FEDERAL COURT OF AUSTRALIA

Jorgensen v Jorgensen [2019] FCA 1742

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application lodged by Mr Alan Bradley Jorgensen with the Federal Court of Australia Registry on 16 September 2019 not be accepted for filing.

2.    Mr Timothy McGrath not be cross-examined at the Hearing on 6 November 2019.

3.    The oral application for vacation of the Hearing on 6 November 2019 be refused.

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

REASONS FOR JUDGMENT

COLLIER J:

1    On 21 October 2019 at a case management hearing in these proceedings I made the following Orders:

1.    The Interlocutory Application lodged by Mr Alan Bradley Jorgensen with the Federal Court of Australia Registry on 16 September 2019 not be accepted for filing.

2.    Mr Timothy McGrath not be cross-examined at the Hearing on 6 November 2019.

3.    The oral application for vacation of the Hearing on 6 November 2019 be refused.

2    I now publish written reasons for these Orders.

background

3    This proceeding is part of a long running dispute between Mr Brian Jorgensen and Mr Alan Jorgensen, who are twin brothers.

4    Mr Alan Jorgensen and related parties have previously brought nine overlapping claims in Courts in Queensland and New South Wales, and in the Federal Court of Australia. All proceedings essentially concerned allegations by Mr Alan Jorgensen of breach of fiduciary duty and fraud on the part of Mr Brian Jorgensen and others, in respect of the transfer in 1992 of units in the Rainbow Motor Inn Unit Trust held by the trustee of that trust (which I understand was Grancroft Pty Ltd (Grancroft)), to a company controlled by Mr Brian Jorgensen, as well as the transfer of 9 shares in Grancroft to Mr Brian Jorgensen.

5    On 28 April 2016 in Jorgensen v Jorgensen & Ors [2016] QSC 193 Justice Daubney in the Supreme Court of Queensland ordered as follows:

1.    The applicant Brian Laurence Jorgensen has leave to apply for a vexatious proceedings order under the Vexatious Proceedings Act 2005.

2.    Pursuant to s 6(2) of the Vexatious Proceedings Act 2005, it is ordered that the first respondent Alan Jorgensen, or any entity controlled by the first respondent (including each of the second respondent and the third respondent) shall not without the leave of the Court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

3.    The respondents shall pay the applicant’s standard costs of and incidental to the application.

6    Subsequently in Jorgensen v Jorgensen [2016] QSC 235 on 30 September 2016, Justice Henry in the Supreme Court of Queensland ordered as follows:

1.    pursuant to s 25(1) of the Civil Proceedings Act 2011, proceeding D180/2016 in the Townsville Registry of the District Court of Queensland is transferred to the Cairns Registry of the Supreme Court of Queensland;

2.    proceedings D180/2016 is permanently stayed;

3.    Trudy Jorgensen shall not, without leave of the court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust; and

4.    the Respondents pay the Applicants costs of this application and of proceeding D180/2016 to be assessed on the standard basis.

7    Ms Trudy Jorgensen (who I understand from an affidavit of Mr Brian Jorgensen in these proceedings filed 8 March 2019, is the daughter of Mr Alan Jorgensen) commenced proceedings in the Federal Court in a separate matter, NSD 83 of 2019, seeking relief against Mr Justin Cadman and Mrs Patricia Jorgensen. This relief was similar to the relief sought by Mr Alan Jorgensen in his proceedings in this Court in NSD 756 of 2019, to which I will refer later in this judgment.

8    On 22 March 2019 the docket Judge in NSD 83 of 2019, Justice Gleeson, ordered the joinder of Grancroft to the proceedings in NSD 83 of 2019. However I note that on the same date her Honour also granted leave to Ms Trudy Jorgensen to electronically file a notice of discontinuance of the proceedings in NSD 83 of 2019 pursuant to r 26.12 of the Federal Court Rules 2011 (Cth).

The current originating application

9    Materially, on 8 March 2019 Mr Brian Jorgensen filed an originating application in the Federal Court proceedings QUD 176 of 2019 seeking the following Orders:

1.    An order under section 37 AO of the Federal Court of Australia Act 1976, prohibiting Alan Bradley Jorgensen, and any entity controlled by him, from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

2.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Trudy Leanne Jorgensen, and any entity controlled by her, from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

3.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Farmers Fruit Box & Plastics Pty Ltd from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

4.    An order under section 37 AO of the Federal Court of Australia Act 1976, prohibiting Mijac Investments Pty Ltd from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

5.    An order that proceeding NSD 83 of 2019, commenced in the New South Wales District registry of the Federal Court of Australia be dismissed, or in the alternative, permanently stayed.

6.    An order that the respondents pay the applicant's standard costs of this proceeding

10    On 4 July 2019 I made the following case management Orders in QUD 176 of 2019:

1.    By 18 July 2019, the Applicant have leave to file and serve an amended originating application in the form of annexure BLJ6 to the Affidavit of Brian Laurence Jorgensen filed 19 June 2019.

2.    Pursuant to Rule 9.05 of the Federal Court Rules 2011, PPB Co Pty Ltd ACN 616 069 473 be added as a Respondent to the proceeding.

3.    Other than in relation to proceedings in NSD756/2019, the Respondents themselves and through any entities that they control, neither institute nor cause to be instituted, proceedings nor take or cause to be take, steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other Order of this Court.

4.    No proceeding or application of the type referred to in Order 3 be accepted for filing until the determination of the originating application or other Order of this Court.

5.    The Respondents file and serve any affidavit material upon which they seek to rely, by 4.00 pm on 9 September 2019.

