Bhagat v Smith

[2000] NSWCA 89

CITATION:	BHAGAT v SMITH & ORS [2000] NSWCA 89
FILE NUMBER(S):	CA 40395/99
HEARING DATE(S):	10 April 2000
JUDGMENT DATE:	14 April 2000
PARTIES :	HARI BHAGAT v GRANT SMITH & 5 ORS
JUDGMENT OF:	Handley JA at 1; Sheller JA at 1

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20986/97
LOWER COURT JUDICIAL OFFICER :	Young J

COUNSEL:	Claimant - In person Opponent - B J Preston SC
SOLICITORS:	Claimant - In person Opponent - Mallesons Stephen Jaques
CATCHWORDS:	ACTION TO SET ASIDE INTERLOCUTORY ORDER FOR FRAUD
CASES CITED:	Nicholls v Carpenter [1974] 1 NSWLR 369, 375 Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 539 Lawrance v Norreys (1890) 15 App Cas 210, 219-20 Banque Commerciale SA en liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 285 Wallingford v Mutual Society (1880) 5 App Cas 685, 697 W Scott Fell & Co v Lloyd (1906) 4 CLR 572, 576
DECISION:	Summons for leave to appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40395/99

HANDLEY JA
SHELLER JA

Friday 14 April 2000

HARI BHAGAT v GRANT SMITH & ORS

JUDGMENT

1    THE COURT: This is a summons for leave to appeal from an interlocutory order of Young J pronounced on 6 May 1999 by which he struck out the claimant’s statement of claim. He also refused leave to amend so that his order was final in effect. 2    The amended statement of claim drafted by the claimant, who has appeared for himself throughout, runs to 78 pages. The relief sought included the setting-aside for fraud of an interlocutory judgment of Studdert J of 5 June 1996 given in a defamation action pending against the claimant, exemplary damages, and consequent on findings of fraud sought against the third and fifth defendants, their respective removals as Manager of the Meridian Investment Trust, and as Managing Director of the third and fourth defendants. 3    The fraud of the defendants alleged in the statement of claim was that they procured the judgment of Studdert J through false evidence allegedly given by Miss Mountford, a solicitor who was a member or employee of Cowley Hearne. Where the alleged fraud is perpetrated on the Court itself, the relief available in an action such as the present is rescission, that is, an order setting aside the earlier judgment, and not damages. See Nicholls v Carpenter [1974] 1 NSWLR 369, 375 per Glass JA. 4 The principles which govern an application to set aside a judgment for fraud are not in doubt, and the claimant accepted the statement of those principles by Kirby P in the passage from Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 539 quoted by Young J in his reasons for judgment. 5 The amended statement of claim is repetitious and prolix but paragraph 56 for example alleges that the first defendant, i.e. Ms Mountford, fraudulently gave “evidence…