Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd
[2018] VSCA 174
•20 July 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0076
| BODYCORP REPAIRERS PTY LTD (ACN 068 589 408) | First Applicant |
| and | |
| ANTONIO MURDACA | Second Applicant |
| v | |
| AUSTRALIAN ASSOCIATED MOTOR INSURERS LTD (ACN 004 791 744) & ORS | Respondents |
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| JUDGES: | WHELAN, NIALL and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1, 21 May 2018 |
| DATE OF JUDGMENT: | 20 July 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 174 |
| JUDGMENT APPEALED FROM: | [2017] VCC 631 (Judge Lewitan) |
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INTENTIONAL TORTS – Conspiracy by unlawful means to give and procure false evidence – Witness immunity – Whether witness immunity applies to legal practitioners not called as witnesses – Whether witness immunity applies to a conspiracy to induce a witness to give false evidence – Whether witness immunity applies where a judgment is set aside for fraud – Cabassi v Vila (1940) 64 CLR 130 applied – Whether witness immunity applies to failure of subpoena recipient to produce a required document – Giannarelli v Wraith (1988) 165 CLR 543 considered – Whether witness immunity applies to corporation subpoena recipient – Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 followed – Leave to appeal refused.
SUMMARY JUDGMENT – Primary judge summarily dismissed proceeding brought by applicant on basis of witness immunity – Whether primary judge erred in determining issue on summary basis.
PRACTICE AND PROCEDURE – Application to adduce fresh evidence not before primary judge – Where application made late – Where evidence is not fresh – Where evidence not relevant to any proposed ground of appeal – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J Levine | Maciel Pizzorno & Co |
| For the First, Second, Third and Fourth Respondents | Mr C Madder | Moray & Agnew |
| For the Fifth Respondent | Mr D Aghion | Clyde & Co |
| For the Sixth, Seventh and Eighth Respondents | Mr N De Young | Minter Ellison |
WHELAN JA:
NIALL JA:
HARGRAVE JA:
More than 20 years ago, Michael Maisano renovated leased premises and commenced conducting a panel-beating business in Malvern with Rodney Attard under the name ‘Bodycorp Malvern’. The business operated between about October 1997 and May 1998. In 2000, Maisano and Attard sued Bodycorp Pty Ltd and its director, Antonio Murdaca, in the County Court (the original proceeding), claiming that Bodycorp and Murdaca had induced them to undertake the Malvern business by false representations to the effect that, as a Bodycorp franchised business, Bodycorp Malvern would become an ‘accredited repairer’ for Australian Associated Motor Insurers Ltd (AAMI) and would thus be entitled to display an ‘AAMI Recommended Repairer’ sign at the Malvern premises. When Bodycorp failed to produce this result, they ceased the business — as it was unprofitable without the promised accreditation — and claimed damages for the cost of renovating the business premises and other wasted expenditure.
Following a trial in October 2002, a County Court judge found in favour of Maisano and Attard.[1] Bodycorp and Murdaca were ordered to pay $79,083 in damages. They appealed to the Court of Appeal. In July 2004, their appeal on liability issues was dismissed, but their appeal on damages issues was partly allowed — resulting in their damages liability being reduced to $58,525.[2] Bodycorp and Murdaca paid the reduced judgment sum, interest and costs thus due to Maisano and Attard. In August 2016, about 14 years after the County Court judgment and 12 years after the Court of Appeal decision, Bodycorp and Murdaca issued a second proceeding in the County Court (the second proceeding). The first claim in the second proceeding was to set aside the judgment against them in the original proceeding, on the grounds that the judgment was obtained by the fraud of Maisano and Attard. The second claim was for damages against a range of parties as follows:
[1]Maisano v Murdaca (Unreported, County Court of Victoria, Judge Hanlon, 16 October 2002).
[2]Murdaca v Maisano [2004] VSCA 123.
(1) Maisano and Attard.
(2) Maisano and Attard’s solicitors in the original proceeding, Oakley Thompson & Co.
(3) The two Oakley Thompson employees who were responsible for the conduct of the original proceeding on behalf of Maisano and Attard — Timothy Davies and Jeremy Broadbent.
(4) Three AAMI employees who gave evidence in the original proceeding — Barry Martin, Robert Belleville and Philip Oswald.
(5) AAMI on its own behalf.
(6) Ken Adams, who acted as AAMI’s solicitor at the time of the original proceeding in relation to a range of issues concerning the relationship between AAMI and Bodycorp.
The principal basis of the damages claim is an alleged conspiracy by all the defendants to injure the plaintiffs — by the unlawful means of, in effect, perverting the course of justice by procuring false evidence in the original proceeding by Maisano, Attard, Martin, Belleville and Oswald — and that the conspiracy was carried into effect when those witnesses gave false evidence in the original proceeding. Another basis of the claim — also part of the alleged conspiracy — is that the defendants knew of relevant documents which would have assisted Bodycorp and Murdaca in their defence of the original proceeding. They allege that the defendants deliberately failed to ensure that these ‘undisclosed documents’ were discovered in the original proceeding or produced to the Court in response to subpoenas directed to AAMI and its employee witnesses. The precise nature of the pleaded allegations is considered below.
The defendants other than Maisano and Attard (the respondents) successfully applied to a County Court judge for summary judgment of the damages claims against them.[3] Bodycorp and Murdaca (the applicants) seek leave of this Court to appeal against the summary dismissal of their claims against the respondents.
[3]Bodycorp Repairers Pty Ltd v Maisano [2017] VCC 631 (Reasons).
Before turning to the primary judge’s reasons and the proposed grounds of appeal, it is necessary to first state two uncontroversial legal principles. First, whether a summary judgment application is made under the relevant rule of the Court, or under ss 62 and 63 of the Civil Procedure Act 2010, a proceeding may be summarily dismissed if a plaintiff’s claim or part of that claim has ‘no real prospect of success’. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[4] Warren CJ and Nettle JA stated that a claim with only a ‘fanciful’ chance of success has no ‘real’ prospect of success, as follows:
Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[5]
[4](2013) 42 VR 27.
[5]Ibid 40 [35] (citations omitted).
The fact that a claim has no real prospect of success does not require the Court to grant summary judgment. Section 64 of the Civil Procedure Act provides that the Court has a discretion to refuse summary judgment ‘despite there being no real prospect of success’ where the Court is satisfied that:
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
Second, the claims sought to be made against the respondents were for a most serious kind of fraud — conspiracy to pervert the course of justice. It is trite that such a serious case ‘must be pleaded distinctly and with particularity and clearly proved’,[6] with that proof being assessed in accordance with Briginshaw principles.[7] In the context of these principles, it is necessary to consider the precise allegations made by the applicants in the second proceeding. The primary judge determined the summary judgment applications on the basis of the allegations made in the applicants’ proposed amended statement of claim dated 13 February 2017,[8] and the documents referred to in that pleading.