6.    The Applicant file and serve any responsive or additional affidavit material upon which he seeks to rely, by 4.00 pm on 9 October 2019.

7.    The parties file and serve their written submissions by 4.00 pm on 25 October 2019.

8.    The matter be listed for hearing for one day at 10.15 am on 6 November 2019 in Brisbane.

9.    The parties may not adduce any further evidence at the hearing without the leave of the Court.

10.    The parties have liberty to apply on three clear business days’ notice.

11.    Costs be in the proceeding.

(Emphasis added.)

11    These Orders remain in place.

12    Subsequently on 5 July 2019 Mr Brian Jorgensen filed an amended originating application in which he sought the following relief:

1.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Alan Bradley Jorgensen, and any entity controlled by him, from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

2.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Trudy Leanne Jorgensen, and any entity controlled by her, from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

3.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Farmers Fruit Box & Plastics Pty Ltd from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

4.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting Mijac Investments Pty Ltd from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

5.    An order under section 37AO of the Federal Court of Australia Act 1976, prohibiting PPB Co Pty Ltd from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

6.    An order under section 37AO of the Federal Court of Australia Act 1976, restraining each of the respondents from any act which causes, allows, or procures the appointment of a trustee to the Jorgensen Family Trust, whether as a new trustee, replacement trustee, alternate trustee, or otherwise.

7.    An order under section 37AO of the Federal Court of Australia Act 1976, restraining each of the respondents from any act which causes, allows, or procures the exercise of any power of an appointer or guardian under the Jorgensen Family Trust (including the appointment of a new appointer).

8.    An order under section 37AO of the Federal Court of Australia Act 1976, restraining each of the respondents from dealing with any chose in action (whether by alienation, assignment or otherwise) which chose in action arises from, or is connected with, the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.

9.    An order that proceeding NSD 756 of 2019, commenced in the New South Wales District registry of the Federal Court of Australia be dismissed, or in the alternative, permanently stayed.

10.     An order that the respondents pay the applicant's standard costs of this proceeding.

13    This amended originating application filed on 5 July 2019 is the substantive application in the proceedings in QUD 176 of 2019. The trial of this application is currently listed for one day on 6 November 2019.

NSD 756 of 2019

14    The Federal Court proceedings in NSD 756 of 2019 (to which reference was made in paragraph 3 of my Orders of 4 July 2019 and in paragraph 9 of the amended originating application) were commenced by Mr Alan Jorgensen. In his originating application filed on 1 May 2019 in NSD 756 of 2019, Mr Alan Jorgensen sought relief in the following terms against his mother Mrs Patricia Jorgensen and Mr Justin Cadman:

A. DETAILS OF APPLICATION

This Application is made under the Federal Court Rules ADR Part 28.1,28.4, Corporations Act 2001 pursuant to SECS 241 and 247 A and S3AD Business affairs of a trust, on the facts stated in the supporting affidavit of Alan Bradley Jorgensen dated 20th April 2019.

It is an Application seeking to determine if 2 Fiduciaries involved with the Applicant, breached their Fiduciary Duties owed and caused the Applicant loss and damage. Alternatively, if they did breach their duties owed, was it a 'victimless crime', as the Applicant Trust, ended up suffering no loss or damage. All the 3 Parties are quite bereft and so have agreed to try and resolve this dispute via ADR.

B. DECLARATION and ORDERS SOUGHT

Based on the facts stated in the supporting affidavit, the Applicant seeks:

1.    An Order pursuant to the Federal Court's ADR Rules Part 28.1,28.4 to refer this case to ADR to resolve the issue of whether or not, the First Respondent, Justin Cadman breached his Fiduciary Duty owed to the Applicant Trust whilst performing his duty as a Public Accountant, where he unlawfully purportedly transferred 9 of 10 shares [ therefore Control ] in a Trustee Company, owned beneficially by Patricia Jorgensen to Brian Jorgensen on 13 April 2014 without her knowledge or consent.

2.    An Order pursuant to the ADR Rules Part 28.1, 28.4 to refer this case to ADR to resolve the issue of whether or not, the Second Respondent breached her Fiduciary duty owed to the Applicant Trust, whilst performing her duty as Co Director of the Trustee, Grancroft Pty Ltd, which controlled a Trust in which the Applicant held 45% of the Units, which Units were purportedly sold to the Managing Director of that Trustee, without the consent or knowledge of the Applicant Trust.

3.    The Applicant has already engaged an Independent Expert Witness to investigate the books and records of that Trust and Trustee to ascertain whether in fact the Respondents did sign off on the required company documents to give effect to the alleged fraudulent transfers of the said 9 shares and 9 Units. The Parties desire that this matter be referred off to a Court appointed Case Appraiser or Referee for determination as to whether or not, the Respondents' breached their respective Fiduciary Duties.

4.    That this Application pursuant to the FCA Act 37M(l) (b) Overarching Purpose to Resolve disputes "as quickly, Inexpensively and efficiently as possible", then where possible, this initial matter of the Court making the above Orders, be dealt with 'On the Papers' without Oral Argument, in Chambers, if initially Consented to in writing by all the Parties herein.

5.    That this matter he expedited given that the Second Respondent is aged 88 and very unwell and for family reasons, dearly wants this alleged Breach of Fiduciary Duty against her, resolved whilst she is still here.

6.    Any other Orders that the Court deems fit to give efficacy to the Orders made.

(Emphasis in original.)

