FEDERAL COURT OF AUSTRALIA

Shaw v MAB Corporation Pty Ltd [2014] FCA 62

THE COURT ORDERS THAT:

1.    The time in which the applicant has leave to file and serve an Application for Leave to Appeal from the orders of the Court dated 22 November 2013 is extended to 15 January 2014.

2.    The application for leave to appeal from the orders of the Court dated 22 November 2013 is dismissed.

3.    The parties file and serve any written submissions they wish to make as to the costs of this application on or before 4.00pm on Monday 24 February 2014. Any submissions are to be limited to no more than three pages.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This is an application for leave to appeal from orders made by the Court on 22 November 2013. By those orders, the learned primary judge gave summary judgment for the respondents in the proceeding. The applicant also seeks an extension of time in which to bring his application for leave to appeal.

2    The respondents’ application for summary judgment invoked both s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules). A question arises whether the summary judgment order made by the Court is supported by one or both of s 31A and r 26.01. This may be material because an order made under s 31A is unarguably of an interlocutory nature, however the same certainty may not attach to the nature of an order made pursuant to r 26.01. Accordingly, a question arose whether the applicant needs leave to appeal, and if he does not, whether he had in fact filed an appeal within time by the lodgement of appeal documentation in the Registry of this Court on 13 December 2013.

3    Whether the applicant requires an extension of time in which to seek leave to appeal also depends to some extent on the answer to the question identified in the previous paragraph.

4    For the reasons that follow, I have concluded that the primary judge’s order was interlocutory in nature and accordingly leave to appeal is required. The applicant will be granted an extension of time in which to seek leave to appeal, but his application for leave will be dismissed.

Background

5    This proceeding emerges from a long history in other courts, which is set out in detail in the reasons of the primary judge: see Shaw v MAB Corporation Pty Ltd [2013] FCA 1231 at [3]-[22]. In summary, the dispute between the applicant and two of the current respondents originally related to the purchase on 12 April 2000 by the applicant, Mr Shaw, of land subject of a development at Docklands from Yarranova Pty Ltd (Yarranova), the third respondent. On 1 December 2003, the applicant commenced proceedings in the Supreme Court of Victoria against the third respondent and Newquay Stage 2 Pty Ltd (Newquay), the fourth respondent, to which Yarranova had assigned its rights and obligations under the contract of sale with the applicant.

6    In that Supreme Court proceeding, the applicant sought specific performance of the contract, relief against forfeiture, a declaration that a caveat he had lodged in relation to the land was valid, and damages. In its counterclaim, Newquay sought removal of the caveat. Bell J found in favour of the respondents on the claim and Newquay succeeded on its counterclaim: see Shaw v Yarranova Pty Ltd [2006] VSC 45. So began a sequence of appeals, applications and other proceedings in the Supreme Court, and the Victorian Court of Appeal, stemming in one way or another from that initial determination by Bell J.

7    On any view, there have been a large number of applications and decisions in the Supreme Court in respect of the applicant, Yarranova and Newquay. The applicant submitted that he has “initiated” only two of them: namely, the first proceeding before Bell J, and an application for a stay of Bell J’s judgment pending the hearing and determination of the applicant’s appeal. Aside from the original proceeding and the appeal against Bell J’s orders, all of the other proceedings have, he submitted, either been applications brought by or on behalf of the respondents or appeals by the applicant from those applications, when decided unfavourably to him. The respondents’ applications include injunctions restraining the applicant from dealing with assets, assessments of damages following an undertaking given by the applicant, costs orders and freezing orders. The applicant makes a point of this fact in his submissions about why the primary judge was wrong to rely on concepts of oppression to give judgment in favour of the respondents. I will return to this contention later in these reasons.

