Federal Court of Australia
Storry v Weir (No 2) [2022] FCA 1360
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The interlocutory application filed 29 August 2022 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THOMAS J:
1 A final judgment in these proceedings was handed down on 7 July 2022: Storry v Weir [2022] FCA 794.
2 Ms Venetia Storry (the appellant) filed an interlocutory application on 22 August 2022 seeking a stay of the sequestration order under r 39.05 of the Federal Court Rules 2011 (Cth) (the Rules). On 26 August 2022, orders were made that the appellant file and serve any amended application seeking an order to set aside the judgment handed down on 7 July 2022 by reference to r 39.05 of the Rules by 29 August 2022.
3 Rule 39.05 of the Rules provides:
Varying or setting aside judgment or order after it has been entered
The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission.
4 On 29 August 2022, the appellant filed a document titled “Amended Interim application to set aside judgment and order” seeking the following “Interim orders”:
1. Set aside sequestration and interlocutory judgment order of QUD103/22
2. Hear on Consolidation associated matter QUD343/21
3. Restore the [appellant’s] license
4. Hear on Consolidation QSCA 4681/22 and transfer Acting Magistrate Smith’s file
5. Hear on Consolidation QCAT matters abandoned by the Trustee
6. Set aside the appointment of BRI Ferrier and allow the [appellant] to disperse funds
7. Incorporate discovery application
8. Hear on Consolidation of associated matters both merit and Judicial Review appeal of the Queensland Office of Fair Trading.
9. Award damages to the [appellant] and clients of the agency
10. Award costs to the [appellant]
(errors in original; emphasis omitted)
5 The final judgment has been handed down in these proceedings. A dissatisfied party has the right to appeal from that decision. The appellant is aware of this right, but indicated to the Court that, instead, she has opted to apply under r 39.05 of the Rules to set aside the judgment. An application under r 39.05 of the Rules is not an appeal and is not a substitute for an appeal. The exercise of the power under r 39.05 of the Rules does not involve an inquiry as to the merits of the judgment and is conditioned by the terms of r 39.05 of the Rules. It can only be exercised if the requirements outlined in the rule are satisfied.
6 At the hearing, the Court made clear to the parties that, of the various matters outlined in the “Amended Interim application to set aside judgment and order”, the only aspect which the Court would be considering was outlined in [1], namely “Set aside sequestration and interlocutory judgment order of QUD103/22” (emphasis omitted). In addition, the appellant sought to file an application for discovery in these proceedings and was told at the hearing that the Court would not be dealing with this application.
7 Both parties filed written submissions and read affidavits as follows:
(a) written submissions of the appellant filed 5 September 2022;
(b) affidavit of the appellant affirmed 5 September 2022;
(c) written submissions of Jonathan Weir (the respondent) filed 16 September 2022;
(d) affidavit of Alexander Gregory Canavan affirmed 16 September 2022;
(e) further written submissions of the appellant filed 20 September 2022;
(f) affidavit of the appellant affirmed 12 September 2022; and
(g) affidavit of the appellant affirmed 19 September 2022.
8 The appellant’s submissions relied on r 39.05(b) of the Rules, that the judgment was obtained by fraud.
AFFIDAVIT EVIDENCE
9 The affidavit of the appellant affirmed 5 September 2022 (and annexures) is 161 pages in length and comprises two paragraphs and 35 annexures. The two paragraphs do not describe how the annexures relate to the appellant’s submissions or interlocutory application. The affidavit affirms that the appellant is “the [appellant]” and that “[f]alse information going through the courts and damage is being done where bankruptcy would not be a possible judgement without these earlier matters occurring” (errors in original).
10 The affidavit of Mr Canavan affirmed 16 September 2022 is 221 pages in length and comprises 14 paragraphs and 11 annexures. The respondent drew the Court’s attention to annexures “AGC-1”, being a copy of a document referred to as the “QPRIME Traffic Crash Report” and “AGC-6”, being a copy of a Google Maps route from the respondent’s home address to Dean Street, Toowong, Brisbane.
11 The affidavit of the appellant affirmed 12 September 2022 (and annexures) is 72 pages in length and comprises two paragraphs and 27 annexures. As with the previous affidavit of the appellant of 5 September 2022, the two paragraphs affirm that the appellant is “the [appellant]” and that “[f]alse information going through the courts and damage is being done where bankruptcy would not be a possible judgement without these earlier matters occurring” (errors in original).
12 The affidavit of the appellant affirmed 19 September 2022 (and annexures) is 192 pages in length and comprises two paragraphs, 27 annexures and two exhibits in the form of four CD and DVD disks. As with the previous affidavits of the appellant, the two paragraphs affirm that the appellant is “the [appellant]” and that “[f]alse information going through the courts and damage is being done where bankruptcy would not be a possible judgement without these earlier matters occurring” (errors in original).
13 The appellant’s submissions for the purpose of the final hearing focused on r 39.05(b) of the Rules, asserting that the judgment was obtained by fraud.
RULE 39.05 – FRAUD
14 The setting aside or varying a finalised judgment under r 39.05 of the Rules is a power that is only to be exercised in exceptional circumstances. There is a public interest in the finality of litigation and this is a factor which weighs heavily in an application based on r 39.05 of the Rules.
15 Allegations of fraud are “extremely serious” and the fraud must be “directly material” to the judgment challenged: Wu Avin Operations Pty Ltd (No 2) [2006] FCA 792 at [24] (per Kenny J).
16 The power to set aside a judgment after it has been entered “does not extend to forms of malpractice not amounting to fraud”: Clone Pty Ltd v Players Pty Ltd (in liquidation) (Receivers and Managers Appointed) (2018) 264 CLR 165; [2018] HCA 12 at [41] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). Their Honours observed (at [62]) that “[f]raud needs to be clearly pleaded and proved”.