15    In submissions in NSD 756 of 2019 filed on 4 September 2019, Mr Alan Jorgensen submitted, in summary:

    Previously he maintained focus on QUD 716 of 2019 because Grancroft, Mr Brian Jorgensen and their legal representative had no business trying to interfere in the substantive proceedings;

    He and the respondents were endeavouring to be “model litigants” by seeking alternative dispute resolution and a Court-appointed case appraiser;

    The current interlocutory application should properly be characterised as:

‘big brother’ with a ‘lazy’ ill-gotten $40M in his pocket (45% belonging to my family trust) trying to “gate crash” this gentle little ADR proceeding, and steam roll us all, like they have for the last 5 years…But here, Miller Harris & my twin brother, Brian Jorgensen, are not even a Party, yet want to totally destroy the almost sacred overarching principle of Section 37M, introduced by this Court.

    Mr Brian Jorgensen had “blatantly defraud[ed] his own family for $20M then [sought] Orders to permanently block that family from every suing them for their major $20M fraud”;

    The lawyers for Mr Brian Jorgensen were complicit in the alleged conduct of Mr Brian Jorgensen; and

    The Court ought to allow the alternative dispute resolution to continue.

16    In an interlocutory application filed on 29 August 2019 in NSD 756 of 2019, each of Grancroft Pty Ltd and Mr Brian Jorgensen applied to be joined as respondents to the proceedings in NSD756 of 2019.

17    On the morning of the hearing of that interlocutory application in NSD 756 of 2019 on 5 September 2019, Mr Alan Jorgensen filed a notice of discontinuance of those proceedings. No explanation for that discontinuance was provided. I granted leave for the proceedings in NSD 756 of 2019 to be discontinued.

Current events in relation to QUD 176 of 2019

18    On or about 16 September 2019 it appears that Mr Alan Jorgensen sought to file a new interlocutory application in QUD 176 of 2019. In his letter of that date, Mr Jorgensen wrote, inter alia :

…

It would seem that it would be in the interests of justice, that this Application be heard and determined prior to the trial set down for 6th November 2019.

I am overseas until 14th October 2019, so would ask that this Application be heard anytime in October after that date, but before 28th Oct.

In Chambers, without Oral Hearing, "on the papers" is OK by me.

Given that up to 12 Witnesses, as per the list in my attached affidavit, will be required to give evidence at the 6th November trial, it would be appreciated if this Interlocutory Application could be determined at least a week prior.

It is my respectful view that if the Court in this proposed Application, checks the Rainbow Inn Unit Trust Deed and decides who the current registered legal owners are, then the 6 November Trial can be settled without having this trial, as there would be undertakings given by me and my associated parties about not issuing any future proceedings against Brian Jorgensen and his family.

Such a suggested course would I expect, be very much in line with this Court's 37M Overarching Purpose of resolving disputes as economically and efficiently as possible.

As it currently sits, my twin brother seeks illegal and impossible Orders from this Court that he can never be sued by me or my family, for his illegal actions as the Trustee, in transferring my family's long held 45% share in the Rainbow Unit Trust, worth over $10,000,000, to him and his wife's company (at only 1/8th its sworn value at time!).

The Trustee's purported Transfer to himself, is highly illegal and simply not permitted by law, under any circumstances (by Equity's cornerstone "Self Dealing Rule"), yet my twin brother 'childishly', seeks Orders from this Court, to grant him immunity forever! Good grief!

His Lawyers are personally liable under 37M for filing for such illegal Orders, that can never ever be granted and is in Violation of Sect 6 of the Civil Dispute Resolution Act 2011 in failing to file a Form 16 Rule 8.02 Genuine steps statement.

(Emphasis in original.)

19    The interlocutory application Mr Alan Jorgensen sought to file on that date sought the following relief:

1.    That pursuant to Sect 37M Overarching Purpose of the FCA that prior to the proposed Trial of this matter on 6th November 2019, the issue of settling this 37AO matter by simply clarifying the official ownership of the Rainbow Motor Inn Unit Trust, should first be explored. Once the Court ratifies, or otherwise, the Official ownership of the Trust, then this 37AO Application appears no longer be relevant, as all FCA proceedings will naturally cease, as nothing left to argue, as it has been all about the Official Ownership which is easily recognisable by a judge.

2.    To that end and pursuant to the Qld Trusts Act 1973 Sect 8 Application to court to review acts and decisions, the First Respondent, who is the principal of the Jorgensen Family Trust, which has always been the legal owner of 45% of the Rainbow Motor Inn Unit Trust, according to the Trust Deed, seeks Orders that the Court Review the illegal decision of the Trustee's Managing Director to try and transfer the Respondents' 45% ownership over to himself, which is highly illegal.

3.    Likewise under the above Sect 8, the Court review the decision of that Managing Director to also steal the controlling shareholder's 9 shares, so as to arrest control of that $20,000,000 Trust, just a year before that 30 year Trust was due to vest on 30 June 2015.

4.    That because of the Applicant's blatant abuse of his Fiduciary and Trustee Duty, to try and defraud the 2nd Beneficiary of the Trust of at least $10,000,000, that pursuant to Sect 80 of the Qld Trusts Act 1973 Power of court to replace trustees, then the Trustee be replaced, especially given the 30 year Term of the Trust already vested on 30 June 2015.

5.    Alternative to Order(4), Orders are sought pursuant to the Corporations Act Sect 241 General Powers of the Court for the Controlling shareholder of the legal Trustee, Grancroft Pty Ltd, be allowed to exercise her inherent right, to appoint 2 new Directors to the Trustee Board, who will themselves sort of the legitimate course to take, according to the Trust Deed. Whereas for the last 34 years, Brian Jorgensen has made every decision by himself and violated every imaginable trustee duty and in doing so, has defrauded the 2nd Beneficiary for over $10M, and now seeks to obtain impossible Orders, to prevent himself from ever being brought to court to face justice.