8    At the time of this judgment, proceedings by Mr Shaw remain on foot in the Court of Appeal: namely an appeal from the orders of Dixon J of 11 April 2013. Dixon J had dismissed the applicant’s summons of 4 September 2012, which sought to set aside the orders of Daly AsJ of 7 March 2008. The orders of Daly AsJ had awarded damages in favour of Yarrranova and Newquay. The presence of continuing proceedings in the Court of Appeal only serves to highlight the abuse of process found to exist by the learned primary judge.

Proceedings and judgment in this Court

9    The applicant commenced proceedings in this Court against 10 respondents by way of originating application and statement of claim on 3 August 2013. In that application, the applicant made a variety of allegations against the respondents, which are summarised by the primary judge in his reasons at [31]-[38]. They included allegations of conspiracy to tender false evidence, conspiracy to suborn witnesses, the giving of false evidence, seeking to obtain unjust enrichment, fraud, fraudulent concealment, and intimidation. He also alleged that Yarranova and Newquay, along with MAB Corporation Pty Ltd (MAB), the first respondent, engaged in conduct that was both misleading and deceptive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA), involved false and misleading representations contrary to s 53A(2), and constituted “unconscionable conduct” in accordance with ss 51AA-51AC of the TPA. The applicant claimed by way of relief damages under the TPA, exemplary damages in the amount of $500,000, costs, and, by interlocutory application, a stay of the bankruptcy proceedings brought against him by Yarranova and Newquay in the Federal Circuit Court and an injunction restraining the respondent from recovering costs arising from the original proceeding in the Supreme Court of Victoria, until such time as the application in this Court was heard and determined. His application for a stay of the bankruptcy proceedings was dismissed by judgment dated 25 October 2013: Shaw v Yarranova Pty Ltd [2013] FCCA 1627.

10    On 27 September 2013, the respondents filed an interlocutory application seeking

•    an order that there be summary judgment for the Respondents pursuant to s. 31A of the Federal Court of Australia Act 1976 (Cth), or alternatively, under r 26.01 of the Federal Court Rules 2011 (Cth).

•    Alternatively, an order that the proceeding be permanently stayed, pursuant to ss. 20 and 23 of the Federal Court of Australia Act 1976 (Cth) and the implied jurisdiction of the Federal Court of Australia.

11    The application for summary judgment was heard by the primary judge on 31 October 2013, with judgment delivered on 22 November 2013. It is important to note the structure of his Honour’s reasons, both as an aid to understanding the various findings made, and in order to deal with the applicant’s submissions on this application about the errors said to inhere in the primary judge’s reasoning.

12    The applicant’s statement of claim made a number of allegations against 10 respondents, all involving their conduct in previous proceedings in the Victorian Supreme Court, and in the Federal Circuit Court. To deal with the breadth and variety of the allegations, the primary judge sought (at [31]) to examine the relationship between the applicant’s allegations in the proceeding in this Court and the various applications and decisions in the Supreme Court of Victoria and the Federal Circuit Court. He did this by dividing the allegations into four groups and, within those groups, subdividing the allegations into parts if necessary. For example, through this method, the primary judge identified that the applicant’s allegations in his statement of claim about the conduct of Yarranova, Newquay and some of the individual respondents conspiring to provide false evidence to the Victorian Supreme Court, and giving false evidence to the Supreme Court, related to an application by Yarranova and Newquay for an injunction restraining the applicant from drawing down or otherwise dealing with a mortgage facility he had obtained from the National Australia Bank over properties which were subject to a warrant of seizure and sale in favour of Yarranova and Newquay, as a result of earlier judgments in their favour against the applicant. The applicant sought leave to appeal from those injunction orders, but was refused leave.

13    In this application, the applicant criticised the primary judge’s use of this grouping method. He submitted it meant the primary judge had failed to deal with the allegations in the statement of claim individually. There is no basis for that criticism. To the contrary, the method adopted by the primary judge brought, with respect, a structure and order to the applicant's claims which enhanced the analysis and determination of the application for summary judgment.