17 In Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 (Spalla), French J (as his Honour then was) set out the criteria for success in an action seeking to set aside a judgment on the basis of fraud (at [60]) (referring to Kirby P (as his Honour then was) in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534) as follows:
Kirby P set out the essential criteria for success in an action seeking to set aside a judgment on the basis of fraud. In summary they were as follows:
1. The essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires.
2. It must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.
3. Mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief.
4. Although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.
5. It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge.
6. The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.
Kirby P said, at 539:
‘In summary [the applicant] must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.’
(italics in original)
18 In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, the Full Court of the Federal Court (Spender, Gummow and Lee JJ) reviewed the equitable jurisdiction to set aside a judgment on the basis that it was obtained by fraud and adopted the following summary by Gordon QC (from his article “Fraud or New Evidence as Grounds for Actions to set Aside Judgments” (1961) 77 LQR 358 (Pt 1), 533 (Pt 2)) (at 241):
“(a) evidence newly discovered since the trial;
(b) evidence that could not have been found by the time of the trial by exercise of reasonable diligence;
(c) evidence so material that its production at the trial would probably have affected the outcome; and when the fraud charged consists of perjury, then:
(d) the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result.”
19 In order to set aside a judgment, it must be established that “the successful party was responsible for the fraud which taints the judgment”: Laffer v Michelmore Real Estate Group Pty Ltd [2014] FCA 495 at [41] (per Besanko J).
20 The appellant must clearly plead and prove that the respondent, as the successful party, was responsible for any fraud which is claimed to have tainted the judgment. The evidence of such fraud must be a new discovery of evidence that was not reasonably available earlier.
SUBMISSIONS AND DISCUSSION
21 The appellant was reminded that the appellant must take the Court to any information provided in the affidavits and outline its relevance and how it supported the appellant’s submissions/arguments. The evidence provided in each of the appellant’s affidavits was not laid out in a coherent form, with no explanation of how the collection of email screenshots, extracts of other affidavits, hand drawn notes and transcript excerpts were relevant to the present application. In particular, the appellant was reminded of the requirement to identify how each allegation relevantly established fraud in the present case before the Court. The appellant has not done this.
22 The appellant’s written submissions begin by referring to the folktale of “The Emperor’s New Clothes”:
The Emperor Has No Clothes
The age old story of a string of officials of the Emperor so afraid of admitting the Emperor’s clothes spun by frauds did not exist for pain of being considered unfit for office and unwise, they perpetuated a series of systematic errors that allowed the fraud to continue undetected until all the public saw that the Emperor was naked.
The story acts of an analogy of how strategically placed errors taint decisions that perpetuate and taint further decisions all self referring to what becomes a web of errors where in truth, such a decision, but for the strategic error, should never of occurred in the first place.
(errors in original)
23 Based on other statements made by the appellant during the oral hearing, this reference appears to relate to the appellant’s view that the making of the sequestration order occurred because of a wide web of errors and fraud spanning previous hearings in the Queensland Civil and Administrative Tribunal (QCAT), the Administrative Appeals Tribunal, the Magistrates Court of Queensland, the District Court of Queensland, the Federal Circuit and Family Court of Australia, the Supreme Court of Queensland, the Queensland Court of Appeal, the Federal Court of Australia and the High Court of Australia with respect to the appellant’s various criminal, civil and administrative proceedings.
24 The subject of the proceedings in the various courts and tribunals have included a traffic accident (criminal and civil aspects, including on appeal), mutual recognition of a licence in Victoria, issues in relation to a Queensland real estate licence and trust accounts, as well as the appellant’s bankruptcy.
25 The appellant’s submissions continue that the judgment of Egan J came about due to a series of events involving extrinsic and intrinsic fraud.
26 The submissions then quote the following, said to be from McDonald v McDonald (1965) 113 CLR 529 (McDonald):
At 894 A judgement that is tainted and affected by fraudulent conduct is tainted throughout and the whole must fail’. [sic]
The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh. In that event, the circumstances that the fresh evidence may tend to support the conclusion that the verdict was obtained by fraud, or by surprise, or by subornation of witnesses will not prevent the grant of a new trial on the ground of the discovery of fresh evidence, or require the Court to satisfy itself of the fraud, surprise or subornation of witnesses as the case may be: McCann v. Parsons [1954] HCA 70 [sic]. Nor, in my opinion, does that circumstance lessen in any respect the stringency of any of the rules which apply to the grant of a new trial upon the ground of the discovery of fresh evidence. The fresh evidence, though it suggests fraud, surprise or subornation of witnesses, must yet fully satisfy all the criteria laid down with respect to fresh evidence warranting a new trial although it may be that, in some cases, the tendency of the evidence to show fraud may make it more likely to be conclusive.
(appellant’s underlining)
27 The appellant correctly highlights the above passage from McDonald. As discussed in these reasons and as highlighted in the above passage, “[t]he discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence … which is of such probative value and significance ... is a ground for the granting of a new trial”.
28 The appellant’s allegations of fraud are contained within the appellant’s application filed 29 August 2022, the appellant’s written submissions of 5 September 2022 and 20 September 2022 and the appellant’s oral submissions. For the sake of completeness, these reasons will consider each of the separate submissions by setting out the written and oral submissions verbatim, including submissions by the respondent, and expressing a conclusion as to each submission with reasons.
29 In broad terms, the various grounds fail as they do not establish the requirements outlined earlier in these reasons under the heading “RULE 39.05 – FRAUD”, such as relevance to the issue of fraud by the successful party in the current proceedings which taints the judgment in question; no reference to new evidence; and, in any event, the absence of strict proof required of an allegation of fraud.
30 The application begins by listing the “Interim orders sought” (emphasis omitted) as quoted in [4] above. The appellant then quotes rr 39.05, 1.32. 1.40, 16.42, 17.01, 20.13, 20.11 and 30.11 of the Rules. The appellant mentions s 32AA of the Federal Court of Australia Act 1976 (Cth) (the Act) and uses the words “Associated matters”. Section 32AA of the Act does not relate to associated matters. It is possible the appellant intended to refer to s 32 of the Act, which deals with the Federal Court of Australia’s jurisdiction to hear associated matters.
