Bert, In the matter of an application for leave to issue or file

[2020] HCATrans 153

[2020] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M71 of 2020

In the matter of -

an application by JEAN‑CLAUDE BERT for leave to issue or file

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 6 OCTOBER 2020, AT 9.45 AM

Copyright in the High Court of Australia

HIS HONOUR:   By an application filed on 5 August 2020 the applicant seeks leave to issue or file a writ of summons with a statement of claim seeking various forms of relief against the State of Queensland.  For the reasons that I now publish I would dismiss the application.

The order is:

1.The application for leave to issue or file is dismissed pursuant to r 13.03.1 of the High Court Rules 2004 (Cth).

I publish that order.

I direct that the reasons as published be incorporated into the transcript.

This is an ex parte application for leave for the Registrar to issue or file a writ of summons and statement of claim.  On 17 July 2020, Nettle J had directed the Registrar to refuse to issue or file the proposed writ of summons and statement of claim without the leave of a Justice first had and obtained by the applicant.

The proposed writ of summons is directed to the State of Queensland.  In the proposed statement of claim, the applicant says that in 2014 he and other family members brought a proceeding in the Supreme Court of Queensland seeking compensation for “alleged deceitful conduct by a company director, alleged breach of the continuous disclosure obligations and alleged misleading statements by the company Red 5 Limited ... in relation to our shareholdings in the company”.  The proceeding was dismissed by the primary judge in the Supreme Court of Queensland.  An appeal to the Court of Appeal of the Supreme Court of Queensland was dismissed.  On 15 February 2018[1], Bell and Gageler JJ dismissed the applicant’s special leave application on the basis that it did not raise any question of general principle and that there was no reason to doubt the correctness of the decision of the Court of Appeal.

[1]Bert v Red 5 Ltd [2018] HCASL 14.

In his proposed statement of claim, the applicant makes a number of assertions about alleged errors made by the primary judge which were not corrected on appeal.  Amongst other things, he says that he “sent to the Office of the Attorney General and to the Chief Justice of the Supreme Court of Queensland ... material containing a large number of undisputable explicit written evidence which were before the primary judge and comprehensively contradicted his findings”.  He says that “critical factual errors affecting the outcome of the case” have not been identified or corrected, and he asserts that the absence of a reply to his correspondence supports the conclusion that they have not been “opposed or even disputed either by the Office of the Attorney General or the Chief Justice”.  The applicant says that, since the appeal process is exhausted, his “fundamental common law right to fair proceedings and to appear before a competent, independent and impartial Court has been breached”.  The relief claimed against the proposed defendant, the State of Queensland, is the payment of:  (i) “[a]n amount of AUD 1.3 [m]illion corresponding to the financial and economic prejudice suffered by my family and me”; and (ii) “[a]n amount of AUD 5 [m]illion as moral damage for the significant harm caused to my family and I”. 

The applicant followed the proper appellate process for challenging the decision of the primary judge.  Once the appellate process has been exhausted, the principle of finality permits very few circumstances in which fresh litigation can be commenced, outside the appellate process and usually in the court that made the order, to challenge the final judicial order either directly or indirectly[2].  This is not one of those rare cases.  Nor does the “common law right to fair proceedings” or the International Covenant on Civil and Political Rights or the Anti‑Discrimination Act 1991 (Qld), upon which the applicant relies, provide any basis for holding the State of Queensland liable for damages in these circumstances.

[2]Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) (2018) 264 CLR 165 at 192 [54]. See also D’Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17‑18 [34]‑[36].

The proceeding now sought to be instituted in this Court is an abuse of process.  Further, the proposed writ of summons and statement of claim, and the affidavit provided by the applicant do not provide any arguable basis for any of the orders sought.

Further submissions from the applicant at an oral hearing would have no prospect of avoiding the conclusion that this proposed proceeding is an abuse of process and that the relief sought has no arguable prospects of success. The application for leave to issue or file should be determined without being listed for hearing pursuant to r 13.03.1 of the High Court Rules 2004 (Cth). The application is dismissed.

Adjourn the Court.

AT 9.45 AM THE MATTER WAS CONCLUDED