14    The primary judge did not accept the respondents’ submissions that the applicant’s claims were colourable and had been made only for the purpose of fabricating jurisdiction. Despite observing (at [40]) that the “very strong sense which one gets from a reading of the Statement of Claim is that the applicant’s federal statutory claims have in effect been laid like a tarpaulin across a miscellany of grievances and aggravations which are otherwise concerned with Supreme Court proceedings, procedures and outcomes”, the primary judge found this Court had jurisdiction to deal with the applicant’s claims.

15    However, the primary judge did accept the respondents’ submission that judgment should be entered in the respondents’ favour on three grounds: abuse of process, an estoppel in the sense recognised in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (Anshun Estoppel) and that the applicant’s claims had no reasonable prospects of success. The primary judge found both the abuse of process and Anshun grounds applied to all four groups of claims he had identified as made by the applicant against Yarranova and Newquay, although not against all of the remaining respondents. The primary judge considered the remaining respondents individually in his reasons for judgment and found the applicant’s claims against them should be dismissed either as an abuse of process, or because they had no reasonable prospects of success.

16    The primary judge found the proceeding constituted an abuse of process, because it would bring the administration of justice into disrepute. His Honour said (at [44]-[45]):

[t]he allegations made by the applicant … are more than simply such as might have been made in the various applications and appeals in the original proceeding, or, to a limited extent, in the assets proceeding, but in some respects they have that feature. The allegations are also more than the re-packaging of claims and defences which were made and disposed of in those proceedings, but in some respects they have that feature too. To my way of looking at it, a striking feature of the allegations is that, in point of substance, they relate to conduct said to have taken place in the conduct of those proceedings. Being substantially allegations of fraud or of presently analogous iniquities (misleading representation, duress, conspiracy etc), if the allegations were well-founded, they would inevitably provide grounds for the Supreme Court orders to which they relate to be set aside. But the Federal Court does not have power to grant any such relief, and none is sought. Rather, what is sought is a series of declarations about the conduct of the respondents in relation to the original proceeding, and damages on account of the applicant having been subjected to the orders made by the Supreme Court. The matter needs only to be viewed in this way for it to be clear that the use of the Federal Court and its procedures in this way would bring the administration of justice into disrepute, and very seriously so.

A further striking feature of the applicant’s allegations is that the sources of the losses for which he claims damages are the pecuniary orders made by the Supreme Court itself. When coupled with the circumstance mentioned above — that the substantive basis of the cause of action is that the orders were procured by fraud, misrepresentation and the like — what we have is an applicant who, either alternatively or additionally to seeking the setting aside of the orders from which the losses are said to flow, desires to be compensated for those very losses. This is the clearest of collateral attacks on the Supreme Court orders, and should not be permitted.

17    The applicant lodged electronically a Notice of Appeal from the orders of the primary judge with the Registry of this Court on 13 December 2013, within the time prescribed for an appeal by r 36.03 of the Rules. He paid the appeal fee of $3,630.

18    Subsequently, on the same day, the Registry informed him by email that the orders from which he sought to appeal were interlocutory and he needed leave to appeal. The Registry accordingly informed him he needed to file the necessary documents seeking leave in accordance with the Rules. This he did, although the applicant deposed to there being some delays in him doing so by reason of his location in Sydney and lack of access to computer facilities. I accept his evidence as to the reason for the delay, and it was not challenged by the respondents.

19    Pursuant to r 35.14 of the Rules, on 15 January 2014 the applicant applied to the Court for leave to appeal, and an extension of time in which to appeal, from the decision of the primary judge. Rule 35.13 requires an application for leave to appeal to be filed and served within 14 days after the date on which the orders or judgment were pronounced. Accordingly, an application in this matter, if the decision of the primary judge is considered interlocutory, should have been filed by 6 December 2013. The applicant would therefore be 18 days out of time.