[6]Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, 573 (citations omitted).
[7]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 237 CLR 89, 162 [170], citing Briginshaw v Briginshaw (1938) 60 CLR 336.
[8]The applicants made an application to amend the statement of claim in the second proceeding by summons dated 13 February 2017 (the ‘proposed amended statement of claim’). That application was opposed by the respondents. With the consent of the respondents, the judge proceeded to determine the application for summary judgment on the basis of the claim as pleaded in the proposed amended statement of claim. The judge ultimately refused the application to amend the statement of claim on the basis of the judge’s determination that the applicants’ claims against the non-party defendants in the proposed amended statement of claim had no real prospect of success: Reasons [15]–[16], [117]–[118].
The pleaded allegations
The applicants’ proposed amended statement of claim dated 13 February 2017 does not contain the requisite degree of precision required of a pleading making such serious allegations. It is full of assertion and devoid of particulars. Although a conspiracy between all of the respondents — together with Maisano and Attard — is alleged, the assertion that all of the defendants were parties to the alleged conspiracy lacks a pleaded foundation. In summary, the allegations are as follows:
(1) The parties are identified. Relevantly:
(a) Adams is alleged to have been ‘the legal representative of AAMI’ at all material times;
(b) each of Martin, Belleville and Oswald is alleged to have been employed by AAMI and acting ‘within the scope of his engagement’ at all material times. Thus, AAMI is alleged to be a party to the alleged conspiracy based on vicarious liability for the allegedly false evidence given by Martin, Belleville and Oswald at the trial of the original proceeding; and
(c) each of Davies and Broadbent is alleged to have been an employee of Oakley Thompson at all material times, but there is no allegation that either of them was acting within the scope of his employment or engagement. Counsel for the applicants accepted that the claims against Oakley Thompson are based on its vicarious liability for the alleged fraudulent conduct of Davies and Broadbent, thus making Oakley Thompson a party to the alleged conspiracy.[9]
[9]Proposed amended statement of claim [1]–[11].
(2) The pleadings in the original proceeding are summarised.[10]
[10]Ibid [12]–[13].
(3) Bare allegations of false evidence given at the trial of the original proceeding are made, without any particulars of falsity being given.[11]
[11]Ibid [14].
(4) It is alleged that Oakley Thompson, Davies and Broadbent were aware that the evidence given by Maisano, Attard, Martin, Belleville and Oswald was false at the time it was given.[12] Again, no particulars of knowledge are given.
[12]Ibid [15].
(5) It is alleged that ‘despite the knowledge’ of Oakley Thompson, Davies and Broadbent, none of them ‘took any steps to correct the false evidence given and [that they] incited the witnesses to give the false evidence’.[13] No particulars of incitement are given.
[13]Ibid [16].
(6) A summary of the findings of the trial judge in the original proceeding is pleaded.[14]
[14]Ibid [17].
(7) It is alleged that, since judgment in the original proceeding, the applicants have obtained copies of ‘certain documents which were not available to them during the trial’. These documents are specifically identified in the pleading, and collectively defined as the ‘undisclosed documents’.[15]
[15]Ibid [18].
(8) It is alleged that the undisclosed documents ‘were in the possession of the defendants and the defendants deliberately failed to disclose the undisclosed documents’ at the trial of the original proceeding. This rolled up allegation fails to identify which of the undisclosed documents was in the possession of which of the defendants — so that the relevant defendant could ‘deliberately’ fail to disclose it — and gives no particulars of the serious allegation of deliberateness.[16]
[16]Ibid [19].
(9) One of the undisclosed documents is an affidavit sworn by Maisano on 17 November 2014, more than 12 years after the appeal in the original proceeding. The contents of this affidavit are summarised in the pleading, in an apparent endeavour to juxtapose Maisano’s evidence in his affidavit to the oral evidence given by him and the other witnesses who are alleged to have given false evidence over 14 years beforehand.[17] However, no attempt is made in the pleading to link the statements in the Maisano affidavit to the allegedly false evidence. That degree of specificity was required when making such serious allegations. It is lamentable that it is lacking in the proposed amended statement of claim.
[17]Ibid [20].
(10) A similar approach is adopted in relation to another of the allegedly undisclosed documents, a statutory declaration made by Maisano on 1 September 1998 at the request of Adams in his capacity as solicitor for AAMI.[18] In oral argument on the application, counsel for the applicants contended that the significance of the statutory declaration is that it is true, and contrary to the allegedly false evidence given at the trial of the original proceeding. Again, however, this is not made clear in the pleading.
[18]Ibid [21]–[24].
(11) It is then alleged that the original proceeding was commenced by Maisano and Attard ‘by agreement with AAMI … knowing that the allegations in the statement of claim were false’.[19] No particulars are given of the agreement or knowledge of falsity of the allegations. The defendants are left to endeavour to work it out for themselves by comparing the evidence alleged to be false with the alleged contents of the Maisano affidavit and statutory declaration, and the other undisclosed documents referred to later in the proposed amended statement of claim. This approach is inconsistent with the requisite specificity and particularisation required in relation to such serious allegations.
(12) Next, it is alleged that each of Martin, Belleville and Oswald gave false evidence in support of the claim in the original proceeding by a ‘further agreement with AAMI’. No particulars are given of the agreement.[20]
(13) After pleading the alleged contents of the remainder of the undisclosed documents,[21] it is alleged that the applicants had no knowledge of the content of any of those documents prior to the day on which judgment was delivered in the original proceeding.[22]
[19]Ibid [26].
[20]Ibid [27].
[21]Ibid [29]–[31].
[22]Ibid [32].
On the basis of the allegations set out above, the applicants plead their principal cause of action based on conspiracy, in the following terms:
The matters set out above reveal and indicate a conspiracy between AAMI and Maisano, acting through their legal representatives, to injure Bodycorp and Murdaca in their business with a view to enabling AAMI and Maisano to repudiate their respective agreements with Bodycorp with little fear that Bodycorp or Murdaca would have the financial capacity to bring effective proceedings for damages, in that:
(a)Maisano and Attard gave false evidence for the purpose of the conspiracy;
(b)AAMI, through its employees, servants and agents, Martin, Belleville and Oswald, procured and gave false evidence for the purpose of the conspiracy;
(c)AAMI, through its solicitor, Adams, procured false evidence for the purpose of the conspiracy;
(d)Maisano and Attard's solicitors, Oakley Thompson, and its employees, Davies and Broadbent, procured false evidence for the purpose of the conspiracy; and
(e)Maisano procured false evidence for the purpose of the conspiracy.[23]
[23]Ibid [33].