31 This reference may have been in relation to the appellant’s orders sought which focused on the Federal Court of Australia hearing matters filed in the Queensland Court of Appeal, the Magistrates Court and QCAT. Examples were the following interim orders sought:
…
3. Restore the [appellant’s] license
4. Hear on Consolidation QSCA 4681/22 and transfer Acting Magistrate Smith’s file
5. Hear on Consolidation QCAT matters abandoned by the Trustee
…
8. Hear on Consolidation of associated matters both merit and Judicial Review appeal of the Queensland Office of Fair Trading.
…
(errors in original; emphasis omitted)
32 As outlined earlier, the Court indicated to the appellant that the only matter which would be considered by the Court was the order numbered 1, relating to setting aside the judgment.
33 The appellant then quotes s 263A of the Bankruptcy Act 1966 (Cth) as to false affidavits and refers to s 42(2) of the Agents Financial Administration Act 2014 (Qld).
34 The appellant’s application then turns to listing the grounds of the application.
DETAILS OF FRAUD
Insurance fraud
35 The appellant’s first ground is an allegation of “insurance fraud” by the respondent as follows:
Details of Fraud:
A. Insurance Fraud: False information given by [the respondent] to the RACQ.
1. [The respondent] in direct contradiction to his own witness Bridge, told the RACQ that he swerved to avoid the [appellant’s] car.
2. [The respondent’s] witness Bridge clearly stated [the respondent’s] car was travelling straight towards him at the point of impact.
3. Magistrate Coates held that [the respondent’s] testimony of breaking was a recent addition and was not accepted.
4. QPRIME evidence held back from the 1st hearing and unserved prior to the second hearing-Emily Hutchinson told police that the accident happened on an angle. The evidence supports that the [appellant] swerved consistent with her testimony.
5. QPRIME evidence also shows that along with [the respondent] testimony to police on direction of travel, he took an illegal right turn into Dean St at peak hour despite testifying he was not in a hurry.
6. There is no legal entrance into Dean St from the Western Freeway.
…
(errors and emphasis in original)
Written and Oral Submissions
36 The submissions filed 5 September 2022 are as follows:
A. Fraud in the testimonies across the hearing testimonies:
Bridge who is [the respondent], the Plaintiff’s witness testified that [the respondent’s] car was travelling straight at the point of impact.
QPRIME evidence of Emily Hutchinson supports that the [appellant] swerved to avoid [the respondent] contrary to his testimony and consistent with Mr Bridge.
Constable Axon never checked to see that [the respondent] had taken an illegal entrance into Dean St. It was Senior Constable Wilson who knew that [the respondent] had entered via the Western freeway and is in his audio (supplied to court in an email.
Wilson changes testimony from one hearing to another. 1st [the respondent] told him he was travelling under the speed limit to Magistrate Coates and then he told him he was travelling at the speed limit to Acting Magistrate Smith.
[The respondent] also attempts to say he swerved much earlier to Acting Magistrate Smith although this would be physically impossible given the lane the collision occurred in.
(errors and emphasis in original)
37 The appellant filed an audio recording of the police constable from the time of the accident, a map of the intersection and the statements of the appellant’s witness in the Magistrates Court.
38 In written submissions, counsel for the respondent submitted that the respondent’s testimony was his honestly held belief when trying to recall a split second event four years after the event and was consistent with the criminal proceedings in 2017, that his testimony accords with the Queensland Police Service audio recording when interviewed by the police on the day of the accident, and whether he swerved is not itself determinative of the issue of civil liability for the collision. Counsel for the respondent also submitted that westbound traffic can turn left into Dean Street and that the allegation that the respondent illegally turned “right into Dean Street” was the police constable’s narrative that did not accord with the Queensland Police Service audio recording and that the appellant had an opportunity to put the allegations of the illegal right turn to the respondent during cross-examination, and did not. Counsel for the respondent also submitted that it is irrelevant how the respondent came to be on Dean Street as the location of the turn is not connected to the location of the collision.
39 Further, in the written submissions, with respect to the alleged testimony fraud, counsel for the respondent submitted that:
14. At no time during the trial at first instance before Magistrate Coates, nor the two appeals that followed, did the [appellant] allege [the respondent’s] account was fraudulent, or an attempted ‘insurance fraud’. Furthermore, fraud was never pleaded in her Defence (dated 13.02.2018) to the [r]espondent’s Statement of Claim.
15. Whether [the respondent], in response to the emergency that unfolded, in fact swerved or tried to swerve, or whether he had braked or tried to brake, were not determinative of the [appellant’s] guilt in the criminal proceedings, and nor was it determinative of civil liability.
16. Likewise, the [appellant] herself swerving, or attempting to swerve (regarding Ms Emily Hutchinson’s account to police the ‘collision happened on an angle’ (per allegation A.4.) was also not determinative. Despite trying to swerve, the [appellant] still collided into [the respondent’s] vehicle, and but for the [appellant’s] negligence, that collision would not have occurred. Liability for the damage so caused follows.
17. Consequently, there is no evidence whatsoever, [the respondent’s] honest held believe that he had ‘tried to swerve’ or that ‘he had braked’, was intentionally dishonest or deceptive to meet the definition of fraud.
(footnotes omitted)
40 The appellant in reply submitted:
…
Contributory negligence
[The respondent’s] false testimony on swerving, stopping and ambiguity of speed (around 50K-while he tells the police he was going under the speed limit and then the police say at the speed limit in the civil hearing) would of otherwise resulted in contributory negligence.
…
At 13 (3) The Statutory Declaration
(ii) The Statutory declaration differed in that it supported the [appellant] swerving (angle of the car), That the [appellant] moved slowly into the intersection and that Hutchinson’s own impression of the car was that it suddenly appeared (she had the impression that the car had been parked) there was no continuity of the car moving along the road in her impression,
(iii) Contrary to His Honour, Justice Bond, the [appellant’s] counsel had sought to tender the statutory declaration as trial. It would seem his Honour has only made a quick overview of the trial transcript.
