Federal Court of Australia

Jorgensen v Jorgensen (No 2) [2020] FCA 1318

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s (Mr Alan Jorgensen’s) application of 11 August 2020 be dismissed.

2.    The respondents, save for the second respondent, pay the costs of and incidental to the dismissal of the application filed 11 August 2020.

3.    The application which is exhibit 1 not be accepted for filling in the Court by the Registrar.

4.    The first respondent (Mr Alan Jorgensen) be permitted to appear at trial by audio visual means using the Microsoft Teams platform or by audio means using that platform or such other means as the Court may specify in the event that he files an application so to do on or before 30 September 2020.

5.    The second respondent (Ms Trudy Leanne Jorgensen) be removed as a party to the proceeding.

6.    Ms Tieu My Nguyen be added as the sixth respondent to the proceeding.

7.    Until the sixth respondent files a notice of address for service, service on the sixth respondent may be affected by both:

(a)    posting a copy to Suite 1A, Level 2, 802 Pacific Hwy, Gordon, 2072 NSW; and

(b)    emailing a copy to amy@platinumpizzaboxes.com.

8.    The applicant file and serve on the sixth respondent at the addresses specified in this order, a copy of this order together with the originating application and the evidence it proposes to rely upon at trial on or before 25 August 2020.

9.    The sixth respondent file and serve on the applicant, on or before 25 September 2020:

(a)    such affidavits, if any, upon which she proposes to rely; and

(b)    an outline of submissions of not more than 20 pages.

10.    On or before Friday, 2 October 2020 the applicant file and serve a supplementary outline of submissions in reply of not more than 10 pages.

11.    The sixth respondent, herself or through any entity she controls, neither 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 the Court.

12.    The applicant be granted leave to file and serve an amended originating application in accordance with the draft which is exhibit “TGM3” to the affidavit of Timothy Gerard McGrath, filed 13 August 2020.

13.    Save as otherwise provided by this order, costs be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    There are presently two interlocutory applications before the Court. One filed by the applicant, the other by one of the respondents, Mr Alan Jorgensen. Mr Alan Jorgensen has, exceptionally, also been granted leave to appear today in respect of the various corporate respondents.

2    Mr Brian Jorgensen’s the applicant’s, application is principally motivated and correspondingly initiated by a sad event, which is the death, so the evidence establishes, of the second respondent, Ms Trudy Leanne Jorgensen.

3    The nature of Mr Brian Jorgensen’s application is both to remove the second respondent as a party and to add a further respondent, Ms Tieu Nguyen, whom, on the evidence, is Mr Alan Jorgensen’s partner. It emerges from the evidence that she commenced, on 13 August 2020, a proceeding in the Supreme Court of New South Wales in which she, on the face of things at least, seeks similar relief to that which has already been the subject of proceedings in other courts, concluded to finality, as against Grancroft Pty Ltd. He seeks to add Ms Nguyen as a respondent, so as to seek final vexatious litigant orders against her, similar to those sought against the other respondents also an interlocutory order similar to that presently in force against the other respondents, preventing further attempts to litigate in respect of what is known as the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other order of the Court. In addition he seeks orders permitting substituted service in relation to Mr Nguyen.

4    As to the interlocutory order similar to that existing in respect of other respondents, the rationale for that is to be found in an earlier judgment of Collier J: see Jorgensen v Jorgensen [2019] FCA 1742. I do not propose to revisit that judgment, only to observe that it seems to me, to be consistent with the intent of the order earlier made to make a like interlocutory order in relation to Ms Nguyen, as a consequence of her being joined as a party. It is certainly apt to join her as a party.

5    Further, on the evidence, Ms Nguyen presently resides in Indonesia. It is apt, therefore, having regard to her having given Australian addresses and an email contact address, in respect of the New South Wales Supreme Court proceeding, to make an order in respect of service on her in the way sought in the interlocutory application. I am well-satisfied that documents sent by prepaid post to suite 1A, Level 2, 802 Pacific Highway, in Gordon, in New South Wales and emailed to the email address nominated in Mr Brian Jorgensen’s interlocutory application will, more likely than not, come to her attention.