ISSUES TO BE DETERMINED

20    A decision granting summary judgment under s 31A is to be taken as an interlocutory judgment for the purposes of s 24 of the Federal Court Act: s 24(1D)(b). Leave to appeal is required: s 24(1A). There is no doubt the applicant required leave if the primary judge’s orders were made under s 31A.

21    However, as the respondents properly and frankly conceded, their application had also invoked r 26.01, and the abuse of process grounds relied on by the primary judge are more readily identified with an order giving summary judgment under r 26.01, than under s 31A. In turn, this raises the question whether an order under r 26.01 is properly characterised as final or interlocutory. If the former, no leave is required.

22    Therefore, the first issue is whether the primary judge’s order is wholly supported by s 31A. If not, the next issue is whether, if supported in whole or part by r 26.01, the order is interlocutory or final.

23    If the order is supported by r 26.01 and is properly characterised as a final order, the applicant had a right to appeal. The evidence then disclosed another question about whether the appeal was lodged within time because the initial documents lodged by the applicant were received and stamped in the Registry of the Court, and subsequently rejected on the basis that he required leave to appeal. The initial appeal documents were lodged within the period for which the Rules provide: see r 36.03.

24    Therefore, depending on the answers to the first two issues, there may be a question whether the applicant lodged an appeal within time and needs neither an extension of time nor leave to appeal.

25    If leave is required, and an extension of time therefore also required, the principal issue for the Court to determine is whether the appeal has any prospects of success. That is the governing criterion as to any extension of time, and the grant of leave to appeal, although in the authorities the tests are differently expressed: see Wilson v Alexander (2003) 135 FCR 273; Lin v Rail Corporation New South Wales [2011] FCA 546 at [23] per Buchanan J; cf Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

26    Although they fairly recognised that the applicant has provided an explanation for the delay in filing his application for leave to appeal, the respondents oppose the application for leave to appeal and the extension of time sought by the applicant, on the basis that the orders of the primary judge are not attended with sufficient doubt to warrant the grant of leave.

EVIDENCE on the leave application

27    The applicant read an affidavit affirmed by him on 8 January 2014, and filed with the Court on 15 January 2014. The respondents made no objections to that affidavit. The affidavit dealt in substance with the applicant’s attempts to file an appeal from the primary judge’s orders, which I have outlined at [17]-[18] above.

Criteria governing THE grant of LEAVE TO APPEAL

28    Section 24(1A) of the Federal Court Act confers on the Court an “unfettered discretion” to grant leave to appeal, in “unqualified terms”: Décor Corporation 33 FCR 397 at 399. Principal (but not sole) considerations in the exercise of discretion are whether the Court’s decision is attended by sufficient doubt to warrant the grant of leave, and whether substantial prejudice or injustice would result if leave were refused: see Décor Corporation 33 FCR 397 at 399. More recently, a Full Court of this Court has expressed those considerations in the following terms:

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

(Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 at [20].)

29     It must be borne in mind the discretion is a broad one, which must be capable of adapting to the variety of circumstances which may be presented to the Court, depending on the nature and subject matter of the proceeding in question.

30    A distinction is often drawn between interlocutory decisions on points of practice and procedure and those which determine substantive rights, the latter attribute in some circumstances inclining in favour of the exercise of discretion: see Décor Corporation 33 FCR 397 at 400; Cement Australia 187 FCR 261; [2010] FCAFC 101 at [22], referring to Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292 at [23]; Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 at [19]-[20].

31    The applicant will, of course, also need to demonstrate that the learned trial judge made an error of the kind identified in House v The King (1936) 55 CLR 499 at 505: see Samsung [2013] FCAFC 138 at [17]; Christanty v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 33 at [24] per Yates J.