6.    Costs Reserved

7.    Any other Orders this Court sees fit.

(Emphasis in original.)

20    On 4 October 2019 Mr Jorgensen emailed the Registry, copying the solicitor for Mr Brian Jorgensen, in the following terms:

Dear Associate of Justice Collier, I am writing to seek clarification of this matter, in particular concerning my latest 16 Sept attached Application which I claim must be determined Prior to the matter of a Banning Order being made forever, on our ability to sue my brother, the Applicant, for Fraud in trying to steal my family’s 45% ownership of the Rainbow Motor Inn Unit Trust, which 45% is worth $10m to $20M.

Since filing this attached Application, 2 things have happened.

1.    I have read with great interest, the attached “Fraud, The Forgotten Equity” & “Fraud & Error in Proceedings” and just now appreciate the seriousness and remedies involved when Fraud has been used to gain a Court decision, including a Writ of Certiorari or Mandamus etc. Including the “Unravelling” of all subsequent judgements, including Vexatious Litigant Orders.

2.    Clear, inarguable evidence that a fraud has been involved at the very beginning of this almost 5 year saga, where Justice Henry in Cairns failed to recuse himself, due to him being well known to Brian Jorgensen and indeed, has socialised with him and their mutual best friend. Apart from the evidence I now have, Henry J, I presume, can simply be asked if it’s true or not.

From Henry J’s obvious extreme bias, has caused us to seek a Fair Hearing in NSW, away from the Cairns extreme “home ground” advantage, where Miller Harris had previously paid Jim Henry QC, millions of dollars in QC fees in the immediate years before Henry J was appointed a SC Justice in Cairns. And because Miller Harris were the architects of this $10M fraud on us, as shown on the attached Qld Stamp Duty Assessment for the fraudulent purported transfer, officially showing sworn value at $1,057,654, which is 8 x more than the $125,000 unlawful Sale Agreement shows (also prepared by Miller Harris who were acting for us as 2nd beneficiary) and that it was in fact the Rainbow Trust (owned 45% by my family) who disgustingly, paid the $125,000 purchase price, not Mainrace the Purchaser (which Miller Harris well knew), then it would be a major travesty of justice, should the Application first proceed, to get Orders to forever block me and my family from suing my brother (the Trustee effectively) and his co conspirator lawyers and accountant from being brought to justice. Little wonder Miller Harris trying to protect their own criminal fraud charges, persuaded Brian Jorgensen to spend $100,000 cash (of Trusts money) to get that Vexatious Order.

As stated, the current legal position according to the Rainbow Trust Deed and in Law, is that there has been NO LEGAL TRANSFER WHATSOEVER, of our 9 Units ( 45%) over to the Trust’s Directors, husband & wife team, because not only is it not allowed by law, ( Self Dealing Rule) but any Company Resolution required absolutely, the signatures of at least 2 Directors which at the material time was Patricia Jorgensen & Brian Jorgensen. Patricia Jorgensen ( proxy for me) naturally never signed off, or indeed, knew about any proposed sale. The Trust Deed has many safety mechanisms in it to prevent this very sort of rorting of a Beneficiary’s interests. She first new in Feb 2015 when Miller Harris were forced to handed over the Purported Sale Agreement & Trust Deed. And Patricia Jorgensen was & still legally is, the 90% controlling shareholder of Grancroft Pty Ltd the Trustee for 30 years, which they all conspired to steal from her, whilst dying in hospital. Has there been a more disgusting and blatant defrauding of a beneficiary, ever?

Every solicitor and barrister and accountant and Judge, well knows a Director cannot, shall not, will not, acquire the assets of a member or beneficiary, where he has made a profit, especially at the expense of the shareholder that Appointed him the Managing Director, to care for the member’s money.

Given the Fraud at very beginning and the depth of this conspiracy to defraud us of over $10M, it would appear a Writ of Certiorari or Mandamus would be assured under the ADJR Act. But in line with Sect 37M and the interests of justice, we ask this Court to simply, first deal with this new Application.

Thanks

Alan Jorgensen

(As per original.)

21    On the same date the Federal Court Registry emailed Mr Jorgensen, stating inter alia that:

The Order of Justice Collier made 4 July 2019 states:

3. Other than in relation to proceedings in NSD756/2019, the Respondents themselves and through any entities that they control, neither institute nor cause to be instituted, proceedings nor take or cause to be take, steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other Order of this Court.

4. No proceeding or application of the type referred to in Order 3 be accepted for filing until the determination of the originating application or other Order of this Court.

This means that no further application can be filed until the determination of the originating application in this proceeding or other Order of the Court.

It is also noted that the respondents were to file and serve their affidavit material by 9 September 2019. No affidavit material has been filed by the respondents pursuant to this Order.

22    By return email Mr Jorgensen stated as follows:

Dear Associate, Re your below concerns I wish to advise that m interpretation of that Order, was always that it referred to any other Proceedings being issued & not this existing proceeding.

Because this Proceeding is already afoot & naturally has lots of steps to play out, before the Trial can be properly conducted.

Eg. Many Witnesses are being called (12 by me) & Particular Discovery of material referred to in the Applicant’s and his Solicitor’s Affidavits, need to be produced & tested as per the Rules, to check if they are accurate or indeed true.

In any case, Justice Collier’s Order 10, as per usual, provided that any further need to apply, concerning this Proceeding, can be made with 3 clear business days’ notice.