58 (20) Coates- “I mean he doesn’t need to look at the statement. It’s never going to become admissible”
At 14. The [appellant] had always held that [the respondent] had not stopped or swerved and was travelling at speed from the very time she challenged the fine.
At 15 and 16. Contrary, the respondent had not kept a proper lookout, he was “minding his own business”. “looking at the cars in front of me”.
The respondent was questioned as to his testimony to Senior Constable Wilson at the civil hearing after the recoding was played-if there was anything he would change.
[The respondent] changed where he had swerved- (this change made out the swerving would have happened before his own witness Bridge could view the action)
The earlier swerving would have placed [the respondent] in the bus lane and not on the lane were the accident occurred.
Deliberate Testimony of [the respondent]- crafted textbook approach
At 17- ‘Tried to swerve ‘was never in the original testimony and the’ he had braked”; both testimonies were contrary to the physics of the accident.
[The respondent] somehow shifted from looking at cars in front of him and suddenly seeing the [appellant’s] car in his lane ... blasting his horn, swerving and braking all the while checking his speedometer.
He is going the speed limit, He is going around 50. According to Senior Constable Wilson, he is told by Senior Constable Wilson he travelling under the speed limit and 60 is the speed limit.
At 18 and 19- The allegation is substantiated and at 17 the respondent admits the testimonies are inconsistent.
At 42 The respondent states that Fraud is a serious allegation that must be supported by evidence.
…
29-33 Contrary to the respondent’s statement, It is highly relevant to how [the respondent] came to be on Dean Street.
Entering illegally into an intersection carries that whatever occurs happens at your own risk
the neighbour principle that states that all persons or entities “must take reasonable care to avoid acts or omissions which that can be reasonably foreseen to be likely to injure another person.
Illegally entering a buses only entry places the community at risk and increases traffic flow to an already dangerous intersection.
[The respondent’s] direction of travel
The audio of [the respondent] to Senior Constable Wilson does not support that [the respondent] entered Dean Street from the left.
The evidence stipulates that [the respondent] came into Dean St via the Western Freeway, onto Mt Cootha Road.
Mt Cootha Road can only flow into Dean St on the right
[The respondent’s] direction of travel if coming from left would be down Milton Road..if this is the case..the direct route would be to use Miskin St [t]o arrive at Toowong.
The respondent omits Mt Cootha Road altogether and attempts to tell the court that [the respondent] was never asked for clarification on this at the trial.
However, [the respondent] was asked if he wanted to change any part of his testimony after the recording played.
[The respondent] made no correction about his direction of travel down Mt Cootha Road from the Highway.
…
(errors and emphasis in original)
Discussion
41 The ground is irrelevant to these proceedings where, to establish the requirements of r 39.05 of the Rules, it must be shown by admissible new evidence that the successful party was responsible for fraud which taints the judgment under challenge.
42 Whilst, for the sake of completeness, the full arguments are extracted in these reasons, they are irrelevant to these proceedings. The appellant’s argument centres on a traffic incident in which the evidence from each side was in conflict. The argument of the respondent replies to these assertions. From the submissions made by each side, it seems that the facts remain in vigorous dispute. The traffic incident in question led to court proceedings (both criminal and civil) where findings were made about the cause of the accident and which party bore responsibility. These findings involved (as is usually the case) acceptance of the evidence of one side over the other.
43 Even if the question of fraud relating to the previous proceedings was relevant, no fraud claim is made out. The fraud claim is not accurately particularised or given, nor are any allegations established by evidence to the strict standard of proof which such a charge requires.
44 This ground does not form a basis upon which an order might be made pursuant to r 39.05 of the Rules.
Fraud by SLF Lawyers
45 The appellant raised three grounds of fraud which were said to have arisen from the conduct of the respondent’s lawyers, SLF Lawyers. The grounds in the application were:
SLF Lawyers
7. SLF Lawyers affidavit attachment for fees includes that a 4 day trial for barrister fees yet a 2 day trial with 1 day judgment for their own fees.
8. Withholding of QPRIME material not served to achieve a false outcome.
9. Emails straight to Judge after requesting a Judge for the hearing bypassing the registrar to achieve a hearing date to stop further litigation that would discover and reveal a different result.
(errors and emphasis in original)
46 Each of these three grounds in relation to SLF Lawyers will be dealt with in turn.
Legal Fees
Written and Oral Submissions
47 In the appellant’s written submissions, the appellant expanded on this proposition as follows:
a. Injunction with Justice Collier The respondent waited until the day of the Injunction to submit the District Court provision of appeal amounts for a civil magistrates appeal in knowledge that the [appellant] had applied to the Magistrates Court for a transfer to QCAT on the amount and a default judgement given the respondent failed to file a defence and it was the respondent who was responsible for the hearing delay that they later claimed interest on.
…
The timing of the Magistrate’s hearing two years after any stay had long past, coinciding time wise with the dismissal of a Judicial Review of the Queensland Supreme Court of Appeal of the Office of Fair Trading.
(errors and emphasis in original)
And in the appellant’s reply submissions:
Barrister Costs
1. No service of these costs ever occurred.
2. No affidavit of service was placed on the Magistrates file
3. SLF knew at the time of Acting Magistrate Tynan’s application that 3 days were not going to be required.
4. SLF lawyers knew that 2 years gap was of their own choice even dismissing transfer to QCAT and a summary dismissal as they failed to respond so the hearing could take place earlier. The respondent continued litigation seeking to deceive judges on the strength of the 222 appeal. Only Justice Fraser was aware to stop this in his courtroom.
5. The bankruptcy application was filed to stifle litigation and to apply for vexatious litigant confirms this.
(errors and emphasis in original)
48 At the hearing, the appellant submitted that the lawyers for the respondent attempted to bankrupt her through legal fees. The appellant submitted that the civil matter should have been heard by QCAT rather than in the Magistrates Court (to achieve reduced legal fees).
