, 51AC or 60 of the Trade Practices Act 1974 (Cth) independently of any of the former rights of the bankrupt in property which have become vested in the trustee. At the moment the material does not establish any such right. 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.

20                  This comment was made with reference to that class of property which s 116(2)(g) of the Bankruptcy Act removes from property divisible amongst a bankrupt’s creditors, namely:

(2) Subsection (1) does not extend to the following property:

...

(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; or

(ii) in respect of the death of the spouse of the bankrupt or a member of the family of the bankrupt;

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person.

21                  In another of those earlier cases, Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195, which again came before Greenwood J, his Honour commented (at [44]):

Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls ‘does not apply to the supply, or possible supply, of services that are financial services’. The relevant statutory instrument regulating financial services is the [ASIC Act].

22                  These comments seem to have inspired Mr Rogers to give his perceived grievances different attire in the form of the present proceedings in the hope that they will prove less threadbare in law than has hitherto proved to be the case. Regard to Mr Rogers’ affidavit of 1 November 2007 discloses that, in the main, those perceived grievances replicate those set out in statements of claim that he filed in earlier proceedings in this Court. An exception to this is a personal injuries damages claim based on alleged breaches of the ASIC Act.

23                  Insofar as those perceived grievances are now presented in a different guise:

(a)                any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers’ trustee in bankruptcy; and

(b)               having regard to Mr Rogers’ affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act:

(i)                 (at [45]) “In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers.”;

(ii)                (at [55]) “Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation, to the bankrupt’s rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.” (Emphasis in original; explanatory case references or citations added).

24                  In his affidavit of 1 November 2007 Mr Rogers asserts (“Event 20”) that he has suffered the following loss and damage:

(a)                Sixty thousand dollars demanded by Paul Hare and Russell Percival as 2/3 of my profit on my sale of my land at Coles Court, Toogoom.

(b)               Twenty Thousand Dollars demanded by Paul Hare and Russell Percival from my profit on sale of my land at Matthew Court, Hervey Bay.

(c)                Five hundred thousand dollars of profit on sale of land at Torquay Terrace by Judith Hare and Russell Percival as director of Riverstone Nominees, while they held the land as trustees for a security property given as loan security.

(d)               Seven hundred thousand dollars profit from the sale of my land purchased with profit from Torquay Terrace, at Charles Street, Hervey Bay used as collateral as part of a partnership between Paul Hare, Russell Percival and myself by Judith Hare and Russell Percival as a director of Riverstone Nominees Pty Ltd.

(e)                Theft by fraud and forgery by Judith Hare who is the largest shareholder in Asset Loans, Russell Percival, Paul Hare and Riverstone Nominees Pty Ltd and perjury by Paul Hare, Russell Percival of approx one million dollars being ownership of a house situated at 22 Palmwood Drive, Dundowran valued at around $1.5 million dollars in 2007 prices.

(f)                 Theft by fraud by Paul Hare, Judith Hare and Russell Percival of approx $600,000.00 profit in the purchase, subdivision and development of a house and development site in Robert Street, Hervey Bay purchased by me as part of my business operations.

(g)                Theft by fraud by Judith Hare and Paul Hare who having been given land at Toogoom in a deed drawn up by Sean Whittle, on 15 September 2004 as security for an advance of $100,000.00 reneged on the funding, bounced a cheque and failed to honour any of the terms of the agreement.

25                  None of this alleged loss and damage falls within the description of the relief sought in the substantive application. Further, it is rooted, in one way or another, in events that occurred prior to Mr Rogers’ bankruptcy.

26                  Additionally in that affidavit, Mr Rogers asserts (para 154(a) and para 158) that he has suffered “severe mental illness” and that he was placed, “in a no win situation which severely affected my mental health intimately causing me to seek professional help at a public hospital in 2006”. He further asserts (para 160) that he has “sought help from medical professionals and am unable to return to my employment owing to a form of post traumatic stress syndrome”. No corroborative medical evidence is offered for these assertions. Be that as it may, these alleged effects might fairly be regarded as falling within the class of damages sought in the substantive application.