CRITERIA GOVERNING AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL

32    So far as the extension of time application is concerned, the discretion given to courts to extend time is given for the purpose of enabling the court to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. When exercising the discretion in relation to leave to appeal from an interlocutory judgment, the Court must consider the prospects of success of the application for leave to appeal: Deighton v Telstra Corporation Ltd (Unreported, Federal Court of Australia, Lee, Heerey and RD Nicholson JJ, 17 October 1997). As set out at [28] above, leave will only be granted where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: Décor Corporation 33 FCR 397 at 399. In Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802, Lindgren J observed (at [20]) that “[i]n practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself”.

33    The applicant must also be able to explain the reasons for the delay: Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138 at [7] per Foster J, citing Croker v Philips Electronics Australia Ltd [2000] FCA 1731.

RESOLUTION OF THE APPLICATIONS

The application to extend time

34    The applicant sought to file within time, and even if it is correct that he requires leave to appeal, the delay of 18 days is short, there is no additional prejudice to the respondents from that delay and he has what I consider to be a reasonable explanation.

35    Since the matter has been heard and is to be determined together with the leave application, no additional considerations which affect the administration of justice in the Court, or the efficient disposition of the Court’s business, arise.

36    In those circumstances I am prepared to grant the applicant an extension of time in which to file his application for leave to appeal.

The application for leave to appeal

37    The first question is whether the order for summary judgment made by the primary judge is final or interlocutory.

Can section 31A support the whole of the orders?

38    The primary judge made one order: that there be judgment for the respondents in the proceeding. The summary judgment application had been made pursuant to both s 31A of the Federal Court Act and r 26.01 of the Rules, and the primary judge’s reasons refer to both bases. On the leave application, counsel for the respondents properly pointed out that the reasons could fairly be construed as relying on r 26.01 for the findings that the proceedings were an abuse of process because they were oppressive and brought the administration of justice into disrepute, and for the Anshun estoppel findings. If that were the case, and s 31A did not otherwise support the order made, a question arose (as the respondents’ counsel fairly identified) whether a decision to give summary judgment pursuant to r 26.01 is a decision of an interlocutory or final nature.

39    Even if the primary judge relied on r 26.01, if s 31A is construed as supporting the giving of summary judgment for reasons of abuse of process, oppression and Anshun estoppel, then the order is interlocutory, by reason of the deeming provision in s 24(1D). Where a basis exists for the exercise of power, the exercise will be valid even if the repository of the power relied on a different basis or provision: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124] per Heydon J; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 at [34] per French CJ, Hayne, Kiefel and Bell JJ.

40    In its terms, it might be thought that s 31A is a narrower power than that conferred by r 26.01, in that it appears to take as its subject matter the Court’s assessment of the prospects of a proceeding, whether on the law or the facts or both. It might be seen, on its terms and given the context in which it was introduced, as not intended to deal with summary judgment or dismissal on the basis the proceeding is an abuse of process.

41    Counsel for the respondents did not rely on any particular authority to support the proposition that s 31A could be construed more widely than its terms, and the context of its introduction, might suggest. However, at least one of the two judgments in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 does give the provision a broader construction. At [22], French CJ and Gummow J state:

This section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

42    The plurality do not expressly give s 31A this construction, but do emphasise that s 31A “departs radically” from the earlier forms of the provision permitting summary judgment, which required formulation of “certain and concluded determination that a proceeding would necessarily fail” (Spencer 241 CLR 118; [2010] HCA 28 at [53] per Hayne, Crennan, Kiefel and Bell JJ). Section 31A posits a different inquiry, whose scope should not be paraphrased and whose content should be judicially determined as cases arise, bearing in mind that it is intended to be a departure from (and a widening of) the power of summary judgment which previously existed: see Spencer 241 CLR 118; [2010] HCA 28 at [56]-[60].

43    Although it may not be possible to say with certainty that the plurality would see abuse of process grounds as within s 31A, what can be said is that the plurality did not exclude them, and recognised a wider operation for s 31A.

44    In those circumstances, and given the express statements by French CJ and Gummow J, the primary judge’s orders could be wholly supported by s 31A. That being the case, the deeming provision in s 24(1D) operates in respect of the orders to render them interlocutory, and leave is required for any appeal.