“10.The parties have liberty to apply on three clear business days’ notice.”

Please accept my latest material lodged on the 13th Sept 2019, as me taking that liberty and as such have applied, pursuant to that Order.

Regarding my Affidavit material referred to in Order 5 to be filed & served by the 9th Sept, I accepted the Applicant’s solicitor’s consent, to being served up until 13th Sept 2019 and did so.

For ease of reference, below is an extract from Justice Collier’s attached Orders of 4th July 2019.

3. Other than in relation to proceedings in NSD756/2019, the Respondents themselves and through any entities that they control, neither institute nor cause to be instituted, proceedings nor take or cause to be take, steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other Order of this Court.

4. No proceeding or application of the type referred to in Order 3 be accepted for filing until the determination of the originating application or other Order of this Court.

5. The Respondents file and serve any affidavit material upon which they seek to rely, by 4.00 pm on 9 September 2019.

10. The parties have liberty to apply on three clear business days’ notice.

I also note that Party’s are safeguarded in law, against any deprivation of their lawful rights, especially Procedural Fairness, by the filing of a Writ of Mandamus, or also in this case, a Writ of Certiorari, given the Fraud involved in the Applicant’s gaining of the initial Henry J decision in Cairns in Mid 2015.

Conclusive evidence has just now come to hand, to prove that Henry J and Brian Jorgensen have socialized together over a period of time including when that matter first commenced before Justice Henry.

According to the attachments on this issue, if a Writ of Certiorari intervenes & the above Fraud is proven, then every subsequent decision, including the Vexatious Litigant Order, is set aside.

This proceeding also cannot proceed, as apart all subsequent decisions being “unravelled” if proven, then apart from everything else, there would be no grounds to sue on.

The perils of a small city Court Proceeding, especially when there is $10m to $20m at stake and where the Applicant is rich and well connected having lived there for 40 years, and likewise QC Jim Henry & in recent times, as Justice Henry, are such that the AIJA states that Judges must be especially vigilant to ensure there are no conflicts of interest, that might give rise to the Appearance of Bias or indeed, contravening that quintessential requirement that “… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” 1

See attached the famous leading authority, King vs Sussex Justices [1924] on that fundamental of our judicial system and Ex CJ Spigelman’s paper.

Having said all the above, it appears to me that to avoid a ‘meltdown’ after the effect of a Writ of Certiorari has prevailed, that in the interests of justice & pursuit of a Fair Hearing, that my Application of 13th September 2019 that moves to ensure the issue of lawful ownership of the said 45% & 90% of Mijac shares, are determined first.

If not, then it looks like a Writ of Certiorari must surely be obtained, to head off a major miscarriage of justice here.

The Miscarriage of Justice is that to date, the Courts have been blocked at every step ( costing over $1m in legal fees) from just looking for 15 minutes, at the Rainbow Trust Deed to see the clear evidence that my Family Trust still owns the 45% that it had since 1977 & that it is only Miller Harris’ & Brian Jorgensen’s & Justin Cadman’s Conspiracy to Defraud & pull off this $10M trust fraud, that blocks a judge of any level, to spend 15 minutes to see the true legal ownership.

And with all due respects, it seems her Honour appears also headed down that same path of not wanting to take that vital 15 minutes needed, to first Review this blatant rort by the Trustee Director & his co conspirators at Miller Harris, who are the architects of this $10M trust fraud and have been paid way over $1.5m to do so.

Fortunately, I am now aware that the universal principles of justice, and Right to a Fair Hearing inc Procedural Fairness, has many protective mechanisms in place, to prevent such a manipulation of the Court system.

So it seems that pursuant to Order 10, we really need to have a Directions Hearing within say 2 weeks, to avert the looming ‘train wreck’.

Thanks,

Alan Jorgensen

Respondent

(As per original.)

case management hearing on 21 October 2019

23    I directed the parties to attend a case management hearing before me on 21 October 2019 in QUD 176 of 2019. During the course of that case management hearing Mr Alan Jorgensen made submissions concerning the desirability of the Court exercising its discretion to grant him leave to file the interlocutory application he had sought to file on 16 September 2019. In particular, Mr Alan Jorgensen submitted:

    He sought to prove breach of fiduciary duty by Mr Brian Jorgensen;

    He sought to prove that Mr Brian Jorgensen had sought to defraud him of his share of the Rainbow Motor Inn Unit Trust, worth between in excess of $10million (and potentially up to $80million);

    The lawyers of Mr Brian Jorgensen had been complicit in this breach of fiduciary duty and fraud;

    He plans to seek a writ of certiorari against Justice Henry of the Supreme Court of Queensland, who was biased in favour of his friend Mr Brian Jorgensen;

    He intends to call 12 witnesses relevant to these issues at the hearing, currently listed for 6 November 2019;

    He intends to cross-examine Mr Timothy McGrath, the lawyer for Mr Brian Jorgensen, at the hearing on 6 November 2019; and

    Mr Brian Jorgensen’s lawyers had failed to produce documents he had sought, which he requires for the hearing on 6 November 2019. In the absence of those documents he will not be ready for the hearing on that date.

24    After hearing Mr Alan Jorgensen, and also hearing submissions by Mr Ivessa for Mr Brian Jorgensen, I ordered that Mr Alan Jorgensen’s interlocutory application not be accepted for filing. I also ordered that Mr Timothy McGrath not be cross-examined at the hearing on 6 November 2019, and, to the extent that Mr Alan Jorgensen had orally applied for the hearing of 6 November 2019 to be vacated, that application be refused. I made these Orders for the following reasons.

