Bert v State of Queensland

FEDERAL COURT OF AUSTRALIA

Bert v State of Queensland [2019] FCA 2058

File number:	VID 1183 of 2019
Judge:	O’CALLAGHAN J
Date of judgment:	6 December 2019
Date of hearing:	6 December 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No catchwords
Number of paragraphs:	33
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	D M Favell
Solicitor for the Respondent:	Crown Law

ORDERS

VID 1183 of 2019

BETWEEN:

JEAN-CLAUDE BERT

Applicant

AND:

STATE OF QUEENSLAND

Respondent

JUDGE:	O’CALLAGHAN J
DATE OF ORDER:	6 DECEMBER 2019

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The applicant pay the respondent’s costs of the proceeding on an indemnity basis.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. The applicant has filed what purports to be an originating application and statement of claim dated 30 October 2019.

2. The statement of claim reads as follows:

   1.On 23 July 2014, my family and I filed a claim and statement of claim in the Supreme Court of Queensland under proceeding BS1467/16, seeking compensation for alleged deceitful conduct by a company director, alleged breach of the continuous disclosure obligations and alleged misleading statements made by the company Red 5 Limited (Red 5) in relation to our shareholdings in the company.

   2.        On 16 December 2016, the primary judge dismissed our claim.

   3.There were a large number of facts finding errors and oversights in the judgement as some crucial written evidence contradicted the findings of the judge. On 7 February 2017, my family and I filed an appeal in the Queensland Court of Appeal against the decision of the primary judge.

   4.On 13 October 2017, the decision of the primary judge was upheld. A majority of the critical facts finding errors and oversights that the primary judge had made in his judgement were not identified or corrected by the Appellate Court.

   5.While the list of fact finding errors not corrected in Appeal is extensive, some of them were absolutely pivotal in the outcome of the case. In his judgement, the primary judge wrote the following sentences: “As at 15 March 2012 there was no problem with groundwater inflow” ... “The dewatering was working” ... “The evidence is that at 14 March 2012, they were able to deal with the inflow” ...”However, the dewatering system was successfully operating by mid-March 2012” ... All the objective written evidence before the Courts pointed to the exact opposite.

   6.In respect to the cause of the underperformance and not achieving the production forecast, the primary judge wrote the following sentence: “That failure was mainly the result of delivering insufficient ore to the mill for processing and to a lesser extent what appeared to be below grades in the ore, reduced mill recovery and at time shortage of power”. However, undisputable written evidence before…