Federal Court of Australia

Davies, in the matter of an application by Davies for leave to file [2026] FCA 1237

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to file the documents lodged with the Court on 25 June 2026 being an originating application, affidavit, concise statement, interlocutory application seeking freezing orders, affidavit in support of the interlocutory application, certificate of urgency and genuine steps statement is dismissed without an oral hearing.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On 25 June 2026, Mr Davies lodged for filing an originating application, supported by an affidavit, concise statement, interlocutory application seeking freezing orders, affidavit in support of the interlocutory application, certificate of urgency and genuine steps statement. By those documents, Mr Davies sought to commence proceedings in this Court seeking to set aside judgment in Davies v Lazer Safe Pty Ltd [2018] FCA 702, a judgment that was upheld on appeal in Davies v Lazer Safe Pty Ltd [2019] FCAFC 65. Mr Davies seeks to allege that the judgment was obtained by fraud. The documents were referred to the filings judge who made an order that the documents not be accepted without leave of the Court.

2    Mr Davies now brings an application for leave pursuant to r 2.27A of the Federal Court Rules 2011 (Cth). He has previously been refused leave to file originating applications seeking to set aside the judgement in Davies v Lazer Safe: see Davies, in the matter of an application by Davies [2026] FCA 419 and Davies, in the matter of an application by Davies [2025] FCA 1552. In submissions filed in support of his application for leave, Mr Davies maintains that he has provided sufficient particularity of alleged fraud in his proposed concise statement for his originating application and other documents to be accepted for filing. On that basis, he says that his proposed filing does not suffer from the same defects as were identified in previous decisions refusing leave to file proceedings seeking to set aside the judgment in Davies v Lazer Safe. As to those particulars, he makes the following submission:

The proposed ‘targeted’ proceeding pleads two independent frauds, corresponding to the three streams identified in the Concise Statement, and proves each element by the evidence proper to it.

(1)    The first is the product-description fraud (streams (i) and (ii)): PD1’s “counting … from the tool” description was deleted and a “weighting as to sensitivity” account inserted, PD2 otherwise reproducing PD1 and being re-verified as true and complete; the substitution was queried by the applicant’s then solicitors on 10 April 2017 (KSD-103) and maintained on 10 May 2017 (KSD-104), and carried into PD3. Those acts are proved by the contemporaneous record. The falsity of the substituted account is shown by its irreconcilability with PD1 itself and its unworkability on its own terms — both matters of the contemporaneous documents — and by the manuals (KSD-206 to KSD-208), which show image information arriving at the processing and control means and being processed into boundary-aware information: the element the “counting” operation requires and the “weighting” account denies.

(2)    The second is the interrogatories fraud (stream (iii)): the First Respondent’s answer, sworn as true and complete on 9 March 2017, that the impugned systems had no “display device for the guarding functionality at all” (KSD-205). The act is the sworn answer; its falsity is proved by the manuals, which describe the Guarding screen, its connection, and its display of a live view of the guarded area.

Each fraud is pleaded independently; each, if established and shown to have been material to the impugned findings, is sufficient to warrant the relief sought. Both frauds are alleged to have operated within court-ordered processes: product descriptions ordered so as to avoid or minimise the need for experiments, technical investigations or discovery, and answers sworn as true and complete.

3    In his affidavit in support of his application for leave, Mr Davies deposes as follows (paras 7, 8 and 9):

Two frauds are pleaded, independently of one another, each pleaded distinctly and particularised in Schedule 1 to the originating application in accordance with rr 16.42 and 16.43 of the Rules:

(a)     the suppression, within the court-ordered product descriptions, of the "counting ...from the tool" mechanism disclosed in the first product description and its replacement with a "weighting as to sensitivity" account, that substitution having been queried by my then solicitors on 10 April 2017 and maintained on 10 May 2017;

and

(b)     the answer to interrogatories, sworn as true and complete on 9 March 2017, that the systems in question had no display device for the guarding functionality at all.

I acknowledge that earlier applications of mine directed to the same findings have been refused…

The difference between what is now sought to be filed and what has been refused lies in the proof rather than in the vocabulary. The contemporaneous documents on which the proposed proceeding centrally relies - the texts of the first and second product descriptions read side by side, and my then solicitors' correspondence of 10 April and 10 May 2017 - have not been received or assessed by the Court in admissible form in any prior application

4    The allegations of fraud in the proposed concise statement contain no particulars of any basis for a claim that would amount to fraud of a kind that could found a claim that a judgment be set aside for fraud. A claim of that kind requires actual fraud and the reason for that requirement is the public interest in finality in litigation: Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2018] HCA 12; (2018) 264 CLR 165 at [2], [55]-[59], [69] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). A claim that a judgment was obtained on the basis of actual fraud is very serious. It must be based upon an allegation of a deliberate intention to deceive, that is conscious dishonesty, by identified persons of a kind that impeaches the integrity of the process upon which the judgment is founded. In the case of a corporate entity the requirements for attribution must be met. Consequently, particulars of the alleged fraud must be 'exactly given': Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 537 (Kirby P). An allegation of recklessness is not sufficient. What must be articulated is the basis for a claim of deliberate dishonesty: Wilcox v Chapple [2025] NSWCA 155 at [137]-[138] (Leeming and Ball JJA and Griffiths AJA).