Refusal of order to permit filing of interlocutory application

25    First, although Mr Alan Jorgensen had not formally applied for an order that his interlocutory application lodged on 16 September 2019 with the Federal Court Registry be accepted for filing, nonetheless from a case management perspective the fact that that application had been lodged required the Court to make a decision about its acceptance for filing. This is particularly so in light of the imminent trial of the substantive proceedings in QUD 176 of 2019, and my Orders of 4 July 2019 which included that, inter alia, Mr Alan Jorgensen not institute nor cause to be instituted, proceedings nor take or cause to be taken, steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other Order of this Court. I note further that Mr Alan Jorgensen is a litigant in person, and despite his apparent lengthy experiences with Court process, may have been unaware of the need to formally apply for an Order in terms of that required by the Orders of 4 July 2019 in respect of his proposed interlocutory application.

26    Second, the case management hearing of 21 October 2019 lasted approximately one hour, during which time I invited both parties to make submissions, and Mr Alan Jorgensen made detailed oral submissions in support of his claim that his interlocutory application be accepted for filing.

27    Third, Mr Alan Jorgensen submitted in particular that he should be granted an order to file his new interlocutory application, because Order 3 of the Orders dated 4 July 2019 restrained him and the other respondents from filing further proceedings connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, only until the determination of the originating application or other Order of this Court. He also submitted that he was empowered to seek to file a further interlocutory application because the parties had been granted liberty to apply on 4 July 2019.

28    It is true that the Orders of 4 July 2019 contemplated that the Court could make Orders dispensing with the restriction on the commencement or filing of further proceedings connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd. It is also true that the Court ordered liberty to apply on that date. However:

    The fact that Orders 3 and 4 of the Orders of 4 July 2019 restrained further applications within those terms until the determination of the originating application or other Order of this Court does not entitle Mr Alan Jorgensen to file substantive applications relating to or connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, and have those matters determined before the present substantive application listed for hearing on 6 November 2019 is heard. At most, Mr Alan Jorgensen is entitled to be heard as to whether an Order in his favour should be made in terms of Orders 3 and 4 of 4 July 2019. Such an Order must be considered in terms of the existing case management arrangements in relation to the present proceedings, the hearing listed for 6 November 2019, and the interests of justice to both parties.

    Further, as the High Court observed in Spry v Kennon [2008] HCA 56 at [103], reservation of liberty to apply is directed to questions of machinery which may arise from other orders which the court in question has made. So, for example, parties may seek liberty to apply if they have difficulties effectively complying with existing orders of the Court (such as in relation to the filing of documents by nominated dates). The filing of entirely new, substantive proceedings does not fall within the ambit of “liberty to apply” for the purposes of the present proceedings.

29    Fourth, the interlocutory application Mr Alan Jorgensen sought to file clearly canvassed substantive issues of equity and trust law outside the scope of the current proceedings before the Court, which were instituted pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth).

30    Recently in Mbuzi v AGL Sales Pty Ltd [2018] FCAFC 226 the Full Court noted that, under s37AO(1)(a), the essential elements an applicant must prove to succeed in an application pursuant to that section are that the relevant litigant has:

(a)    frequently;

(b)    instituted or conducted;

(c)    vexatious proceedings;

(d)    in Australian courts or tribunals.

31    Justice Logan (with whom Davies and Steward JJ agreed) in Mbuzi approved comments of Justice Reeves in Mathews v State of Queensland [2015] FCA 1488 at [81] – [92] as a summary of the relevant principles. These comments of Justice Reeves included the following:

[82]  Furthermore, under s 37AO(3)(c), the State must demonstrate that Mr Mathews has instituted or conducted at least one vexatious proceeding against it in order for it to have standing to bring this application. As well, s 37AO(4) contains a requirement that, before any vexatious proceedings order is made, Mr Mathews must be heard on the application or given an opportunity to be heard. Having regard to the history of this application recorded at [32] and [40] above, I consider this requirement has been well met.

[83]  Set out below are some pertinent observations that have been made in relatively recent decisions of this Court, and others, about the meaning and scope of each of the above elements.

“Frequently”

[84]  The term “frequently“ is not defined in s 37AO, or elsewhere in the Federal Court Act. It therefore has its ordinary meaning: see Fuller at [33]; Garrett v Commissioner of Taxation (2015) 147 ALD 342; [2015] FCA 117 (Garrett) at [8] per Pagone J and Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927 (Mulhern) at [10] per Gleeson J. In Fuller, the Full Court adopted (at [33]) the observations of Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (HWY) as an apt analysis of the word “frequently”. Her Honour said:

110 Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings ‘frequently’. As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [11]:

It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law — see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported — Supreme Court NSW, Holland J — 29 March 1978).

111 Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted “habitually and persistently“. That test had been said to imply “more than great frequency“, the word “[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J.

112 The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered“: Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the court may find that a person has instituted or conducted vexatious proceedings “frequently“ even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).

[85]  It follows that no numerical threshold is prescribed in the legislation and the question whether a person has “frequently“ instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case: see HWY at [114].