27                  To the extent that Mr Rogers propounds a claim for damages of the kind described in “Event 20”, it seems to me that this is nothing more than an endeavour to agitate causes of action which have vested in his trustee in bankruptcy. Further, any related proceedings instituted by Mr Rogers which were extant when he was made bankrupt came to be deemed to be abandoned by virtue of the operation of s 60(3) of the Bankruptcy Act.

28                  The addition of the Seventh, Eighth and Ninth Respondents in the present proceedings seems to me to be completely gratuitous, in no way ameliorating the impact in the circumstances of Mr Rogers’ bankruptcy.

29                  Mr Borbidge, the Eighth Respondent, seems to have done nothing more than, in 2004, give Mr Rogers the courtesy of listening to his grievances, considering his correspondence, referring the same to a solicitor (not Mr Whittle) for advice and then giving instructions to that solicitor to respond to Mr Rogers. Ms Purcell, the Ninth Respondent is said to maintain, with Mr Hare, the Third Respondent, a website, www.GregRogers.net, which is said to have operated since 2006 and alleged by Mr Rogers to contain material which is, in part, untrue. Thus it is said that the contents of the website are calculated to mislead and deceive persons as to his association with the website and to humiliate him in his endeavours to resist debt collection. Mr Whittle is said to have prepared material for the website. However, the provision of financial services which gave rise to the debt liability preceded Mr Rogers’ bankruptcy. No amount of ingenuity in relation to further Respondents can alter this.

30                  I expressly refrain from venturing into the subject of whether, assuming the same to be true in respect of Mr Hare and Ms Purcell, causes of action other than those identified in the substantive application giving rise to other relief in this or other courts might possibly present themselves.

31                  Further, in respect of the joinder of Mr Whittle as Seventh Respondent, it seems to me that the real reason for Mr Whittle’s joinder is his obtaining interlocutory injunctive relief against Mr Rogers in the Supreme Court and an endeavour by Mr Rogers to circumvent the orders made in that court by de Jersey CJ on 4 April 2007 (particulars of those orders are set out in the reasons for judgment given by me today in respect of Mrs Rogers’ leave to appeal application). The institution of this proceeding insofar as it added Mr Whittle as Seventh Respondent to the other persons (the First to Sixth Respondents) who have been respondents in earlier proceedings in this Court thereby offered Mr Rogers an opportunity, as he saw it, to file and read an affidavit containing material which, if otherwise published, would violate the terms of the Supreme Court’s orders.

32                  It is no coincidence that this proceeding, with additional Respondents, including Mr Whittle, who had not hitherto featured in Mr Rogers’ litigation, came to be instituted after de Jersey CJ made his orders and on the same day that Collier J dismissed an application brought on 14 June 2007 by Mrs Rogers against those who are the present First to Seventh Respondents: Rogers v Asset Loan Co Pty Ltd [2007] FCA 1660, 1 November 2007. I note that, in those proceedings (at [38] & [39]), Collier J reached a like conclusion in relation to circumvention when ordering the removal from that file of affidavits sworn by Mr and Mrs Rogers respectively. If nothing else, for like reasons, a like fate in these proceedings should be visited on Mr Rogers’ affidavit of 1 November 2007 pursuant to O 14 r 8 of the Federal Court Rules.

33                  For the Respondents it is submitted that none of the damages Mr Rogers claims in the present proceeding would fall for assessment by “immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property”. The conjunctive in this proposition, derived from Cox v Journeaux (No. 2) (1935) 52 CLR 713 at 721, is emphasised on their behalf. It is submitted that the damages which Mr Rogers claims are entirely consequential on damage to Mr Rogers’ financial interests as a result of alleged contraventions of the ASIC Act. Mr Rogers presses for an opposing conclusion.