Again, there is no attempt in this paragraph to link the serious allegations of conspiracy to the specific allegations made against each of the respondents. Specifically:
(1) The suggested purpose of the conspiracy ‘enabling AAMI and Maisano to repudiate their respective agreements with Bodycorp’ is the first mention of any such agreements.
(2) There is no allegation as to the manner in which any of Martin, Belleville or Oswald procured false evidence. As to the allegation that they gave false evidence, that has not been pleaded with the required specificity, as stated above.
(3) There is no pleaded fact to support the allegation that Adams ‘procured false evidence for the purpose of the conspiracy’. In oral argument, counsel for the applicants acknowledged that this was so, but contended that it was ‘possible’ on the evidence that a further amended pleading could provide a factual basis for this allegation. This matter is considered below.
(4) No particulars are given of the allegation that Davies and Broadbent procured false evidence. The respondents were left to sift through the content of the documents relied upon and draw their own conclusions as to the basis of this serious allegation.
The proposed amended statement of claim then alleges that:
(1) all defendants were parties to the conspiracy;[24]
[24]Ibid [34].
(2) all defendants knew that the evidence given by Maisano, Attard, Martin, Belleville and Oswald was false;[25]
[25]Ibid [35].
(3) all defendants took no steps to correct the false evidence;[26]
[26]Ibid [36].
(4) the non-disclosure of the content of the undisclosed documents caused the evidence at the trial of the original proceeding to be misleading;[27]
[27]Ibid [37].
(5) if the undisclosed documents had been in evidence at the trial of the original proceeding, their contents ‘would have influenced, or [were] likely to have influenced, the decisions of the trial judge’;[28] and
[28]Ibid [38].
(6) the undisclosed documents — except the Maisano affidavit — were documents which:
(a) Maisano, Attard, Oakley Thompson and Davies had a duty to disclose under their obligations to provide discovery in the original proceeding; and
(b) AAMI, Belleville, Martin and Oswald had a duty to disclose pursuant to subpoenas issued to them in or about February 2002 in the original proceeding.[29]
[29]Ibid [39].
These allegations of failure to discover documents or to produce them under subpoenas are not specifically pleaded as part of the conspiracy case. However, reading the pleading as a whole, the failure to produce the undiscovered documents is raised as part of the conspiracy case, and the proposed amended statement of claim should be read on the basis that the alleged failures to fully comply with the subpoenas also form part of the alleged conspiracy.
The proposed statement of claim then continues with some specific allegations as to how Broadbent and/or Davies, acting on behalf of Oakley Thompson, improperly attempted to influence the evidence to be given by Maisano.[30] A claim is made that the judgment in the original proceeding be set aside,[31] and a further and alternative claim is made for damages based on the conspiracy.[32]
[30]Ibid [40]–[41].
[31]Ibid [44].
[32]Ibid [45].
The documents referred to in the proposed amended statement of claim were in evidence before the primary judge on the summary judgment application, and were taken into account by her. We turn to consider the judge’s reasons and the proposed grounds of appeal.
The Reasons
The primary judge summarised the allegations in the original proceeding and in the proposed amended statement of claim in the second proceeding. Her Honour then set out the relevant test to be applied on applications to set aside a judgment on the ground of fraud.[33] Given that the respondents were not beneficiaries of the judgment in favour of Maisano and Attard in the original proceeding, it was unnecessary for her to consider these legal principles. The summary judgment application was made only by the respondents (not by Maisano and Attard) in respect of the damages claims against them. She later recognised that this was the case.[34]
[33]Reasons [25]–[26], citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 538–9; Karam v Palmone Shoes Pty Ltd [2014] VSCA 148 [39]; Bodycorp Repairers Pty Ltd v Maisano (No 11) [2016] VSC 645 [48].
[34]Reasons [33]–[36].
The primary judge then turned to consider the damages claims. She first considered whether a claim for damages lay against Martin, Belleville and Oswald as witnesses who allegedly gave false evidence at the trial of the original proceeding. She held that no claim lay against them as witnesses, applying the principle of witness immunity.[35] As we read the proposed amended statement of claim, there is no independent claim against Martin, Belleville and Oswald for the giving of false evidence. Rather, the claim against them for damages is based upon their part in the alleged conspiracy to give false evidence.
[35]Ibid [38]–[40].
The primary judge then decided that the principle of witness immunity extends to defeat a claim based on a conspiracy for the giving of false evidence, such as that alleged in this case.[36] Her Honour reached this conclusion on the basis of the High Court decisions in Cabassi v Vila[37] and D’Orta-Ekenaike v Victorian Legal Aid.[38] Her Honour placed particular reliance on the following passages from those cases.
[36]Ibid [41]–[59].
[37](1940) 64 CLR 130 (Cabassi).
[38](2005) 223 CLR 1 (D’Orta-Ekenaike).
First,[39] the judge referred to the following statement by Rich ACJ in Cabassi as to the public policy reasons for the principle of witness immunity:
An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness’ testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits and lead to interminable litigation.[40]
[39]Reasons [45].
[40](1940) 64 CLR 130, 139 (citations omitted).
Second,[41] her Honour quoted the statement of McTiernan J in Cabassi to the effect that witness immunity applies to defeat a conspiracy claim of the kind alleged in this proceeding:
But, even if a conspiracy to commit a criminal act could add to or change the tortious quality of the act and in that way provide ground for an action other than that which may lie for the act itself, such an action would not lie if the execution of the conspiracy consisted in the giving of evidence by a witness in the course of a judicial proceeding. It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.[42]
[41]Reasons [47].
[42](1940) 64 CLR 130, 144 (emphasis added).
Third,[43] to the same effect, the trial judge quoted a passage from the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in D’Orta-Ekenaike:
Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party’s favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.
This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries.
From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done or is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.[44]
[43]Reasons [38].
[44](2005) 223 CLR 1, 18–19 [37]–[39] (emphasis added) (citations omitted).
Fourth,[45] the primary judge quoted a statement by Williams J in Cabassi that witness immunity, in its application to an action framed in conspiracy to give false evidence — as here — continues to apply after the judgment obtained on the basis of the false evidence has been set aside:
I am also of opinion that the alleged third cause of action [damages for the alleged conspiracy to give false evidence at trial] is bad in law, and the statement of claim would be demurrable even if the judgment had been set aside. It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box.[46]
[45]Reasons [39].
[46]Cabassi (1940) 64 CLR 130, 149.
Later in her Reasons, the primary judge relied on other passages from Cabassi applying witness immunity to all forms of civil action against witnesses and others who procure false evidence.[47] She cited English authority to the same effect.[48]
[47]Reasons [53]–[55], [59].