5    The Court has a duty to protect itself against an abuse of its process. The Court must protect its ability to function as a court of law by ensuring that its processes are used fairly. Failure to do so will lead to an erosion of public confidence by reason of concern that the Court's own processes may lend themselves to oppression and injustice. As to these matters see Williams v Spautz (1992) 174 CLR 509 at 520 (Mason CJ, Dawson, Toohey and McHugh JJ).

6    Abuse of process is 'capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute': Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25] (French CJ, Bell, Gageler and Keane JJ). The re-litigation of claims is an abuse of process: UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77. Unless Mr Davies can demonstrate at the time of commencement of his proceedings that there is a basis for his claim that the judgment in Davies v Lazer Safe was obtained by actual fraud then his application will be an abuse because it will amount to an attempt to re-litigate. As I have explained, a person who brings such a claim must give exact particulars of the actual fraud. It must follow that it is an abuse of process to seek to commence proceedings seeking to set aside a judgment for alleged actual fraud without giving exact particulars.

7    Respectfully, the two matters identified by Mr Davies as the basis for his application are difficult to follow. However, what is clear is that they allege no more than two aspects of the proceedings where, on the allegations made by Mr Davies, what was stated was not true. The materials that Mr Davies seeks to file are focussed upon demonstrating that the product description and the answer to interrogatories were not true. A claim of that kind does not amount to a claim of actual fraud. It does not identify a person who is alleged to have deliberately presented false information or evidence to the Court to affect the outcome or otherwise undermine the process in some way. It does not seek to attribute the state of mind of any individual to Lazer Safe.

8    The fact that the proposed concise statement lacks any claim of actual fraud is apparent from the part of the document that addresses the claim that the judgment was obtained by fraud. It is in the following terms:

What remains is the Respondents’ state of mind: whether that false record was produced and maintained deliberately (a contrivance) or with reckless indifference to its truth. On Derry v Peek, either is fraud; the Applicant’s case is that it was a contrivance, but it does not stand or fall on that characterisation. A meditated contrivance to keep the Court in ignorance is not honest inadvertence or mistake; by its nature it is dishonest. That dishonesty resides, at the least, in Mr Appleyard's verifications of the impugned representations and his sworn answers, which were not the truth or not the whole truth and were made knowing of, or recklessly indifferent to, their falsity.

9    There is no attempt to articulate and particularise what is said to have been the deliberate intent to deceive. Rather, what is said is that an absence of truth as to two aspects demonstrates dishonesty of a kind that may be the basis for setting aside a final judgment. However, a claim of falsity is not enough. Some basis for a claim of actual fraud must be stated. This is no mere pleading point of a kind that may apply to any form of claim. It is fundamental. The Court must respect the finality of its own decisions, as must the parties. An application that seeks to impugn a judgment of the Court for fraud must contain a particularised allegation of actual fraud of a kind that arguably would impugn the judgment. It must be expressed in terms that are coherent and readily able to be comprehended by the party against whom the allegations are made. There is simply an absence of any such claim in the proposed originating application and supporting documents.

10    In those instances where a claim is made that a final judgment was obtained by fraud and should be set aside, the interests of finality in litigation loom large. This is especially so where, as here, many years have passed since the litigation ensued. The exception provided for actual fraud is narrow: Clone at [69]-[70].

11    The deficiencies in the articulation of a claim of the kind that Mr Davies seeks to commence are apparent on the face of the documents that he seeks to file. As such, it is obvious that they are an abuse of the Court's process. The commencement of an application in such a form to seek to set aside a judgment obtained many years ago and thereby require the respondent to come to court to answer the claim despite its evident defects would be within the category of abuse by bringing the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286 (McHugh J). As this is a clear case, it is appropriate for leave to be refused: see Re Young [2020] HCA 13 at [11]- [13] (Gageler J).

12    The fact that this is a repeated attempt by Mr Davies to file an application of this kind after he has been made aware of the requirements to be met is a further reason why leave should be refused.

13    Mr Davies has provided detailed affidavit material and submissions in support of his leave application. He has had ample opportunity to raise matters in support of his application. An application for leave pursuant to r 2.27A is to be determined without an oral hearing unless the Court determines otherwise. I am not persuaded that there is any need for an oral hearing.

14    For those reasons, leave to file the documents must be refused without an oral hearing.

15    In that event, Mr Davies sought a dispensation from the requirement for a further application. It appears that he sought the opportunity to file some form of amended or substitute application for leave. In that regard, r 2.27A(3) provides that for each direction made by a judge that an originating application not be accepted for filing without leave only one application for leave to institute proceedings may be made. It may be accepted that the Court may dispense with that requirement. However, I am not persuaded that it should be dispensed with. This is not an instance where there is some minor problem that may be readily addressed. There is no basis for the Court to be persuaded that there might be a proper basis for an originating application of the kind that Mr Davies seeks to bring. The course he proposes would encourage repeat applications.

Associate:

Dated:    26 August 2026