45    However, even if I am wrong to give s 31A such a broad construction, in my opinion the particular bases relied on by the primary judge for summary judgment under r 26.01 renders the orders interlocutory.

46    The Full Court pointed out in Egglishaw v Australian Crime Commission (2007) 164 FCR 224; [2007] FCAFC 183 at [38]-[45] that characterisation of the nature of an order under r 26.01 for the purposes of deciding whether leave to appeal is required will depend on whether or not the judgment from which an appeal is sought finally determines the parties’ rights. The Court identified no inconsistency between the High Court’s decisions in Re Luck (2003) 203 ALR 1; [2003] HCA 70 at [9], and Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 (Anshun (No 1)), although suggestions to the contrary have been made. In Egglishaw 164 FCR 224, the Full Court clarified (at [44]) that in circumstances where the judgment appealed from involves a finding of estoppel (including Anshun estoppel) or res judicata, there is a finding that an earlier judgment or order precludes a further judgment or proceeding. That is not the case with a judgment based on abuse of process considerations, because a litigant retains a right to issue a fresh proceeding which is not of that nature.

47    Accordingly, summary judgment given under r 26.01 may or may not be interlocutory in character, depending on the grounds identified by the Court. In the present proceeding, the grounds relied upon by the primary judge as extending to all claims and all parties (that is, abuse of process by way of oppression and bringing the administration of justice into disrepute) did not finally determine any rights of the parties. The findings as to Anshun estoppel did do so, but they were not made by the primary judge as to all parties, and in that sense could not support judgment in favour of all the respondents on all claims. For example, as against the first respondent MAB Corporation Pty Ltd, the primary judge found the applicant’s claims against MAB to be “an instrument of oppression against Yarranova and Newquay”, and an abuse of process within r 26.01. He also found the federal statutory claims (under the Corporations Act 2001 (Cth) and the TPA) made by the applicant against MAB and the other respondents had no reasonable prospects of success.

48    If I am wrong in my conclusion about the breadth of s 31A, then at least as to the claims against respondents other than Yarranova and Newquay, the order of the primary judge, read with the reasons for the order, relies on r 26.01 and on grounds which render the order interlocutory in nature.

49    My conclusions remove the need to consider any questions posed by the acceptance by the Registry of the applicant’s Notice of Appeal on 13 December 2013, and whether there was an appeal filed within time. The applicant requires leave to appeal.

Should leave be granted?

50    In Spencer 241 CLR 118; [2010] HCA 28 at [24], French CJ and Gummow J expressly referred to the need for caution to attend the termination of proceedings summarily. Their Honours referred then to several decisions, including Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 [2006] HCA 27 at [46] and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], where the language of “a high degree of certainty” was used. The language of “certainty” is the kind of language the plurality appears to suggest is not necessary under s 31A. In that sense, there may be at least a difference in emphasis between the judgment of French CJ and Gummow J and that of the plurality. However I do not understand the plurality judgment to suggest there should be any dispensation with the firm theme of previous authorities: namely, that such a power must be exercised cautiously.

51    The reasons of the primary judge display a high level of certainty, and that can be seen from the expressions used in some of the passages to which I have already referred. In that sense, the primary judge appreciated the threshold which had to be met for summary judgment, and was clearly satisfied that it was met.

52    On the question of Anshun estoppel, his Honour had no doubt that the claims made by the applicant “naturally belonged” in the respective Supreme Court proceedings he identified, particularly because most of the claims would have provided a basis for setting aside orders made against the applicant. Before me, the applicant raised two criticisms of this approach. First, he submitted there was no authority, and no reasons given, for the use by the primary judge of the expression “naturally belonged”.

