Brookfield v Davey Products Pty Ltd - [2001] FCA 104

FEDERAL COURT OF AUSTRALIA
Brookfield v Davey Products Pty Ltd [2001] FCA 104
CIVIL PROCEDURE - application to set aside final judgment on the ground that it was procured by fraud - appeal processes exhausted - applicant does not provide proper particulars of alleged fraud - whether applicant has complied with directions of Court for conduct of claim - whether maintenance of claim in circumstances would result in an abuse of process of the Court - litigant in person - whether using proceedings to seek a collateral advantage - whether abuse of process of the Court should result in dismissal of claim or in stay of proceedings.
Bankruptcy Act 1966 (Cth) ss 41(6A) and (7)
Federal Court Rules O 11 r 10, O 12 r 5, O 20 r 2
Jonesco v Beard [1930] AC 298 considered
Hip Foong Hong v H. Neotia & Co [1918] AC 888 considered
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 considered
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 applied
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 applied
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied
Walton v Gardiner (1993) 177 CLR 378 applied
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 applied
Nolan v Administrative Appeals Tribunal (1997) 47 ALD 689 referred to
Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78 applied
Cooper v Williams [1963] 2 QB 567 applied
IAN WALTER BROOKFIELD and SEPTIC PRODUCTS AUSTRALIA
(IN LIQUIDATION) v DAVEY PRODUCTS PTY LTD
SG 112 OF 1993
MANSFIELD J
22 FEBRUARY 2001
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 112 OF 1993

BETWEEN:

IAN WALTER BROOKFIELD and
SEPTIC PRODUCTS AUSTRALIA
(IN LIQUIDATION)
Applicants

AND:

DAVEY PRODUCTS PTY LTD
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

22 FEBRUARY 2001

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The proceedings commenced by notice of motion dated 27 November 1998 brought by the applicants, Ian Walter Brookfield and Septic Products Australia (in liquidation), be stayed until further order.

2.The costs of the respondent Davey Products Pty Ltd (now called Yevad Products Pty Ltd) of and incidental to the notice of motion dated 27 November 1998 including the costs of the notice of motion of the respondent Davey Products Pty Ltd (now called Yevad Products Pty Ltd) dated 6 December 2000 be taxed and paid by the applicants Ian Walter Brookfield and Septic Products Australia (in liquidation).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SG 112 OF 1993

BETWEEN:

IAN WALTER BROOKFIELD and
SEPTIC PRODUCTS AUSTRALIA
(IN LIQUIDATION)
Applicants

AND:

DAVEY PRODUCTS PTY LTD
Respondent

JUDGE:

MANSFIELD J

DATE:

22 FEBRUARY 2001

PLACE:

ADELAIDE

REASONS FOR DECISION
BACKGROUND

These reasons concern the motion of the respondent Davey Products Pty Ltd (“Davey Products”) of 6 December 2000 to dismiss the applicants’ claim instigated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 104
Decision Date: 22 FEBRUARY 2001

CaseChat Overview and Summary

In the case of Brookfield v Davey Products Pty Ltd, the plaintiff, Ian Walter Brookfield, sought to set aside a final judgment obtained against him by the defendant, Davey Products Pty Ltd. The application was made in the Supreme Court of New South Wales, where the plaintiff was represented as a litigant in person. The primary issue before the court was whether the plaintiff had complied with the directions given by the Court for the conduct of the claim, particularly in relation to the need for affidavits to support the allegations of fraud. The court was also required to determine whether the maintenance of the claim would result in an abuse of process.

The court noted that the plaintiff had been repeatedly directed to provide affidavit support for his claims of fraud, but had failed to do so despite being granted indulgences. The Court was unwilling to consider the plaintiff's assertions of fact without proper affidavit evidence. Furthermore, the court found that the plaintiff's actions appeared to be an attempt to use the proceedings to seek a collateral advantage, rather than to pursue a legitimate legal claim. The court concluded that the plaintiff had not complied with its directions and that maintaining the claim would result in an abuse of process. The court therefore decided to stay the proceedings and ordered the plaintiff to pay the costs of the defendant.

The court's decision was based on the principle that a litigant in person must still adhere to the rules of court, and that the court should avoid summarily terminating proceedings without first ensuring that the litigant has had an opportunity to properly present their case. The court also found that the plaintiff's conduct demonstrated an abuse of process, which warranted the dismissal of the claim or a stay of proceedings. The orders made by the court reflected these findings, with the proceedings being stayed until further order and the plaintiff being required to pay the costs of the defendant.

Orders

Orders of the court

1. The proceedings commenced by notice of motion dated 27 November 1998 brought by the applicants, Ian Walter Brookfield and Septic Products Australia (in liquidation), be stayed until further order.

2. The costs of the respondent Davey Products Pty Ltd (now called Yevad Products Pty Ltd) of and incidental to the notice of motion dated 27 November 1998 including the costs of the notice of motion of the respondent Davey Products Pty Ltd (now called Yevad Products Pty Ltd) dated 6 December 2000 be taxed and paid by the applicants Ian Walter Brookfield and Septic Products Australia (in liquidation).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Mr Brookfield made a number of assertions of fact which he claimed warranted those orders. Counsel for the respondent objected to the Court acting on allegations of fact without affidavit material in support of them. In the light of my previous directions, I indicated that I would not have regard to the assertions made by Mr Brookfield unless they were supported by affidavit. That was not the first occasion he had been told that. He did not then indicate that he wished for further time to support those claims by affidavit. As no proper factual foundation for the making of those orders has been made out, despite the directions previously given, I decline to make them. It is not necessary to consider whether the orders sought could properly be made in any event.CONSIDERATION OF THE DISMISSAL MOTION The Court has, in the directions given in this matter from time to time, including the indulgences granted to the applicants, been mindful of Mr Brookfield’s position as a litigant now appearing in person. In the Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (“Wentworth”) Kirby P, with whom Hope and Samuels JJA agreed, said at 536-537:“the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly illexpressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out.” In this matter, it has been the applicants theme as I understand the points of claim, that Davey Products fraudulently concealed documents from the Court and from the applicants in the course of its discovery in the proceeding in which the primary judgment was given. In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 (“Quade”) the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) addressed whether an appellate court should set aside a judgment on the ground of fresh evidence becoming available after the trial. Their Honours said at 141-142 that there is a stringent rule in that ordinary class of case, supported by considerations of both justice and public interest, that the appellate court should be persuaded that if the new evidence had been available at the trial and had been adduced, an opposite result would have been produced or that it was highly likely that an opposite result would have been produced, and further that reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 112 OF 1993

BETWEEN:	IAN WALTER BROOKFIELD and SEPTIC PRODUCTS AUSTRALIA (IN LIQUIDATION) Applicants
AND:	DAVEY PRODUCTS PTY LTD Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	22 FEBRUARY 2001
WHERE MADE:	ADELAIDE