[48]Ibid [52], [56]–[57], referring to Marrinan v Vibart [1963] 1 QB 234, 238–9 and (on appeal) [1963] 1 QB 528, 538.
The primary judge also noted and relied on the decision of Campbell J in Fatimi Pty Ltd v Bryant,[49] which expressly extended witness immunity to a proceeding based on conspiracy to pervert the course of justice.[50]
[49][2002] NSWSC 750 [196].
[50]Reasons [58].
The primary judge considered whether Oakley Thompson, Davies, Broadbent and Adams could rely on advocate’s immunity if, as contended by the applicants, the doctrine of witness immunity were not to extend to legal practitioners who procure false evidence in legal proceedings.[51] Her Honour rejected the applicants’ contention,[52] but held that, in any event, advocate’s immunity would protect Oakley Thompson, Davies, Broadbent and Adams in the circumstances of this case.[53]
[51]Ibid [60]–[66].
[52]Ibid [60].
[53]Ibid [61]–[66].
Finally, the primary judge considered the separate causes of action based on the undisclosed documents, dealing with each of the documents in turn. She concluded that the applicants had no real prospect of success insofar as their claims were based only on the alleged failures to produce the undisclosed documents for the purposes of the original proceeding.[54] Her Honour gave varying reasons for her conclusions in this regard, based on the fact that particular defendants had no obligation to produce those documents in his or its possession and the extension of the witness immunity principle to the circumstances of non-production.[55]
[54]Ibid [67]–[111].
[55]Ibid.
We turn to consider the proposed grounds of appeal.
Proposed grounds of appeal
There are 15 proposed grounds of appeal, with some overlap, as follows:
GROUND l
1.The Trial Judge erred in holding that witness immunity could apply to a corporation.
GROUND 2
2.The Trial Judge erred in holding that witness immunity could apply to the conduct of legal practitioners, who had not been called as witnesses.
GROUND 3
3.The Trial Judge erred in holding that witness immunity could apply to a person when it had not been in contemplation that they would be a witness.
GROUND 4
4.The Trial Judge erred in holding that witness immunity and/or advocate’s immunity applied upon a proceeding being set aside for fraud.
GROUND 5
5.The Trial Judge erred in holding that witness immunity applied to the following conduct:
a) inducing a witness to lie;
b) conspiracy to induce a witness to lie
c) attempting to induce a witness to lie;
d) conspiracy to attempt to procure a witness to lie;
e)perverting the course of justice by procuring or inducing a witness to lie;
f)attempting to pervert the course of justice by procuring or inducing a witness to lie.
GROUND 6
6.The Trial Judge erred in holding that witness immunity applied to protect a subpoena recipient who failed to discover a document that it was obliged to produce.
GROUND 7
7.The Trial Judge erred in holding that an action for conspiracy could not be brought that relied upon the evidence adduced by a witness in court.
GROUND 8
8.The Trial Judge erred in holding that advocate’s immunity protected the following conduct:
a) inducing a witness to lie;
b) conspiracy to induce a witness to lie
c) attempting to induce a witness to lie;
d) conspiracy to attempt to procure a witness to lie;
e)perverting the course of justice by procuring or inducing a witness to lie;
f)attempting to pervert the course of justice by procuring or inducing a witness to lie.
GROUND 9
9.The Trial Judge erred in granting summary judgment without taking into account the heavy onus upon the respondents to justify the application of the immunity.
GROUND 10
10.The Trial Judge erred in holding that an undisclosed document had to be so material that it would make be reasonably probable that the … applicant would have been successful in the original proceedings.
GROUND 11
11.The Trial Judge erred in failing to draw an inference that the undisclosed document was so material that it reasonably probable that the … applicant would have been successful in the original proceedings.
GROUND 12
12.The Trial Judge erred in holding that legal professional privilege applied to notes that were used to coach a witness.
GROUND 13
13.The Trial Judge erred in holding that legal professional privilege applied to the statutory declaration.
GROUND 14
14.The Trial Judge erred in holding that advocates’ immunity protected Ken Adams, when he was not acting as a legal practitioner in the proceedings.
GROUND 15
15.The Trial Judge erred in failing to refer to the Applicant’s affidavit evidence.[56]
[56]Application for leave to appeal against the decision of Judge Lewitan, dated 22 June 2017.
We will deal with the proposed grounds on the basis that:
(1) proposed grounds 4, 5, 7, 8, 9, and 15 concern all respondents;
(2) proposed grounds 1, 2, 8 and 12 concern Oakley Thompson, Davies and Broadbent (the Oakley Thompson respondents);
(3) proposed grounds 3 and 6 concern Martin, Belleville and Oswald (the AAMI witnesses);
(4) proposed grounds 1, 6 and 13 concern AAMI;
(5) proposed grounds 13 and 14 concern Adams;[57] and
(6) proposed grounds 10 and 11 concern all respondents in possession of any of the undisclosed documents.
[57]Ground 13 has been included on the basis that Adams perceives it to apply to him.
Grounds concerning all respondents
We deal first with proposed ground 9, which alleges that the primary judge ‘erred in granting summary judgment without taking into account the heavy onus upon the respondents to justify the application of [witness immunity or advocate’s immunity]’.
The applicants rely on the statement by Wilson J in Giannarelli v Wraith that: ‘there is a heavy burden of justification on those who claim an immunity or privilege’.[58] Justice Wilson made that statement in the context of addressing the public policy considerations underlying advocate’s immunity in proceedings where the existence of the immunity was addressed as a preliminary point of law. He was not addressing the burden of proof or persuasion in a particular case.
[58]Giannarelliv Wraith (1988) 165 CLR 543, 575 (Giannarelli).
In our view, this ground adds nothing to the specific challenges to the trial judge’s reasons. Her Honour carefully stated the applicable test to be applied on a summary judgment application and gave detailed and considered reasons for upholding the summary judgment applications. We note also that Cabassi was itself decided on a demurrer.
We next consider proposed ground 15. This ground contends that the primary judge ‘erred in failing to refer to the applicants’ affidavit evidence’.[59] The applicants’ written case does not identify the affidavits in question, but this was done in oral submissions. The Reasons do refer to one of the affidavits, that of Maisano sworn 17 November 2014, but do not refer to others. It is thus correct that the primary judge did not refer to all of the affidavits relied on by the applicants in her Reasons. We accept that the affidavits provide some evidence to support the allegations in the proposed amended statement of claim. However, as she was obliged to do on the respondents’ summary judgment applications, the primary judge accepted those allegations as true, and on that basis, considered whether the proposed claims had any real prospect of success. In other words, the primary judge took the applicants’ case at its highest — i.e. as pleaded — and determined that such a case had, as a matter of law, no real prospect of success. There was no error in that approach.