53    This criticism has no merit. The original phrase picked up in Anshun 147 CLR 589 from Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 is “properly belonged”. In Henderson, Sir James Wingram VC described the principle as operating

not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

54    Although the primary judge does not expand on his use of the phrase “naturally belonged”, there is no error in his use of the phrase. That he meant nothing different by the use of the adverb “naturally” instead of the adverb “properly” is clear from the primary judge’s expression of the test in the conventional way at [42] of his reasons.

55    Second, Mr Shaw submitted that, in circumstances where he was bringing claims against eight respondents who were not parties to any of the Supreme Court proceedings, Anshun principles should not have been applied. The position is not as binary as that. Anshun estoppel can apply in circumstances where the parties to the two sets of proceedings are not the same: see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [83]. A change in the identity of the parties does not prevent an estoppel arising where the second proceeding gives rise, or may give rise if successful, to the existence of conflicting judgments: Anshun 147 CLR 589 at 603-604.

56    The reasons of the primary judge do not expressly address the likelihood of conflicting judgments. However, it is apparent from the reasons that certainly in relation to some of the applicant’s claims in the Federal Court proceedings, if he succeeded the relief granted would be inconsistent with orders and judgments of the Supreme Court of Victoria. For example, Daly AsJ’s assessment of damages orders could not stand consistently with a finding by the Federal Court that all or some of the evidence adduced before her Honour, and on which her orders were based, was procured by fraud, or was false. That finding would need to be made before the damages claimed by the applicant could be awarded by this Court (if they otherwise could be awarded, a matter I do not decide). Similarly, the injunction granted by Judd J in December 2009 is alleged in the Federal Court proceedings to be based on false evidence by Mr King, tenth respondent in the Federal Court proceedings. A judgment of this Court which found that to be the case would be inconsistent at a substantive level with the orders of Judd J which, like any exercise of judicial power, are based on evidence the Court has accepted to be admissible, true and reliable.

57    There is no merit to the applicant’s arguments that the primary judge erred in applying Anshun in circumstances where the parties to the proceedings in this Court were different (as to eight of the ten) to those in the Supreme Court proceedings.

58    The applicant made detailed submissions in respect of the primary judge’s conclusion that it would be oppressive to permit the Federal Court proceedings to continue, in that they would require Yarranova and Newquay to join issue again with the applicant, this time collaterally, on the same questions as those raised in the Supreme Court. The applicant criticised, for example, the primary judge’s observation (at [46]) that “I have the impression that the applicant's general project is to reduce to the absolute minimum the monetary recovery that Yarranova and Newquay are able to achieve from him, whatever their entitlements under orders by [the Supreme Court].” The applicant submitted that it was perfectly legitimate for him, by appeals, applications for stays, and indeed by other proceedings, to seek to reduce what the respondents might recover from him. In particular, as I have already observed, the applicant referred to the nature of most of the applications and proceedings in the Supreme Court and the fact that they were initiated by the respondents. How, he asked rhetorically in submissions, could it be said that the applicant was oppressing or vexing the respondents in those circumstances?

59    It is, I accept, possible to see the applicant’s side of that criticism. If the applicant had been a corporation, legally represented, this long sequence of litigation might be characterised as nothing more than “hard fought”. However, as the primary judge concluded (at [46]), the real vice in the current proceedings in this Court is that they seek collaterally to impugn the processes, judgments and orders in other courts (the Victorian Supreme Court, the Court of Appeal and the Federal Circuit Court) and collateral proceedings of that kind — “another … stratagem” as the primary judge described them — are capable of being seen as vexatious. In Ann Street Mezzanine Pty Ltd (in Liq) v Beck (2009) 175 FCR 532; [2009] FCA 333 at [31]-[32], Finkelstein J explained why such a collateral attack is an abuse of process, by reference to Hunter v Chief Constable of West Midlands Police [1982] AC 529:

Unlike issue estoppel which requires an identity of parties, an abuse of process may prevent a person from making a collateral attack on a judgment in an action with a different party. For instance, sometimes a person who has had a full opportunity to present his whole case will not be permitted to reargue the case. In Hunter v Chief Constable of West Midlands Police [1982] AC 529 (the Birmingham Bombers case) the accused had been convicted of murder based on alleged confessions made during interviews with the police. At trial, the accused contested the confession contending they been obtained under duress. Following a voir dire the confessions were admitted into evidence. Further, the jury must have rejected the evidence of the accused concerning the assault because they were convicted of murder. Thereafter Hunter, one of the accused, sued the police for assault. His action was struck out. Lord Diplock (with whom the other Law Lords agreed) acknowledged there was no issue estoppel. Nevertheless, the collateral attack on the jury's verdict was not permitted because it was an abuse of process in that the proceedings constituted a collateral attack upon a final decision which had been made by a court of competent jurisdiction in previous proceedings in which Hunter had had a full opportunity to contest the decision: Hunter [1982] AC at 541.

The basis of the decision in Hunter is that a person is not to be permitted to litigate a second time what has already been decided against him in another case.

60    In my opinion, the feature to which I have just referred is the most critical consideration supporting the primary judge’s order for summary judgment. The Federal Court proceedings must of their nature collaterally impugn the processes and judgments of other courts, in circumstances where the appellate processes in those other courts have been available and utilised when the applicant saw fit. Where the underlying disputes between the parties have already been the subject of judicial determination, asking a court which is otherwise a stranger to those disputes to make findings about the giving of false evidence, the suborning of witnesses, the engagement in fraudulent conduct — all abuses of the processes of those other courts — will bring the administration of justice into disrepute. Appellate processes, and claims in those courts’ original jurisdiction where there has been fraud or perjury, are there to correct such alleged abuses of process, and to bring finality for the parties.

61    On the bankruptcy proceedings in the Federal Circuit Court, and any connection between those and the allegations in the Federal Court proceedings, the primary judge relied on Anshun estoppel, oppression and bringing the administration of justice into disrepute: at [50]. He was correct to do so.

62    Separately from Anshun, the primary judge also examined the applicant’s argument that he was largely proceeding against different parties in the Federal Court. Having analysed the nature of the allegations against those respondents, and found most of them legally wanting, the primary judge concluded that the concept of abuse of process (both as to oppression and bringing the administration of justice into disrepute) should apply as against the other respondents against whom proper allegations are made: namely; MAB and MAB Docklands Pty Ltd. There is no error in the primary judge’s approach on this matter.

63    The primary judge also dealt separately with the TPA claims (at [57]-[59]) and found they had no reasonable prospects of success because, rather than the conduct occurring in trade or commerce, it occurred in the setting of, making, reviewing and resisting of court orders. He also dealt briefly, but in my respectful opinion correctly, with the s 53A(2) claim: see [58] of the reasons.

64    In summary, the applicant has no reasonably arguable case of error against the orders and judgment of the primary judge. The primary judge’s emphasis on oppression was open to him on the evidence, even if the applicant might see the use of that word as inappropriate as between him and the respondents. Further, the primary judge was in my respectful opinion correct in identifying the applicant’s proceedings as bringing the administration of justice into disrepute, and in his identification of the circumstances of Anshun estoppel.

65    More critically, there is no aspect of the applicant's submissions on the application for leave to appeal which persuades me the applicant has any prospects of success on an appeal which must ultimately be decided on the principles set out in House v The King (1936) 55 CLR 499.

66    The applicant has been deprived of any hearing of the merits of his damages claims, which is a significant matter and, from his perspective, a significant prejudice. He is not legally represented and therefore his ability to deal with matters such as Anshun estoppel and the interstices of abuse of process arguments is limited. I have taken those matters into account in reaching my conclusion, but they did not outweigh the very clear lack of prospects for the applicant’s claims, nor the underlying abuse of the process of this Court which inheres in them.

Associate:

Dated:    17 February 2014