“Instituted or conducted”

[86]  As with the word “frequently“, the term “conducted“ is not specifically defined in s 37AO or elsewhere in the Federal Court Act. However, the word “institute” is “specifically defined [in s 37 AM] in an inclusory way so as, materially, to include, ‘the taking of a step or the making of an application that may be necessary before proceedings can be started against a party’”: see Fuller at [36]. In Fuller, the Court gave some examples of what the terms “instituted“ and “conducted“ may encompass, as follows (at [38]):

A statement of claim may show that, having regard to earlier proceedings, a current proceeding has been “instituted” vexatiously. The filing and service of a grossly inadequate statement of claim, exhibiting like inadequacies to those already determined by earlier proceedings, may also show that a proceeding is being “conducted“ vexatiously …

“Vexatious proceedings”

[87]  As Pagone J pointed out at [4] in Garrett, the word “vexatious“ is not separately defined in s 37 AM, or elsewhere in the Federal Court Act. That being so, his Honour adopted the following observations about that expression in the decision of the Full Court of the Supreme Court of Victoria in Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed, at 12):

In the light of the mischief to which the section is directed, however, it seems to me that the word “vexatious” is not in this context a term of art and is an omnibus expression, which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word “vexatious” in the statute.

In Mulhern (at [8]), Gleeson J followed Pagone J in adopting these observations and I propose to do likewise here.

[88]  Furthermore, in determining whether a proceeding is vexatious, it is also necessary to have regard to the definition of the expression “vexatious proceeding“ in s 37 AM of the Federal Court Act. That definition inclusively describes four bases upon which a proceeding may be found to be vexatious, namely:

(a) a proceeding that is an abuse of the process of a court or tribunal; and

(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another.

[89]  In Attorney-General (NSW) v Chan [2011] NSWSC 1315, Adamson J said of an equivalent provision in the corresponding legislation in New South Wales, being the Vexatious Proceedings Act 2008 (NSW), that (at [33]):

These categories are not discrete, since each of the subparagraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between subparagraph (b), which connotes an objective intention on the part of the Defendant, and subparagraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not.

See also HWY at [106] per Perry J and Garrett at [4] per Pagone J.

[90]  The relitigation of matters that have been decided previously, or seeking to institute further proceedings in relation to matters that have been raised, or should more appropriately have been raised, in other proceedings, have been held to constitute vexatious proceedings within the terms of the expression: see Garrett at [11] per Pagone J. So, too, has the institution or pursuit of proceedings without reasonable grounds: see Garrett at [23] per Pagone J and Mulhern at [9] per Gleeson J.

[91]  Section 37 AM of the Federal Court Act defines “proceeding” as follows:

(a) in relation to a court — has the meaning given by s 4; and

(b) in relation to a tribunal — means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

[92]  Section 4 (referred to in para (a) above) defines “proceeding“ to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal“. Various types of interlocutory application have been held to fall within the definition of the term “proceeding“, including:

(a) an interlocutory proceeding within a substantive proceeding directed to the attainment of final relief: see Mulhern at [7];

(b) an interlocutory application seeking a stay of an appeal and one seeking leave to amend the grounds of an appeal: see Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [38]–[39] per Gilmour J; and

(c) an application for an extension of time in which to appeal, an oral application for an adjournment and an application for the issue of a subpoena: see HWY at [102] per Perry J.

32    It is clearly premature to make any observations about the merits or otherwise of the s 37AO amended originating application in these proceedings. That is an issue for trial on 6 November 2019. However to the extent that Mr Alan Jorgensen sought to file an application which required determination of alleged breaches of fiduciary duties and equitable fraud by Mr Brian Jorgensen and others, it is clear that:

    Mr Alan Jorgensen’s application could scarcely be described as “interlocutory” to the extent that it sought final relief in respect of serious issues of equity and fraud, which have been the subject of many previous applications both in this Court and in other jurisdictions;

    The claims contemplated by that interlocutory application were serious claims going to the merits of Mr Alan Jorgensen’s substantive and ongoing complaints against his brother, the frequency and repetitiveness of which I note are precisely the subject of Mr Brian Jorgensen’s claims in the current s 37AO application listed for hearing on 6 November 2019;

    A hearing of the claims Mr Alan Jorgensen sought to ventilate in his interlocutory application would require detailed case management Orders to ensure that all parties were given a proper opportunity to present their cases to the Court and be heard. If the substantive amended originating application currently before the Court in QUD 176 of 2019 is found to be without substance, Mr Alan Jorgensen will not be prevented from prosecuting his complaints. If, however, Mr Brian Jorgensen’s claims of vexatious conduct by Mr Alan Jorgensen are found to be substantiated, it would be inefficient in my view from a case management perspective for Mr Alan Jorgensen’s interlocutory application to consume Court resources of case management at this time, as well as the financial and temporal burden it would impose on the respondents to that interlocutory application.

    The question whether Mr Alan Jorgensen has commenced, or is commencing, proceedings which are “vexatious” within the meaning of s 37AM of the Federal Court Act require consideration of completely different legal issues to those Mr Alan Jorgensen seeks to ventilate in his interlocutory application.

    Mr Alan Jorgensen was granted leave by my Orders of 4 July 2019 to pursue existing claims of breach of fiduciary duty in NSD 756 of 2019. That proceeding was excluded from the restraint on prosecution of proceedings in Orders 3 and 4 of the Orders of 4 July 2019. Mr Alan Jorgensen elected to discontinue proceedings in NSD 756 of 2019 for reasons he did not disclose. That was a forensic choice he made. It would be inappropriate in my view to allow him to institute fresh claims relating to allegations of breach of fiduciary duty against Mr Brian Jorgensen, in circumstances where he is aware of the s 37AO case currently against him in respect of those types of claims.

33    Further, to the extent that the matter came before me in the course of a case management hearing, and I ordered that Mr Alan Jorgensen not be granted leave to file his new interlocutory application, I note that rule 1.40 of the Federal Court Rules provides:

Exercise of Court’s power

The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

(a)    on its own initiative; or

(b)    on the application of a party, or a person who has a sufficient interest in the proceeding.