[59]Emphasis added.
Proposed grounds 5 and 7 are central to the issues on appeal. They contend that the doctrine of witness immunity does not apply to a conspiracy to induce a witness to give false evidence, or conduct amounting to perverting the course of justice by procuring or inducing a witness to lie. These proposed grounds cannot succeed. They are directly contrary to the statements of the High Court in Cabassi and D’Orta-Ekenaike relied upon by the primary judge. We wholly agree with the primary judge’s reliance on those statements of the High Court. The effect of those (and other) statements in Cabassi and D’Orta-Ekenaike is that witness immunity extends to civil claims for damages against all persons alleged to have induced or procured a witness to lie in his or her evidence in court, however the civil cause of action is framed.
In Cabassi, the same kind of conspiracy as is alleged here was expressly rejected, on the grounds of witness immunity, as an available civil cause of action. This was the unanimous decision of all four judges:
(1) Rich ACJ reviewed the American authorities to this effect and expressly accepted them, stating that the only civil remedy available to a losing party in such circumstances is an equitable proceeding to set aside the judgment based on the allegedly false evidence or to seek a new trial.[60]
[60]Cabassi (1940) 64 CLR 130, 139.
(2) Starke J, while recognising that Cabassi involved an alleged conspiracy between witnesses to ‘give, adduce and procure false evidence’, stated that witness immunity extended to protect both ‘witnesses and others’ involved in such a conspiracy.[61]
[61]Ibid 141.
(3) McTiernan J stated that the ‘rule’ — a reference to witness immunity as a bar to civil conspiracy proceedings of the kind in that case — applies to ‘all actions’.[62]
(4) Williams J summarised the position this way:
Every consideration of public policy which prevents the crime of perjury followed by damage from constituting a tort is equally applicable to prevent the crime of conspiracy to commit perjury followed by its commission and consequential damage from doing so.[63]
[62]Ibid 145.
[63]Ibid 151.
In the course of the reasons of each of the four judges, the overarching public policy reasons for extending witness immunity to all forms of civil action for damages against those involved in the giving of the false evidence — whether by individual inducement, conspiracy between the dishonest witness and other witnesses, or otherwise — are stated emphatically. Rich ACJ spoke of the public policy of prohibiting all forms of ‘attempt to re-examine the merits of a judgment in a collateral suit … [which would] encourage and multiply vexatious suits, and lead to interminable litigation’.[64] Starke J spoke in terms of ‘a higher interest, namely, the advancement of public justice’.[65] McTiernan J spoke of ‘the great mischief that would result, if witnesses in courts of justice were not at liberty to speak freely, subject only to the [criticism or adverse findings] of the court’.[66] And Williams J said that:
The value of the immunity of witnesses would be substantially diminished and in fact almost destroyed if such an action could be brought … With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.[67]
[64]Ibid 139 (citations omitted).
[65]Ibid 141 (citations omitted).
[66]Ibid 145 (citations omitted).
[67]Ibid 151, quoting Dawkins v Lord Rokeby (1875) LR 7 HL, 756 (Lord Penzance).
Those policy reasons continue to apply, as the above-quoted passage from D’Orta-Ekenaike establishes.[68] Underlying these public policy considerations is the finality principle, as was made clear in D’Orta-Ekenaike.[69] The High Court has recently emphasised ‘the need for a strict approach to finality’ in Clone Pty Ltd v Players Pty Ltd (rec and mgr apptd) (in liq).[70]
[68](2005) 223 CLR 1, 18–19, [37]–[39].
[69]Ibid 17–18, [34]–[36].
[70](2018) 353 ALR 24, 43 [70] (Clone).
The applicants contend, however, that the language used in Cabassi and D’Orta-Ekenaike only extends the witness immunity principle beyond the allegedly lying witness to a limited extent. They contend that the principle is limited to circumstances where the person who induces or procures false evidence, or is a party to a conspiracy to that end, is a witness in or party to the relevant proceeding. We do not accept that submission. As noted above, Starke J in Cabassi referred to witness immunity as extending to ‘witnesses and others’.[71] His reason for doing so, based on the public policy underlying witness immunity, is plain from the following statement in his judgment: ‘The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice’.[72] Rich ACJ approved a statement from an American decision stating that the law prohibits civil claims for damages against ‘all those … who had unlawfully conspired together’ for a witness to give false testimony.[73] McTiernan J spoke generally about the immunity extending to prohibit a civil action for damages based on ‘a criminal conspiracy to give [false] evidence’.[74] Williams J said that the immunity would be defeated if a civil action for damages could be maintained based on an allegation that a witness who gave false evidence ‘had conspired to do so with another person’[75] including a conspiracy with ‘the solicitor for the party on whose behalf’ the witness gave the false evidence,[76] as is alleged here.
[71](1940) 64 CLR 130, 141 (emphasis added).
[72]Ibid (emphasis added) (citations omitted).
[73]Ibid 139 (emphasis added).
[74]Ibid 145.
[75]Ibid 151 (emphasis added).
[76]Ibid.
In other words, the public policy at play would be defeated if the extension of witness immunity to conspiracies to procure false evidence was limited to witnesses and parties in the relevant proceeding.
This conclusion is also sufficient to dispose of proposed appeal ground 2, which contends that the trial judge was wrong to extend witness immunity to the conduct of legal practitioners who were not also witnesses in the relevant proceeding. We consider this issue further when dealing with the proposed grounds of appeal concerning the Oakley Thompson respondents.
In their written case, the applicants rely on the judgments of Mason CJ, Dawson and Wilson JJ in Giannarelli in support of a submission that witness immunity applies only to conduct that occurs ‘in court’.[77]
[77](1988) 165 CLR 543, 558 (Mason CJ), 595 (Dawson J), 569 (Wilson J).
The applicants’ reliance upon the references to ‘in court’ in the judgments in Giannarelli is misconceived. Giannarelli was not a case about witness immunity. Rather, it concerned advocate’s immunity. The High Court was addressing the question of whether a barrister can be sued by his or her client for negligence in the conduct of a case. The majority judges, following English authority, were prepared to accept that the immunity extended to work out of court which leads to a decision affecting the conduct of a case in court. It was in that context that the judgments addressed the issue in the terms that they did.