34                  The answer, in my opinion, is supplied by analogy with the following passage from the judgment of Handley JA, with whom Kirby P (as his Honour then was) and Meagher JA agreed, in the unreported New South Wales Court of Appeal decision Manningel v Hewlett (12 June 1991), which was cited with approval by O’Loughlin and Merkel JJ in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, at 563:

The plaintiffs claimed damages in the proceedings in the manner particularised in paras 17(e), (f) and (g) of their amended statement of claim but these claims were consequential upon alleged breaches of professional duty owed to them by the defendants in relation to the purchase of the land and the contract by the vendor to erect a dwelling house on it. The plaintiffs' claims for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health therefore were not claims "without reference to their rights of property" within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiffs' financial and property interests as a result of alleged breaches of professional duty by the solicitors.

35                  The reference to “the principle stated by Dixon J” is a reference to the reasons for judgment of his Honour in Cox v Journeaux (No. 2) (1935) 52 CLR 713 at 721 to which reference is made in the passage which I have quoted above from the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195.

36                  Here, though Mr Rogers has not yet filed a statement of claim, the nature of his present claim for damages for personal injury, loss and damage is revealed with considerable candour and in detail in his affidavit of 1 November 2007. The foundation for that claim is the alleged conduct and allegedly resulting loss and damage as disclosed in “Event 20”, quoted above. Assuming, somewhat charitably, that the conduct there alleged might conceivably be brought within the embrace of that which is proscribed by the ASIC Act, whatever personal injury in the form of mental injury or distress that Mr Rogers may have suffered has about it an overwhelmingly derivative or consequential quality in relation to the conduct and resulting loss and damage there alleged.

37                  Further, the alleged effect of that conduct on Mr Rogers’ mental health is not said discretely to be referable to any one alleged event or particular alleged conduct. Rather, insofar as it is revealed by Mr Rogers’ affidavit of 1 November 2007, the nature of the damages claim he seeks to advance in the present proceeding appears to be alleged to be the result of the cumulative effects and interplay of alleged events and conduct on his mental health and well being.

38                  It seems to me that, in these circumstances, the damages claim which Mr Rogers seeks to advance in the present proceedings is either the direct result of alleged infringements of financial or property rights or, to the extent that it is not, that severance is neither possible nor practical.

39                  In Rogers v Asset Loan Co Pty Ltd [2007] FCA 195, Greenwood J did no more than acknowledge a theoretical possibility, recognised in the authorities to which his Honour referred, of a severable personal injuries claim. As it transpires, Mr Rogers’ endeavour to engage that theoretical possibility in practice is, at least as presently revealed, futile, in my opinion.

40                  The Respondents have sought to have the substantive application dismissed pursuant to the powers conferred on the Court by s 31A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”).

41                  The intent of s 31A is to enable summary judgment to be obtained even in circumstances where a consideration of prior authorities such as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, which had hitherto informed an assessment on summary judgment of no reasonable prospect of success, might have suggested that an application for summary judgment should be dismissed. In White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 Lindgren J made a number of observations in relation to the changes wrought by s 31A to the determination of a summary judgment application. Many other judges of this Court, including me (q v Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55), have gained assistance from those observations. Having regard to those observations, I approach the application made by the Respondents on the basis that a reasonable prospect of success for the purposes of the section is one which is real, not fanciful or merely arguable. So approaching the matter, my opinion is that the substantive application has no reasonable prospect of success.

42                  I have expressly considered whether, in lieu of dismissing the substantive application, I ought at least to allow Mr Rogers to file a statement of claim to see whether, in some way not presently apparent, a viable damages claim in respect of the causes of action identified in the substantive application might be revealed. Mr Rogers’ attempts at pleading, as revealed in the reasons for judgment in earlier cases identified in the chronology, do not give confidence in relation to this possibility. In any event, the affidavit of 1 November 2007 is, as I have observed, candid and detailed. I consider that no useful purpose would be served by affording Mr Rogers such an opportunity. I therefore propose to order that the substantive application be dismissed.

43                  There remains a question as to whether orders should be made in respect of Mr Rogers under either O 21 or what the respondents describe as “the inherent jurisdiction of the Court”?