6    As to Mr Alan Jorgensen’s interlocutory application filed on 11 August 2020, it seems to me that proposed orders 1, 2 and 9 sought in that application attempt to revisit earlier orders adverse to Mr Alan Jorgensen. It is in no way appropriate to revisit those orders, thus, the cross-claim that is sought to be filed ought not to be accepted.

7    There is no point in seeking to revisit the order that Mr Alan Jorgensen not be permitted to cross examine Mr Brian Jorgensen’s solicitor, Mr McGrath. Especially that is so because, on closer examination of Mr McGrath’s affidavits, he is, in effect, putting earlier Court orders and correspondence before the Court, which are said to be relevant to the making of the orders sought in the originating application. He is not relating controversial first person experience, either of conversations or of observations.

8    As to proposed order 3 in Mr Alan Jorgensen’s interlocutory application in relation to the provision of documents by notice to produce, the documents concerned are not documents which are referred to in the pleadings, or in affidavits. It looks to me, to be, in substance, an application for discovery but of documents which are not directly relevant to the issues raised by the originating application.

9    Proposed Orders 4, 5 and 6, in substance, seek orders permitting the delivery of interrogatories. It is exceptional, although strictly possible, for interrogatories to be permitted to be filed and served in a proceeding in this Court. But they must be, in some way, relevant to an issue in the proceedings. There is nothing about proposed orders 4, 5 and 6, which strikes me as relevant in relation to the issues raised by the originating application.

10    Proposed Order 7 seeks what is termed, a reassessment of trial dates although, in substance, it appears to me, it is an application for an adjournment. Understandably, given his residence overseas, at present, Mr Alan Jorgensen apprehends some difficulty in attending, physically, in person in Australia before the Court on the appointed trial dates, 13 and 14 October 2020.

11    It has been necessary, in the circumstances of the prevailing pandemic and related public health restrictions, for the Court to adapt its practice and procedure so as to balance those public health requirements with the need to afford parties an essential feature of natural justice, namely, an opportunity to be heard.

12    As the proceeding this morning exemplifies, it is possible to do that, although, not ideally, by telephone and also, for that matter, by audiovisual means through the Microsoft Teams platform. Mr Alan Jorgensen may, with respect, have been labouring under something of a misapprehension as to whether this type of facility was available. I should make it clear that I am only too willing, in the prevailing circumstances, to permit him to appear by that means. Indeed, I propose to make an order to that effect.

13    As to witnesses, it is perfectly possible, as a matter of technology, for witnesses to be heard either by telephone or audiovisual means. I well accept Mr Alan Jorgensen’s point that it is not an ideal means by which one can assess the demeanour of a witness. But, once again, it has been necessary to cut the trial cloth to meet the public health circumstances. It is possible, albeit not ideal, to assess the credit of witnesses, either by telephone or by audiovisual means.

14    Mr Alan Jorgensen should feel perfectly at liberty to make such application as he may be advised for the reception of the evidence of witnesses by such means, if need be. As I observed in the course of exchange in oral submissions, he will find, in that regard, a sympathetic ear as far as this Court is concerned in the prevailing circumstances.

15    Proposed Order 8 raises the question of the filing of a genuine steps statement by the applicant, Mr Brian Jorgensen. That, however, is not a requirement in a proceeding of this kind: see, as to this s 15(g) of the Civil Dispute Resolution Act 2011 (Cth).

16    There was also raised a question as to whether a further application, presently exhibit 1, made by Mr Alan Jorgensen and dated 17 August 2020, should be permitted to be filed. On analysis, this particular application is but another means by which has sought to agitate issues raised in proceedings which have already been determined.

17    Of course, it may be that in the event that fraud is established at trial, in respect of earlier judgments, it would not be apt to make a vexatious proceeding order. But that is a matter for assessment at trial, on the evidence to hand.

18    What follows, then, from the foregoing is that the orders sought by Mr Brian Jorgensen in his interlocutory application should be made that Mr Alan Jorgensen’s application filed on 11 August 2020 should be dismissed. As to that dismissal, subject to hearing from Mr Alan Jorgensen, it seems to me that, as Mr Brian Jorgensen has sought in responding to that application, costs should follow the event.

19    As to exhibit 1, the order that is apt is that the application, which is exhibit 1, not be accepted for filing in the Court by the Registrar.

Associate:    

Dated:    14 September 2020

SCHEDULE OF PARTIES