Proposed ground 4 contends that the trial judge erred in holding that witness immunity and/or advocate’s immunity applies after a judgment has been set aside for fraud. The first answer to this proposed ground is that, at the time the primary judge determined the summary judgment application, the judgment against the plaintiffs in the original proceeding (Maisano and Attard) had not been set aside. Thus, the trial judge could not have made the alleged error. However, after the judge granted summary judgment to the respondents in the second proceeding, the judgment in the original proceeding was set aside by Judge Cosgrave in the County Court on 31 January 2018. The judgment was set aside at a hearing in the absence of Maisano and Attard. Maisano has since applied to set aside the order depriving him of his judgment, and that application was successful.[78] However, as an appeal from that order is possible, we will consider this proposed ground on the basis that the judgment has been set aside.
[78]Bodycorp Repairers Pty Ltd v Maisano [2018] VCC 826.
In our view, this ground is met by the obiter statement of Williams J in Cabassi (Rich ACJ agreeing) that a conspiracy claim for damages, based on the giving of false evidence (as here), is bad in law even where the losing party is successful in setting aside the relevant judgment obtained on the basis of false evidence.[79]
[79](1940) 64 CLR 130, 149.
What we have said so far is sufficient to dispose of the conspiracy case against all respondents. The primary judge was right to conclude that this case had no real prospect of success.
Before turning to consider the other proposed grounds in relation to specific respondents or respondent groups, we note that the proposed amended statement of claim alleges that all defendants had possession of all of the undisclosed documents and all defendants thus breached obligations to produce them. Given that this application involves a proposed appeal against a summary judgment, and although the proposed amended statement of claim alleges a serious case of ‘deliberate’ failure to produce or disclose the undisclosed documents, we will deal with the proposed grounds of appeal concerning non-disclosure issues as if the proposed amended statement of claim had pleaded a separate case against each respondent, or respondent group, for non-disclosure of those documents in their possession.
Grounds concerning the Oakley Thompson respondents
We first deal with proposed ground 1, which contends that the primary judge erred in holding that witness immunity could apply to a corporation such as Oakley Thompson. In circumstances where Oakley Thompson is only joined as a party on the basis that it is vicariously liable for the conduct of its employees, Davies and Broadbent, there is no substance in this proposed ground of appeal.
Proposed ground 2 contends that the trial judge erred in holding that witness immunity could apply to the conduct of legal practitioners who had not been called as witnesses. For the reasons given above, this proposed ground has no prospect of success in relation to the conspiracy claim made against the Oakley Thompson defendants. We reject the applicants’ contention that extending witness immunity to legal practitioners who are alleged to have conspired to procure false evidence would create ‘an absolute immunity for all purposes’ for legal practitioners who engaged in such conduct. That is obviously not the case. Legal practitioners are subject to a range of professional sanctions, including proceedings for contempt of court and criminal proceedings for conspiracy to pervert the course of justice in such circumstances.
Proposed ground 8 raises a similar point, contending that the trial judge erred in applying (in the alternative) advocate’s immunity to the applicants’ conspiracy claims. Given that the conspiracy claims have no real prospect of success because they are met with witness immunity, it is unnecessary to consider this alternative basis for the primary judge’s conclusion.
Proposed ground 12 contends that the trial judge erred in holding that legal professional privilege applied ‘to notes that were used to coach a witness’. This issue requires some explanation.
For the purposes of the trial of the original proceeding, counsel acting for Maisano and Attard prepared a detailed proof of evidence, including most (if not all) of the questions he proposed to ask Mr Maisano to elicit that evidence in chief. We have read the document in full, and it was an obviously privileged document. It is not capable of any other characterisation.
In paragraph 40 of the proposed amended statement of claim, the applicants allege that a copy of this document was given to Maisano by Davies and/or Broadbent, who advised Maisano ‘that he had to study and learn and memorise the notes’ to support his case and, if he did not do so, that AAMI would terminate his recommended repairer sign for ‘Bodycorp Moorabbin’. On this basis, the applicants allege that the Oakley Thompson respondents engaged in conduct that ‘constituted an improper attempt to influence the evidence to be given by Maisano’. For the reasons given above, a cause of action of that kind is clearly barred by witness immunity. It amounts to a separate conspiracy claim against the Oakley Thompson defendants, or one or more of them, to procure false evidence.
As to the proposed grounds 10 and 11, although the proposed statement of claim alleges that the Oakley Thompson respondents were in possession of undisclosed documents at the time of the trial of the original proceeding, no basis is alleged as to why the Oakley Thompson respondents were themselves under any obligation to produce those documents to the applicants for the purposes of that proceeding. The Oakley Thompson respondents were not parties to the proceeding with discovery obligations. They were solicitors acting for Maisano and Attard.
If Maisano and Attard had a duty to discover or otherwise produce those documents to the applicants, that may be (or may have been) capable of supporting maintenance of the order setting aside the judgment in the original proceeding, provided that the non-discovery was fraudulent and otherwise meets the legal requirements for such an order.[80] However, apart from the conspiracy claims alleged against the Oakley Thompson respondents, paragraph 39 of the proposed amended statement of claim contains the bare assertion that, for an unspecified reason, the Oakley Thompson respondents themselves had a duty to provide discovery in the original proceeding. No basis for that claim is pleaded or was referred to in argument on behalf of the applicants. This claim has no prospect of success.[81]
[80]Clone (2018) 353 ALR 24, 37–43 [52]–[70].
[81]Proposed grounds 10 and 11 also fail for the reasons given below in addressing these grounds more generally.
Grounds concerning the AAMI witnesses
Proposed ground 3 contends that the trial judge erred in holding that witness immunity can apply to a person ‘when it had not been in contemplation that they would be a witness’. The basis of this proposed ground is that the AAMI witnesses conspired to procure the giving of false evidence by Maisano and Attard at a time before they had been served with subpoenas to themselves attend and give evidence at the trial, and that their ‘subsequent [false] testimony cannot render them immune for their unlawful conduct’.
This proposed ground has no prospect of success. For the reasons given above, any civil claim for damages arising from a conspiracy to procure false evidence is subject to the absolute defence of witness immunity. As we have said, the immunity applies to conspirators who are not themselves parties or witnesses. That is a complete answer to this proposed ground.
Proposed ground 6 contends that the trial judge erred in holding that witness immunity applies ‘to protect a subpoena recipient’ who fails to produce a document which the recipient was obliged to produce under the subpoena. In their written case, the applicants contend that non-compliance with a subpoena is punishable by way of proceedings for contempt and that ‘litigants may sue subpoenaed witnesses who fail to attend to give evidence …’. They rely upon Giannarelli for the latter proposition;[82] but their submissions do not refer to the emphasised part of what Wilson J said in that case in the context of addressing the appellants’ submissions, namely:
Litigants may sue subpoenaed witnesses who fail to attend to give evidence and recover costs thrown away through the non-attendance (but it appears that damages at large are not recoverable: see, generally, Roberts v J & F Stone Lighting & Radio Ltd).[83]
[82](1988) 165 CLR 543, 574–5.