49 As to the question of relevance, the appellant’s submission was as follows (transcript p 70 ll 33-40):
Well, it’s relevant in the sense of the amount of quantum that they – they took it to court after I offered the 12,000, right, because what they wanted was, and the reason the QCAT thing was denied, is for legal fees. They have bankrupt me not on the car’s amount - - -
…
- - - but on legal fees.
…
The point is, your Honour, I owe 12,000 on a car, or 13,000 if you don’t consider the fact it was actually a recall car with a faulty braking mechanism. I owe a particular amount on the car, and they let 12,000 sit there for two years, right.
…
They were in no hurry to get 12,000 out of me. The only hurry that they were in was to get the 12,000 plus their legal fees out of me. So for the car, it could sit there for two years without them taking any legal action. Hear me out.
…
(errors in original)
Discussion
50 The ground does not identify any evidence or factors which are relevant to establishing that the judgment in this case was obtained by fraud. The appellant has not met the criteria outlined by Kirby P in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 and confirmed by French J in Spalla.
51 The factors identified do not bear upon the matters which are relevant to the claim based upon r 39.05 of the Rules in these proceedings. They are also not newly discovered facts. Nothing has been raised which would establish fraud on the strict proof which such a charge requires.
52 This ground is not a basis for an order under r 39.05 of the Rules.
QPRIME document
53 The appellant’s submission in relation to the QPRIME document is that the respondent withheld a document referred to as QPRIME from the appellant in criminal proceedings arising out of the accident before Magistrate Coates.
Written and Oral Submissions
54 The appellant’s written submissions regarding the withholding of the QPRIME evidence is:
b. Non service of QPRIME at the Magistrates Civil proceeding: These facts along with the withholding of the service of the QPRIME evidence that would prevent a subpeona of the [appellant’s] witness Emily Hutchinson on the question of stopping, giving way and swerving would have provided the necessary criteria for a District Court of appeal regardless of the amounts involved. However it is the full order amount that is appealed not just the amount of the car itself.
(errors and emphasis in original)
55 The respondent responded in his written submission to the QPRIME report:
(a) The QPRIME/Traffic Crash Report (number QP1601397556) (“QPRIME”) referred to by the [appellant] is a 6-page document of the [Queensland Police Service].
(b) It was prepared and completed by Constable Axon following the investigation into the accident, and which resulted in a Traffic Infringement Notice (“TIN”) issued to the [appellant] for failing to give way at the stop sign.
(c) The QPRIME report became Exhibit 3 at the civil trial before Magistrate Smith.
…
(emphasis in original)
56 The appellant’s written submissions in reply to the respondent’s submissions were:
The evidence provided by the respondent only supports that the QPRIME evidence was not provided.
(1) The was a police report extract only
(2) QPRIME was never tendered into evidence at the trial and if it had been would of resulted in a different outcome.
The respondent did not serve the QPRIME evidence. This would result in a witness not being subpoenaed.
(errors in original)
57 At the hearing, the appellant submitted that (transcript p 22 ll 43-45):
They knew I would take legal action, and then they went in, and they put it on QPRIME, and they didn’t bring QPRIME and the Emily Hutchinson witness to the court before Magistrate Coates. They didn’t bring it.
58 The respondent submitted that the QPRIME report to which the appellant refers is the police report provided to the appellant in an email dated 21 March 2018. The respondent provided evidence of an email dated 21 March 2018 sent at 8.17 am which, among other documents, attaches a PDF file named “8179065-report police traffic - finalised - 07.11.2016.pdf”. The respondent submitted that this document is the QPRIME report which the appellant alleges was withheld.
59 The appellant submitted at the oral hearing that, had the QPRIME document been disclosed, the appellant would have been able to subpoena a witness, Ms Hutchinson, as follows (transcript p 17 ll 33-42):
I was trying to bring it before Sofronoff J under the Uniform Civil Procedures Act in order to get the reopening of his decision because of fresh evidence that wasn’t before himself or Bond J or any of the other judges because it was actually held back by the police first, and then by SLF Lawyers who decided to turn up with it on the day of my hearing and I – and stop me from being able to get a subpoena. So a subpoena requires a certain timeframe before you turn up to a hearing to be able to subpoena a witness. I – and so they produced it on the day of the hearing, and all of a sudden – I found out. I had a stat dec from that witness previously, but she hadn’t included that the accident happened on an angle which confirmed my swerving which - - -
60 Counsel for the respondent, Mr Van Grinsven, replied that (transcript p 52 ll 40 – p 54 ll 38):
… in Queensland and, in particular, civil proceedings, all evidence is required to be viva voce. It needs to be given orally to allow the other party the opportunity to cross-examine that particular witness. Now, there are exceptions to that. And yes, in some circumstances, a statutory declaration or an affidavit can be utilised, but that would require [the appellant], or her lawyers acting for her, to make an application under 92 of the Evidence Act to demonstrate why the particular author of that statement is not available for court.
…
… The [appellant] was not prevented in any way from calling or subpoenaing Ms Hutchinson, and the [appellant] chose not to call Ms Hutchinson at the civil trial because – and this is what I quote now, this is word for word from the transcript – [the appellant] says to Acting Magistrate Smith upon inquiry:
This witness is – is not – is not comfortable in court. She has written a statement –
Referring presumably to the statutory declaration –
and it’s one of the exhibits –
Meaning one of the exhibits which [the appellant] had attached to her own affidavit, which she had filed in the court some time before the civil proceedings –
but she’s not comfortable, I’m afraid.
Now, that clearly indicates that it was the [appellant] who made a forensic decision to not call Ms Hutchinson, not the respondent, because the onus is not on the respondent to call a witness that [the appellant] seemed to think is relevant to the proceedings.
Discussion
61 Again, for the sake of completeness, the full arguments are extracted in these reasons. The grounds raised and the arguments associated with those grounds relate to evidence before the Magistrates Court, and the impact of that evidence. The particular concern appears to relate to evidence before the magistrate who conducted the criminal proceedings, which was ultimately taken on appeal to the Queensland Court of Appeal.