34    See for example Mulhern v Morgan [2017] FCA 1183 at [11] and Johnston v Judge Middleton [2019] FCA 966 at [12]-[13].

35    In this regard I note:

    Whether Mr Alan Jorgensen should be granted an Order to file his interlocutory application, arose from earlier case management Orders of this Court of 4 July 2019.

    He had made no formal application for an Order – rather I directed that the matter return for case management in light of Mr Alan Jorgensen’s email correspondence with the Federal Court Registry.

    Mr Alan Jorgensen had provided detailed submissions in emails to the Federal Court Registry. He made lengthy oral submissions at the hearing before me on 21 October 2019.

    The Orders of 4 July 2019 specifically restrain him from filing further proceedings relating to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd until determination of the originating application in this proceeding, or until further Order of this Court. The interlocutory application Mr Alan Jorgensen sought to file on 16 September 2019 clearly related to “proceedings relating to, with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust and/or Grancroft Pty Ltd.”

    The Court is empowered by rule 1.40 to exercise powers on its own initiative where appropriate, including to refuse to make an Order in the terms sought by Mr Alan Jorgensen relating to the filing of his interlocutory application.

    I also note that the applicant, Mr Brian Jorgensen opposed the granting of leave by the Court for Mr Alan Jorgensen’s interlocutory application to be filed.

36    In these circumstances, I am satisfied that it was appropriate for me, at the case management hearing of 21 October 2019, to refuse to make an Order allowing Mr Alan Jorgensen to file his new interlocutory application.

Cross-examination of Mr timothy mcgrath

37    At the hearing on 21 October 2019, Mr Ivessa for Mr Brian Jorgensen sought a direction that Mr Brian Jorgensen’s lawyer, Mr Timothy McGrath, not be cross-examined at the hearing of 6 November 2019 by Mr Alan Jorgensen. I understand that Mr Alan Jorgensen has identified a list of witnesses likely to be called at trial and cross-examined by him, and that Mr McGrath’s name is on that list.

38    In summary, Mr Ivessa submitted that:

    There was no relevant evidence that Mr McGrath could give at the hearing of 6 November 2019;

    Mr McGrath’s affidavits simply annexed correspondence from Mr Alan Jorgensen, company searches and Court documents filed in other proceedings;

    To the extent that Mr Alan Jorgensen wanted to ask questions concerning the conduct of the law firm representing Mr Brian Jorgensen relating to share and trust transactions, relevant events occurred at a time before Mr McGrath joined the law firm;

    Mr McGrath had carriage of the proceedings for Mr Brian Jorgensen, and cross-examination of him on 6 November 2019 would be problematic for him and Mr Brian Jorgensen because Mr Timothy McGrath would be in Court at the trial instructing for Mr Brian Jorgensen;

    If there was any likelihood that Mr McGrath would be required to give evidence of a matter in dispute, Mr Brian Jorgensen would need to pay for another instructing solicitor to attend the trial and familiarise themselves in the meantime.

39    Mr Alan Jorgensen submitted, in summary, that he would require Mr McGrath for cross-examination because he needed to test Mr McGrath’s recollection of relevant events including in relation to documents, and he was an important witness.

40    On the basis of the material before the Court, and the arguments of the parties, I am unable to see that Mr Alan Jorgensen would be prejudiced in the current s 37AO proceedings by an order that Mr McGrath not be cross-examined. On the other hand, I consider that there would be serious prejudice to the conduct of Mr Brian Jorgensen’s case if Mr McGrath were to be cross-examined, for the reasons submitted by Mr Ivessa.

41    Further, I do not consider that the Court would be assisted by such cross-examination in circumstances where Mr McGrath’s evidence relates to correspondence from Mr Alan Jorgensen, company searches and Court documents filed in other proceedings.

Refusal to vacate trial date

42    In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, French CJ observed that:

23.    The Judicature Act Rules and their Australian offspring did not in terms make reference to the public interest in the expeditious dispatch of the business of the courts. The way in which proceedings progress has been left to the parties. This may be seen as an aspect of the adversarial system which is a dominant part of the common law inheritance of Judicature Act procedure. In this respect, however, the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.

(Footnotes omitted.)

43    Section 37M of the Federal Court of Australia Act 1976 (Cth) identifies the overarching purpose of civil practice and procedure provisions in being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

44    Mr Alan Jorgensen made an oral application for vacation of the hearing of 6 November 2019 on the basis that the applicant had, allegedly, not provided him with original documentation as he had requested.

45    I asked Mr Alan Jorgensen to be more specific as to the material which he claimed had not been provided, and he referred, inter alia, to trust records. Mr Ivessa for Mr Brian Jorgensen submitted that he was unaware of alleged non-compliance and requests for such information.

46    In my view, and in light of the principles of case management I have articulated, it was inappropriate to vacate the trial in circumstances where:

    My case management Orders of 4 July 2019 required filing and service of relevant material by the applicant by 9 October 2019;

    No issue had been made of any alleged non-compliance on the part of the applicant by Mr Alan Jorgensen prior to the case management hearing of 21 October 2019, and then only in the course of oral submissions by him;

    There was an absence of particularisation by Mr Alan Jorgensen of alleged non-disclosure;

    The trial is little more than 2 weeks away; and

    I consider that Mr Alan Jorgensen’s oral application for vacation of the trial may well be a strategic response by him to my refusal to order acceptance for filing of his interlocutory application (and accordingly, delay the hearing of the s 37AO application).

Conclusion

47    It was for these reasons that, on 21 October 2019, I made the Orders of that date in these proceedings.

Associate:

Dated:    23 October 2019