[83]Ibid (emphasis added) (citations omitted).
Apart from the statement in Giannarelli by Wilson J which is quoted above, which does not support the existence of a right to claim damages against the recipient of a subpoena to produce documents who fails to produce one or more documents covered by the subpoena, the applicants put forward no authority to support this proposed cause of action against the AAMI witnesses. It is unnecessary to consider this claim further because, as witnesses, each of the AAMI witnesses was entitled to rely on witness immunity. They were not mere recipients of a subpoena to produce documents.
The public policy reasons underlying the absolute defence of witness immunity, based centrally on the finality principle, apply equally to allegedly false evidence of a witness that there are either no documents to produce in response to a subpoena; or that the documents which are produced wholly answer those sought by the subpoena.
The position of a person in receipt of a subpoena to produce documents who does not also give evidence at the trial is considered below in relation to AAMI.
Grounds concerning AAMI
Proposed ground 1 has been considered above in relation to the vicarious liability claim against Oakley Thompson. For the same reasons, insofar as this ground relates to the vicarious liability of AAMI for the alleged false evidence of its employees, Martin, Belleville and Oswald, it has no prospect of success.
Proposed ground 6 requires separate consideration in respect of AAMI itself, because it is not a natural person and did not give sworn evidence at the trial of the original proceeding. Nor was it a party to that proceeding.
AAMI received a subpoena to produce documents for the purposes of the trial of the original proceeding. The AAMI subpoena was directed to its ‘proper officer’, and required production of:
All documents, notes, letters, memorandums and writings concerning requests by Bodycorp … or its associates for accreditation as a AAMI Authorised Repairer of the premises … known as Bodycorp Malvern Accident Repair Centre in and about the period from January 1997 to December 1998.
The primary judge held that witness immunity applied to AAMI’s response to the subpoena. She reached this conclusion on the basis of the decision of Lord Denning MR in Penn-Texas Corporation v Murat Anstalt (No 2).[84] In Penn-Texas a question arose as to whether the ‘proper officer’ of a corporation served with a subpoena to produce documents was a ‘witness who gives testimony’. Lord Denning referred to the practice in England, as here, that the proper officer answering a subpoena is often not sworn as a witness, unless some question arises as to whether the documents specified in the subpoena are in the custody of the corporation, but simply produces the documents to the court. Notwithstanding this practice, Lord Denning held that the proper officer of the corporation was properly described as a ‘witness called to produce documents and give evidence as to their possession or custody’.[85]
[84][1964] 2 QB 647 (Penn-Texas).
[85]Ibid 662–3.
We agree with the primary judge. First, for the reasons she gave, based on Penn-Texas, the proper officer of AAMI who answered the subpoena did so as a witness. If, as is alleged, AAMI’s proper officer, charged with complying with the subpoena, ‘deliberately’ withheld from the court relevant documents falling within the scope of the subpoena, that conduct was equivalent to a witness giving false evidence, whether or not the proper officer was in fact called to give evidence on the return of the subpoena.
Second, if AAMI employees other than the proper officer were involved in a deliberate failure of the proper officer to produce relevant documents, that involvement would, for the reasons given above in relation to the conspiracy claims against persons who were not witnesses or parties, also be defeated by witness immunity.
Third, for the avoidance of doubt, this reasoning would apply equally to a natural person in AAMI’s position, i.e. a non-party whose only role as a witness is to answer a subpoena to produce documents, whether or not sworn when answering the subpoena.
We conclude that this proposed ground fails for the public policy reasons underlying the principles of witness immunity. This does not mean that there are no sanctions for failure to fully and honestly comply with a subpoena to produce documents. For example, contempt of court, disciplinary proceedings against an involved legal practitioner, or perjury if false evidence is given that the subpoena has been fully complied with.
We next consider proposed ground 13, by which it is contended that the primary judge erred in holding that AAMI was entitled to withhold production of a statutory declaration made by Maisano on 1 September 1998. What we have said in relation to ground 6 is sufficient to meet this ground. Whether privileged or not, the failure to produce this document is subject to witness immunity.
Grounds concerning Adams
We have already dealt with proposed ground 13. Proposed ground 14 contends that the primary judge erred in finding that the claims against Adams were met by his advocate’s immunity, in circumstances where he was not acting as a legal practitioner for any party in the original proceeding. It is unnecessary to consider this proposed ground. The proposed amended statement of claim does not reveal any arguable case against Adams, so the question of advocate’s immunity does not arise. Specifically:
(1) No basis is alleged as to why Adams had any obligation to produce any undisclosed documents in his possession. He was not a party, was not acting for a party, was not a witness and was not served with any subpoena.
(2) There is no pleaded fact to support the allegation that Adams was a party to the alleged conspiracy. Even if this could be cured by a further proposed amendment, the conspiracy claims are doomed to fail because of witness immunity for the reasons given above.
Proposed grounds 10 and 11
We have already addressed proposed grounds 10 and 11 in relation to the Oakley Thompson respondents. It is now necessary to address them more generally.
In their written and oral contentions on grounds 10 and 11, the applicants contend that the primary judge erred in relation to her treatment of the undisclosed documents by failing to apply the decision of the High Court in Commonwealth Bank of Australia v Quade.[86]
[86](1991) 178 CLR 134.
In Quade, the High Court considered a ground of appeal alleging a significant failure by the successful party to comply with its discovery obligations. The Court rejected a contention that, in such circumstances, a new trial should only be ordered on the ground of fresh evidence if it is ‘almost certain’ or ‘reasonably clear’ that the opposite result would have been produced if the undisclosed documents had been available at the first trial — particularly where the failure to discover the documents was ‘deliberate or remains unexplained’.[87] The High Court held that, in such circumstances, appellate courts were not required to apply such a strict test to the necessary causal link between the undiscovered documents and the result at trial.[88] In such circumstances, in determining whether to set aside the judgment appealed from and order a new trial, the court undertakes a balancing exercise taking account of a variety of possibly competing factors in exercising a discretion.[89] While rejecting the strict causal test, the High Court nevertheless stated that it was almost inevitable that a judgment will not be set aside on the grounds of failure to discover documents unless ‘there is at least a real possibility’ that the opposite result would have been reached at trial if the undisclosed documents had been in evidence.[90]
[87]Ibid 142.
[88]Ibid 142–3.
[89]Ibid.
[90]Ibid 143.