62 Whilst the exchanges in the submissions demonstrate the continuing dispute about these matters, the ground and associated arguments do not have any bearing on whether the judgment which is challenged was obtained by fraud of the successful party.
63 The ground fails.
64 It is noted in passing that nothing the appellant had submitted would, in any event, amount to proof of fraud to the strict extent which is required for a charge such as fraud. It is also noted that none of the evidence was new evidence.
Bypassing the Registry
Written and Oral Submissions
65 The appellant’s submissions filed 5 September 2022 submitted the following under the heading “Amongst evidence before Judge Egan” (emphasis in original):
…
2. Appeal of a decision of the full SCQ on a matter of the Office of Fair Trading for a Judicial Review for a judgement that upheld QCAT claims review to be a sufficient legal action to deal with errors and that delays in a QCAT merit review should be attributed as an abuse of process by the [appellant] regardless of s 52 of the QCAT Act.
a. Both High Court decisions were handed down on the afternoon of the 16th of March 2022.
b. Both QCAT and the QSCA direction hearings were scheduled for the 16th of March 2022
c. The Federal Court bankruptcy hearing on the morning of March 17 2022 was organized directly through the chambers of Judge Egan on the 15th of March 2022 bypassing the registrar, where both Nikki Kavanagh and Jared Lane had emailed the [appellant] about other hearings in advance and which judge was appointed.
…
(errors in original)
66 The High Court handed down a judgment at 3.00 pm on 16 March 2022 and the matter was listed before Egan J at 9.30 am on 17 March 2022. The notification of the listing was said to have come from Egan J’s associate directly. The appellant spoke to this at the hearing as follows (transcript p 14 ll 28-36):
… On 16 March, both High Court decisions were made, right, for the Office of Fair Trading and for the car accident. The matter for the bankruptcy was heard at 9.30 on the 17th. The – and it was heard at 3 pm – came through at 3 pm from the High Court. There was a matter of hours before I actually had to come before Justice – Judge Egan, when there was actually already matters afoot in the High Court – before I came before him to be able to speak. So I actually had absolutely no procedural fairness given to me whatsoever, and this goes to the mind of the court, which also belongs to this thirty-nine – is it 39.5?
67 When asked about relevance to the current application before the Court, the appellant said (transcript p 15 ll 18-25):
[THE APPELLANT]: … I’m aware that the Chief Justice and also Rangiah J have written extensively on self-represented litigants and procedural fairness afforded to them, and it wasn’t – how could it be, when I’ve had two matters that were actually afoot at the time the day before? Now - - -
HIS HONOUR: … that’s nothing to do with … this hearing.
[THE APPELLANT]: Well, it is, your Honour, because - - -
HIS HONOUR: What are you suggesting?
[THE APPELLANT]: - - - how can I come before Judge Egan a couple of hours after the High Court has made a decision?
68 When asked what conclusion the Court should draw from these submissions, the appellant said (transcript p 15 ll 45 – p 16 ll 26):
[THE APPELLANT]: Well, I’m not asking you to draw a conclusion, your Honour. I’m looking – I’m asking you to look at it without fear or favour. I’m asking you to look at it objectively.
HIS HONOUR: But you must be asking me to draw a conclusion.
[THE APPELLANT]: I’m asking you to look at it objectively and say if you were in the same position, would you want to come before – to answer to somebody when you’ve had two days and it has come through not a normal channel and it doesn’t seem to be the way in which the court has proceeded before or after. You have to – would have to draw some kind of inference that there is something afoot here in the sense of - - -
HIS HONOUR: But, logically, most times, people suggest the inference that you would suggest is [to be] drawn. What’s the inference you suggest is drawn?
[THE APPELLANT]: Well, all I’m suggesting, your Honour, is it just seems very odd that on – two days before the High Court hand down their – two – one day before the High Court hands down a decision and two days before Judge Egan has listed it – is set to hear a matter, an associate should email the SLF Lawyers rather than go through the registry, which they had done previously on many occasions. Had my details. Both Jared Lane and Nikki Kavanagh had emailed me about judges, yourself included, what they were hearing and when they were hearing it. All of a sudden, nothing comes through the registry. So I’m just – I’m not asking you to make any decisions about that or inferences. I’m just saying, from a fair-minded perspective, isn’t there something – isn’t – there has to be something questionable in this - - -
Discussion
69 Nothing in this ground or the submissions made by the appellant relates to the issue of whether the judgment was obtained by fraud, instigated by the successful party.
70 The ground is irrelevant to the application which has been made.
71 The appellant’s references to procedural fairness are not relevant to this application under r 39.05 of the Rules.
72 The ground refers to no new evidence and does not clearly outline or, to the appropriate extent, prove “in any way” any allegation of fraud as is required by the authorities.
73 The successful party is not identified as having had any part in the events outlined by the appellant.
74 When pressed, the appellant’s response was “there has to be something questionable in this”.
75 The ground must fail.
Fraud in relation to insolvency
76 The appellant’s next ground in the application appears to be a series of suppositions about the conduct and knowledge of various people involved with the sequestration order. These grounds are contained under the heading “B. Fraud in relation to insolvency- Relevant to evidence before Judge Egan, Justice Collier, Justice Rangiah and Justice Thomas” (emphasis in original) in the appellant’s application.
False Affidavit of Steve Brown
77 The first assertion appears to be that the Office of Fair Trading (OFT) provided a false affidavit to appoint the receiver Julie Williams to the trust account of Storry Real Estate Pty Ltd (SRE). The ground is set out as follows
1. False affidavit in appointing receiver Julie Williams to the trust of Anthony Storry Real Estate given to the Queensland Supreme Court of Appeal. (signed by Steve Brown OFT)
a. Steve Brown knew that the balances and composition of the audit was in question and that the balances did not show a continuing shortfall at the very least they were contained and that the agent was actively rectifying the issues and no receiver needed to be appointed.
b. False assurances given in September 2018.
c. Knowledge of banks error in opening [SRE] and then using this to bring disciplinary action against the [appellant] and using this point to defeat a summary dismissal along with matters on appeal in the Federal Court.