44                  Like the High Court, this Court has no inherent power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the court: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, at 318. That case acknowledges the existence of an inherent power which would permit a court such as the Federal Court to prevent an abuse of its process by staying or dismissing an existing proceeding. The respondents have no need to call in aid this power as the upholding of their application under s 31A of the Federal Court of Australia Act evidences.

45                  A power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the Court is, however, conferred on the Court by the Federal Court Rules. One such relevant rule is O 21 r 1. In Ramsey v Skyring (1999) 164 ALR 378 (affirmed on appeal, Skyring v Ramsey [2000] FCA 774), Sackville J upheld the validity of O 21 r 1 in its then form. His Honour regarded the rule as falling within the rule making power conferred on the court by the Parliament in s 59(1) and s 59(2)(l) of the Federal Court of Australia Act 1976. Order 21 r 1 has since been amended but not in any way which would call into question the continuing relevance of the conclusion reached by Sackville J. Those provisions of the Federal Court of Australia Act also support the validity of the other relevant rule, O 21 r 2.

46                  So far as presently material and as at the time when the Respondent’s application was heard and written submissions made, O 21, r 1 and r 2 provided:

1 Vexatious litigant

(1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and

(b) that the person may not institute a proceeding without leave of the Court.

(2) An order under this rule may be made:

(a) on the Court’s own motion; or

(b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or

(c) on the application of the Registrar.

2                    Vexatious proceeding against a person

Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.

47                  Order 21 r 1(2) has since been amended so as to allow an application under O 21 r 1 to be made by, relevantly, “a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings”. This amendment, being procedural, would now give the Respondents a standing which they did not hitherto have to seek relief pursuant to O 21 r 1, providing, of course, that they were persons in respect of whom a vexatious proceeding had been instituted. The standing to bring an application under O 21 r 2, as the then language of that rule provided, was more accommodating for persons in the position in which the respondents allege themselves to be.

48                  A difficulty which I see for the Respondents is that O 21 r 3 provides that, “A person seeking an order under r 1 or r 2 shall proceed by application.” That seems to contemplate the commencement of a discrete proceeding by application in the original jurisdiction by an application substantially in Form 5 in Sch 1 to the Federal Court Rules, for which O 4 r 1 provides. Order 21 r 3 does not appear to me to be a warrant for the making of an application in an existing proceeding by motion, for which O 19 r 1 provides.

49                  Obviously enough, in referring to a person seeking an order under r 1 or r 2, O 21, r 3 does not apply to the singular and exceptional circumstance of the Court of its own motion making an order under O 21 r 1. That exceptional circumstance is not applicable here.

50                  Order 21 r 3 is cast in imperative terms. One reason why O 21 r 3 ought to be read as contemplating that whether or not to make an order under either O 21 r 1 or O 21 r 2 will be the subject of a discrete proceeding in the original jurisdiction, rather than an application in an existing proceeding, may be that it is not until the outcome of an existing proceeding is known that it can be judged whether or not it is “vexatious” or whether, having regard to earlier litigation, the institution of that proceeding admits of a conclusion that the person’s conduct is “habitual” or “persistent”.

51                  Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring (1999) 164 ALR 378, National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J).

52                  The Respondents have not followed what I regard as the course of action counselled by O 21 r 3. Instead, they have conflated an application for the dismissal of the present proceeding and for the removal of an affidavit from the file with an application under O 21 r 1 and r 3.

53                  Order 1 r 8 permits the Court to dispense with compliance with any of the requirements of the Federal Court Rules, either before or after the occasion for compliance arises. The Respondents have not sought such dispensation and, in any event, I should not be inclined to grant it. I have already adverted to one possible reason why O 21 r 3 contemplates a separate application. Another, related to that, may be that the outcome of a proceeding which admits of a conclusion that it is “vexatious” and that the person instituting it is want “habitually” and “persistently” to institute vexatious proceedings may be overturned on appeal. Such an outcome may, in turn, undermine the foundation for any orders made under either or each of O 21, r 1 or r 2.

54                  Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap.