In Clone,[91] the High Court confined the principles in Quade to appellate courts exercising powers on appeal in the subject case,[92] and held that, after all appeal processes in the proceeding had been exhausted, the only ground on which a court can set aside a judgment is by a separate proceeding alleging actual fraud in the strict sense.[93] The High Court did not give express consideration to the necessary causal link to be established between proven fraud and the likely result in the case in the absence of that fraud. The High Court did, however, cite Wentworth v Rogers (No 5)[94] as authority for the necessity to establish ‘actual fraud’.[95]
[91](2018) 353 ALR 24.
[92]Ibid 37 [50]–[51].
[93]Ibid 37–41 [52]–[62].
[94](1986) 6 NSWLR 534
[95]Ibid 39 [55].
The applicants contend that the primary judge erred in applying the causation test stated in Wentworth v Rogers (No 5),[96] where Kirby P stated that a judgment will not be set aside for fraud unless the party seeking to set it aside establishes ‘that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed’.[97]
[96](1986) 6 NSWLR 534.
[97]Ibid 538–9; Reasons [25]–[26].
The applicants contend that there is a tension between the decisions in Quade, Wentworth and Clone on the causation issue. In Wentworth, the appellant both appealed against the trial judge’s decision and then commenced separate proceedings to have the judgment set aside on the ground that it was obtained by fraud. The New South Wales Court of Appeal declined to consolidate the appeal grounds with the attack on the judgment based on fraud, requiring the fraud proceeding to first be tried separately by a single judge. The trial judge struck out the statement of claim based on fraud, and the New South Wales Court of Appeal (Kirby P, Hope and Samuels JJ agreeing) dismissed the appeal and stated the relevant principles to be applied in setting a judgment aside for fraud.
The applicants contend that if the fraud consists of a deliberate failure to discover relevant documents which, if discovered and in evidence at the trial might have led to the opposite result, there is a clear tension between Wentworth — which requires a reasonable probability of an opposite result — and Quade, which requires only that there is a real possibility that the result might have been different as a factor in a discretionary mix as to whether a judgment should be set aside for failure to discover important documents. That tension is not resolved by the decision in Clone.
It is unnecessary for us to resolve any such tension to determine this appeal because proposed grounds 10 and 11 are misconceived.
First, because the claims against the respondents for damages are distinct from the claims against Maisano and Attard to set aside the judgment in the original proceeding. Thus, the possible tension between Quade, Wentworth and Clone has no relevance to the claims against the respondents for damages. Its only possible relevance is to the applicants’ claim against Maisano and Attard to set aside the judgment in the original proceeding.
Second, because Clone makes clear that the finality principle applies where, as here, appeal rights have been exhausted, and that there is no room for the operation of the Quade approach in such circumstances.
Third, for the reasons given above, the claims against the respondents in relation to the undisclosed documents have no real prospect of success because:
(1) witness immunity defeats the damages claims against the respondents who received subpoenas to produce the undisclosed documents in their possession but did not produce them, namely, Martin, Bellville, Oswald and AAMI; and
(2) there is no basis to claim that the respondents who did not receive subpoenas had any obligation to produce the undisclosed documents in their possession — namely, the Oakley Thompson respondents and Adams.
Application to adduce fresh evidence
After the hearing of the application for leave to appeal on 1 May 2018, the applicants applied for leave to adduce fresh evidence which they contend was not available to them at the time of the hearing before the primary judge. The subject evidence is an affidavit of Rodney Attard sworn on 30 January 2018 in the second proceeding, three months before the hearing in this Court on 1 May 2018. The matter was re-listed on 21 May 2018 to hear argument on the application to adduce fresh evidence.
In his affidavit, Attard swore that the contents of a letter written by his solicitors to the applicants’ solicitors on 19 January 2018 was ‘true and correct in every particular’. The letter relevantly states that:
[Attard] has said in the past that he was not a partner in [the Malvern] business. At all times, he was employed as a manager on a weekly salary. He received no financial benefit from nor did he contribute to the cost of any legal action.
[Attard] has been baffled as to why he was a Plaintiff in [the original proceeding].
The applicants contend that, if this evidence be accepted, the scope of the witness immunity attaching to the respondents cannot extend to the agreement alleged in paragraph 26 of the proposed amended statement of claim between AAMI, Maisano and Attard to commence the original proceeding in the knowledge that the allegations made in the statement of claim were false regarding Attard’s position as a partner in the Bodycorp Malvern business.
Counsel for the applicants explained from the Bar table that the application to rely on the Attard affidavit was not made at the hearing on 1 May 2018 because of oversight or mistake. He contended, however, that ‘the evidence was provided without objection’ at the 1 May 2018 hearing. That is not so. Counsel said during the hearing only:
I should just mention, because your Honour quite rightly referred to the decision of Justice Riordan, but also before [Judge] Cosgrave, Rodney Attard is where he gave consent to the judgment being set aside, and he also provided my client with an affidavit to the effect that he should never have been a plaintiff in the action as well. So that is also just as a matter of updating, for completeness.
This does not support counsel’s contention. In any event, no submissions were directed to the significance of the ‘updating’ for the purposes of this application for leave to appeal.
For the following reasons, the fresh evidence application should be dismissed.
First, the fresh evidence application is made late and requires an extension of time under r 3.02(2) of the Supreme Court (General Civil Procedure) Rules 2015. The application itself is made under r 64.13, which requires such application to be filed and served at least 28 days before the hearing of the application for leave to appeal and to be supported by an affidavit stating, among other things, the grounds of the application for leave to appeal to which the application to adduce fresh evidence relates.[98] The affidavit in support in this case does not comply with the Rules, and there is no good explanation as to why the Court should extend time in the circumstances of this case.
[98]Supreme Court (General Civil Procedure) Rules 2015 r 61.13(3)(c).
Second, the substance of the Attard affidavit is not fresh. Attard gave evidence in the original proceeding that Maisano had paid for the renovations and improvements at Malvern and that he had had no involvement in the ‘financials’ of the business. In the course of the original proceeding, including on appeal, the applicants contended that Attard had not been a proper plaintiff, as he had made no financial contribution to the business.
Third, we consider that the Attard affidavit, if permitted to be relied upon, is irrelevant to any proposed ground of appeal, and thus makes no difference to the conclusions we have reached above.
Fourth, the proposed amended statement of claim does not allege that false evidence was given as to Attard’s role as a proprietor of the Malvern business.
Fifth, the evidence in Attard’s affidavit does not support AAMI being a party to the alleged agreement.
Sixth, the relevance of Attard being a plaintiff in the original proceeding was not material to the decision in the original proceeding that false representations were made and that Maisano (not Attard) incurred expense in reliance on the representations.
Conclusion
None of the claims against the respondents in the proposed amended statement of claim has a real prospect of success. The primary judge was right to so hold, and to dismiss the proceeding against all the respondents. The application for leave to appeal will be refused.
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