(errors and emphasis in original)
Written and Oral Submissions
78 In the appellant’s written submissions, the appellant included a heading of “C. Fraud in the actions of the [OFT]” (emphasis in original). Under this heading, the appellant submitted:
…
4. Deceiving Justice Bond, Mullins, Williams and Phillipedes: Steve Brown knew that his affidavit signed in 2020 was false and misleading.
a. There was no audit report of a continuing shortfall but a challenge to the amounts and that even with the false figures the short fall was not continuing.
b. There had been a meeting 20/09/2022 where arrangements had been made to overlook the figures and that the funds would be disbursed to the clients (4 years later, this still did not occur)
c. Instead the OFT have done all they can to cover up their own errors at a cost to the clients, the business and the agent resulting in a bankruptcy finding.
d. The OFT sent out false reports to clients of the false amounts owed, used frozen funds to make out the agent had underpaid clients the frozen funds and that bookwork held in their office did not exist at all so that the clients would lose faith in the agent and desert the agency, which is mostly what has happened.
(errors and emphasis in original)
79 The respondent did not address this ground in his submissions.
Discussion
80 This ground and associated assertions are not relevant to the question of whether the judgment was obtained by fraud instigated by the successful party.
81 No allegation is raised against the successful party but rather against the OFT.
82 In any event, the allegations do not to the required extent establish fraud and no new evidence is involved.
False affidavit of Julie Williams and Grant Rasmussen
83 The appellant’s next ground appears to be an assertion that false affidavits were relied on to appoint a receiver to the trust accounts of SRE. The ground in the application is presented as follows:
2. False affidavit in appointing receiver Julie Williams to trust account of [SRE] to Justice Flanagan of the Supreme Court and then presented again to the District Court. (signed by Julie Williams receiver and OFT Grant Rasmussen).
a. Julie Williams-receiver caught providing inaccurate affidavits to Justice Margaret White at an earlier hearing in another matter.
The solvency of the [appellant] relied on the clients of [SRE]
b. Julie Williams- receiver and Janey McGregor of the OFT emailed days prior to signing the false affidavit of the interlocutory injunction, alerting her that she were relying on funds frozen by the [OFT] and did not reflect agent underpaying clients.
c. The use of frozen funds to appoint Julie Williams as a receiver over [SRE] in December 2018 after a month of client’s money being frozen.
d. Depletion of clients of the business who were all signed up to [SRE].
There are no claims for [SRE] yet Flanagan J matter was for SRE alone
1. The claims accepted by the clients do not support shortfalls in the vicinity of either the auditor or the original receiver’s calculations.
2. Receiver Julie Williams made corrections after being presented with evidence that do not support her original amounts erroneously printed in a QCAT judgment of Member Paratz.
3. Receiver Julie Williams resubmitted false information in the claims especially in relation to Kambos Pty Ltd that cover up the errors in her false affidavit originally given to Justice Flanagan.
4. The background of the claim in QCAT for Sermosi (another client name mentioned in the false affidavit) supposedly written by Member Kanowski does not match the background dates known by Member Kanowski in his review of the frozen funds GAR 009/19 and is an attempt to use the frozen fund period to align with the period in the false affidavit. The Sermosi claim is clearly not written by Member Kanowski.
3. False information provided to Acting Magistrate Kherlet to deprive the [appellant] of bookwork while a stay and a Judicial Review were scheduled.
3a. Bookwork of [SRE] taken under show cause notice period- receiver had not been appointed.
4. Misleading information given to the Victorian Business Licensing Authority.
4 a. The OFT had abandoned directions hearing in OCR at QCAT in favour of the [appellants] appeal. The Business Licensing Authority was misled by the Queensland [OFT] to formulate that the [appellant] had provided false information on a Statutory Declaration depriving the [appellant] the ability to access finances from Melbourne clients that would have provided solvency.
(errors and emphasis in original)
Written and Oral Submissions
84 The appellant’s written submissions relevant to this ground are:
2. Fraud in the Queensland [OFT]
A. 1. Change in court dates from 12thto 14th unannounced
B. 2. Deceiving Acting Magistrate Kahlert on the application dated 12/11/2018
Similarly to the Federal Court date changes without knowledge or consent of the [appellant] that prejudiced the outcome was the change by the Supreme Court in relation to the Judicial Review and a corresponding stay application.
See exhibit O1, O2, 03 (dates 12/11/2018 and O3)
3. Deceiving Justice Flanagan; Janey McGregor, Grant Rasmussen and the receiver Julie Williams all knew they were presenting frozen funds to His Honour so that SRE trust would be under the control of a receiver.
(errors and emphasis in original)
85 The appellant made oral submissions regarding the frozen funds and the bookwork (transcript p 13 ll 31 – p 14 ll 3):
Well, it does have significance because, originally, I brought this to them on 9 October when the [OFT] started acting. My matter was moved without my knowledge or consent – wait, hold me out for two days. Right. In that two days, the [OFT], while I had a stay and the judicial review in place, went to the Magistrates Office and falsified all this information that they knew was frozen money, they had been told was false. They made out that the auditor that was over my father’s trust account, not mine, was over mine. They didn’t tell her that my trust account was not under receivership, and they allowed and misled Magistrate Kahlert to do a search warrant while – the day before my stay application.
By doing this – and I have sent them an email, and all this is in evidence in my affidavit. I have sent them an email, saying, “If you take away my bookwork, I will not be able to defend myself in a judicial review.” Instead of being kind to me and acting like a model litigant, instead of doing that, they came and took my bookwork before the stay could be heard, before the judicial review could be heard, and they kept the bookwork in their offices. They then sent out reports to my clients telling them that they had raided my office, taken my bookwork and that there was no files, no – and all of these information that I – that they actually took from me they were telling my clients didn’t exist.