55                  In these circumstances it seems to me that I ought to consider whether, assuming that my interpretation of O 21 r 3 is wrong, the outcome of the Respondents’ summary judgment application in this proceeding warrants the making of the orders sought under O 21 r 1 and r 2 in the circumstances.

56                  It is certainly possible to see in the course and outcomes of litigation described in the above chronology why the Respondents feel disposed to seek orders under O 21, r 1 and r 2. Detailed submissions were made on their behalf promoting a conclusion that Mr Rogers was to be regarded as a vexatious litigant who habitually and persistently instituted proceedings without reasonable cause. He has certainly in the past sought personally to re-agitate other causes of action for damages notwithstanding earlier judicial conclusions that these vested in his trustee in bankruptcy.

57                  For all that, what in substance Mr Rogers has done in the present proceeding is to seek to agitate a claim for damages for personal injury, loss and damage pursuant to causes of action said to arise under the ASIC Act. He has not done this before. No submission was made that this absence of seeking to litigate this very cause of action was irrelevant in light of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and the outcome of earlier proceedings in this Court brought by Mr Rogers against some of the Respondents. Further, it is, with respect, as set out above, possible to discern in the reasons for judgment given in certain of the earlier proceedings the inspiration for the present proceeding. Yet further, the application of the principle described by Sir Owen Dixon in Cox v Journeaux (No. 2) in the circumstances of the present case is not without difficulty.

58                  In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 at 380, [44], Finn J observed of O 21 r 1 and r 2:

[44] By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a “constitutional right” of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 ; [1980] 1 All ER 289 at 295; Ramsey v Skyring (1999) 164 ALR 378 at 389 ; [1999] FCA 907; Freeman v National Australia Bank Ltd (2006) 230 ALR 213 at 218–19 ; [2006] FCAFC 67. The purpose of the powers given under the Rules is to reinforce the power of the court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring (1992) 109 ALR 303 at 312; 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.

59                  I respectfully agree with his Honour’s observations.

60                  I have a discretion to exercise. Recalling these observations, I do not think that the fate of the substantive application in the present case, even against the background of the earlier litigation detailed in the chronology, provides the occasion for the making of orders under O 21 r 1 or r 2.

61                  That is so even having regard to the contents of Mr Whittle’s further affidavit. It is evident from that affidavit that Mr Rogers misunderstands the nature of undertakings given in earlier proceedings and the fate of undertakings when the proceedings in which they are given are abandoned or dismissed. The undertakings given in those earlier proceedings are no longer extant. There is doubtless a degree of annoyance in the way that misunderstanding manifested itself in his correspondence, but he has not come to institute any proceeding in this Court based on that misconception. Were he so to do, the position so far as relief under O 21 r 1 and r 2 is concerned may be different. Further, that same correspondence, if repeated, may be influential, in the context of any other proceeding instituted by him without reasonable cause against the Respondents, in deciding that he is vexatious.

62                  Were Mr Rogers again to seek to institute in this Court proceedings of the present kind against the Respondents it may well be that an occasion for the making of orders under either O 21 r 1 or r 2 would arise, having regard to the order dismissing this proceeding, the outcomes of his earlier proceedings set out in the chronology and, I think, the not coincidental timing and nature of proceedings, also detailed above, instituted in this Court by Mrs Rogers.

63                  For these reasons, the orders that I propose to make are therefore to:

1.                  Grant leave to the Respondents to:

(iv)              amend their notice of motion filed on 12 November 2007 in the terms set out in their notice of motion filed on 4 December 2007;

(v)                read, in support of the notice of motion as so amended, the affidavit of Mr Whittle filed on 4 December 2007;

2.                  dismiss the application filed on 1 November 2007;

3.                  order that the affidavit of Mr Rogers filed on 1 November 2007 be removed from the court file;

4.                  otherwise and insofar as the Respondents’ notice of motion as amended seeks orders under O 21 r 1 and r 2 or what is described as the “inherent jurisdiction” of the Court, dismiss that notice of motion.

64                  I shall hear the parties in respect of costs.

Associate:

Dated: 21 August 2008