86 With respect to the ground “Depletion of clients of the business who were all signed up to [SRE]”, the appellant’s oral submissions were that (transcript p 27 ll 44-47):
… a business that has been crippled and then obliterated through lies to clients and to the – and into the court to stop me from being able to function and have any money by taking away the business and making the clients leave and holding their money …
Discussion
87 The arguments raised do not have any bearing on the issues relevant to the application of r 39.05 of the Rules – they do not go to the question of whether the judgment was obtained by fraud instigated by the successful party.
88 As to the allegations of fraud, it is noted that the appellant makes suppositions without providing any factual basis for these allegations. For example, there was no proof that the affidavits of Julie Williams or Grant Rasmussen were false or that “Julie Williams was caught providing inaccurate affidavits”. No new evidence is raised. No allegation is made against the respondent.
Fraud by the Trustee David Clout
89 The appellant raises the following grounds of alleged fraud by the Trustee David Clout:
Evidence provided to Justice Collier at the Interlocutory Injunction and during the hearing with Justice Thomas accepted for filing with no objections from the Plaintiff
B 2. Fraud attempt by the Trustee David Clout
1. Filed false and misleading information in a letter attached to the affidavit of SLF Lawyers
(a) stating that money belonging to my father’s trust account of $28,000 were my creditors.
(b) That my bank account was overdrawn.
(c) This was submitted prior to the 2 weeks date required to provide information.
2. Dismissed the extension application for a District Court review of a magistrate’s decision that led to the bankruptcy and appointment of the Trustee in the first place allowing cost orders against the [appellant] contrary to the Bankruptcy Act and in favour of the lawyers who appointed the trustee
3. Justice Mullins said at the stay appeal hearing that this could not be right and has stayed the matter.
4. Made no election and caused QCAT to abandon 2 matters.
(a) A summary dismissal of abuse of process of a matter pertaining to false evidence placed in QCAT.
(b) Claims funds known to be in error with exhibits attached to be abandoned and have false balances paid falsely from a public trust fund.
…
(errors and emphasis in original)
Written and Oral Submissions
90 The appellant made the following written submissions on this ground:
B. Affidavits for SLF and the Trustee
1. Affidavit of Ting Wei Hu- attempt made to tell the court the High Court had rejected lodgements on the 25th of October 2021 when the stay was filed. (See exhibit).
2. Affidavit of Ting Wei Hu supporting the letter of the Trustee David Clout (See Exhibit)
(errors and emphasis in original)
91 The appellant made the following oral submissions about the abandoning of the QCAT matters and the $28,000 in a trust account (transcript p 47 ll 31-43):
… Because that’s what has been happening. It happened – it has been happening to me with SLF Lawyers, but it also happened to me with the [OFT] – so when it happened again, I was actually aware of it, because it mirrors the same behaviour. In fact, I have put actually an email in the affidavit of the [OFT] talking about the trustee and how much money they were thinking I would have to pay in the bankruptcy and they have actually used – and I put this before your Honour when you made your judgment – that they abandoned my decision in QCAT and they abandoned the fact that this money came from my father’s trust account. So that it would – and the trustee was made to think that I owed this 28,000, when in truth, it was actually my father’s trust account and it wasn’t money I owed. It was actually in the trust account and this is in affidavits as well. Yes.
92 The appellant said the following at the hearing about Mullins P’s decision to stay the decision in the Queensland Court of Appeal (transcript p 20 ll 1-7):
Then they gave – then they asked for costs orders against me, even though I was a bankrupt. I talked to Mullins J, she smelled a rat and decided that she was going to stay it. She actually said, “That can’t be right, they got costs orders against you, because you’re a bankrupt.” And she actually understood that herself and she held it as a stay. At the moment, it’s still a stay in the [Queensland] Court of Appeal and that’s where it lies. It has not been – it has no – it has not been finalised. And it’s there and the evidence is before you in the affidavits.
Discussion
93 The matters raised in relation to this ground are not relevant to the question of whether the judgment in this matter was obtained by fraud of the successful party. Therefore, the ground is irrelevant to the order sought pursuant to r 39.05 of the Rules.
94 The allegations are not against the successful party, but seem to be made against the trustee and, in particular, actions by the trustee after the sequestration order, for example abandonment of claims made by the appellant.
95 The decision of a judge in another jurisdiction to stay a matter pending other proceedings (which might have a bearing on the matter before the judge) being concluded is not evidence of fraud. The appellant does not point to any connection between the decision of Mullins P to stay the proceedings and fraud before this Court instigated by the respondent.
OTHER ISSUES RAISED
96 The appellant’s written submissions raised several other allegations of fraud which were not set out in the grounds in the application.
Statutory Declaration
97 This ground would appear to be an allegation that the Queensland OFT misled the Business Licensing Authority and relates to other proceedings involving the appellant (QUD343/2021 – Venetia Louise Storry v Business Licensing Authority & Anor). In the appellant’s words, this ground is:
1. QUD343/21 relies on whether I signed a statutory declaration that reflected that legal status of the [OFT] legal action in relation to a mutual recognition application. The Business Licensing Authority has been misled by the Queensland [OFT]. (See Exhibit)
(errors and emphasis in original)
Oral Submissions
98 The appellant did not provide any oral submissions as to this ground.
Discussion
99 This ground does not appear to relate to the issue of whether the judgment in question was obtained as a result of fraud of the successful party. It is irrelevant to the current application.
100 This ground relates to alleged conduct of the Queensland OFT. No allegation is made against the successful party.
101 The allegation does not particularise any fraud to the extent required (or at all) and does not relate to the judgment in question.
CONCLUSION
102 As it is clear from my comments in these reasons, in none of the grounds raised has the appellant addressed or satisfied the requirements which must be met in the exercise of the jurisdiction conferred by r 39.05 of the Rules.
103 The interlocutory application filed 29 August 2022 will be dismissed.
104 I will hear argument in relation to costs.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas. |
