Courtney v Chalfen

Case [2023] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION:

Courtney v Chalfen [2023] QSC 126

PARTIES:

SIMON CHRISTOPHER COURTNEY
(Plaintiff)

v
ELEANOR SOPHIE CHALFEN

(Defendant)

FILE NO/S:

1353/23

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

9 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2023; further written submission received from the plaintiff on 8 June 2023

JUDGE:

Muir J

ORDERS:

1.   Proceeding 1353 of 2023 is permanently stayed.

2.   Save for any appeal from this Order, the plaintiff is restrained from bringing any further proceeding in this Court or making an application in this Court against the defendant in respect of the subject matter of proceeding 2178/2020.

CATCHWORDS:

CIVIL PROCEDURE – QUEENSLAND - POWERS OF COURT GENERALLY – WHETHER NEW FACTS DISCOVERED – ADMISSION OF FRESH EVIDENCE – MATTERS ARISING AFTER PREVIOUS ORDERS – DISCRETION – POWER TO STAY – ABUSE OF POWER – COURTS POWER TO RESTRAIN – where the defendant applied to stay proceedings commenced against her by the plaintiff, her former husband that seek to set aside earlier orders – where applicant and respondent were previously married but estranged –  where divorce proceedings on foot in the Grand Court of the Cayman Islands – where the plaintiff commenced earlier proceedings in this jurisdiction seeking to recover damages for conversion and breach of bailment from the defendant – where those proceedings were stayed by an earlier order of this Court – where that earlier order was upheld on appeal – where  subsequent application by the plaintiff to set aside earlier stay orders was dismissed by another judge of this Court – whether current proceeding by plaintiff to set aside earlier orders is underpinned by new facts – whether new facts if discovered in time would have entitled the plaintiff to a different order – whether current proceedings ought to be permanently stayed – whether current proceeding is an abuse of process – whether the applicant should be restrained from bringing any further proceeding in this Court seeking relief arising from the subject matter of the earlier proceedings

Ashby v Slipper (2014) 219 FCR 322

Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd [2022] QSC 112
Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd [2022] QCA 232

Clones Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12

Courtney v Chalfen [2020] QSC 195

Courtney v Chalfen [2020] QCA 294

Courtney v Chalfen [2021] HCASL 128
Courtney v Chalfen unreported 2178 of 2022 dated 24 November 2022 (Crowley J)
IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428
Lu v Petrou [2011] QSC 57
Wentworth v Rogers [2006] NSWCA 145
Williams v Spautz (1992) 174 CLR 509
W v W [2009] CILR 255
YIC Industrial Pty Ltd v SPA Investments Pty Ltd [2022] QCA 95

Uniform Procedure Rules 1999 (Qld) r 668 (1)(b), r 667(2) (b), r 127, r 389A

COUNSEL:

The plaintiff appeared on his own behalf

N Ferrett KC and R Byrnes for the defendant

SOLICITORS:

The plaintiff…

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Details
AGLC
Courtney v Chalfen [2023] QSC 126
Case
[2023] QSC 126
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, Mr. Courtney, a former Australian resident who had been deported from the Cayman Islands, filed a claim against his former wife, Ms. Chalfen, seeking damages for conversion and breach of bailment. The court was asked to determine whether the application to set aside earlier stay orders was justified by new facts, whether the new facts would have entitled the plaintiff to a different order, and if the proceedings should be permanently stayed. The court considered the evidence provided by Mr. Courtney, including an email from Ms. Chalfen's solicitor, which he claimed showed dishonesty. However, the court found that the evidence did not satisfy the requirements for fresh evidence and was not sufficient to set aside the orders made in the previous proceeding. The court also determined that the new facts did not entitle Mr. Courtney to a different order and that the proceedings should be permanently stayed. The court further restrained the plaintiff from bringing any further proceedings in the court against the defendant in respect of the subject matter of the earlier proceedings. This decision underscores the importance of meeting the criteria for admitting fresh evidence and the court's power to permanently stay proceedings where appropriate.

Orders

Orders of the court

1. Proceeding 1353 of 2023 is permanently stayed.

2. Save for any appeal from this Order, the plaintiff is restrained from bringing any further proceeding in this Court or making an application in this Court against the defendant in respect of the subject matter of proceeding 2178/2020.

Background

Background to the litigation

In order to determine the application it is necessary to set out the relevant factual background.[2][2]A bundle of relevant documents including the material and submissions in an earlier application before Crowley J, the relevant authorities and the earlier decisions involving the parties were helpfully provided by the applicant to the court (and Mr Courtney) without objection. This folder is marked for identification “A”.Relevant Background Mr Courtney is an Australian citizen who was admitted as a solicitor in Queensland in 1999. For a time he worked as a lawyer and resided in the Cayman Islands. Mr Courtney married Ms Chalfen in the Cayman Islands in July 2014 but they separated in July 2016. During the course of their short-lived marriage the couple resided in Ms Chalfen’s apartment in the Cayman Islands and Mr Courtney stored some of his property – including (apparently) the items, in a guest bedroom there. In 2017 Ms Chalfen petitioned for divorce in the Grand Court of the Cayman Islands. Some of the items were then moved to a storage shed and some items have apparently been damaged. In 2018 Mr Courtney was deported from the Cayman Islands after serving a term of imprisonment there for a dangerous driving offence. He subsequently moved back to Queensland. Since this time Mr Courtney has been defiant and relentless in his pursuit of his former wife for conversion/ breach of bailment and damage to some of the items. In February 2020 (as a self-represented litigant) he commenced proceeding 2178 of 2020 in this court against Ms Chalfen claiming damages for conversion and breach of bailment for wrongly detaining the items. On 26 June 2020 Williams J ordered a stay of this proceeding pursuant to rule 127 of the Uniform Procedure Rules 1999 (Qld) (UCPR) on the basis that this Court was an inappropriate forum in which to try the claim.[3] On 24 July 2020 Williams J also ordered that Mr Courtney pay Ms Chalfen’s costs. [3]Courtney v Chalfen [2020] QSC 195. Mr Courtney appealed this decision but on 18 December 2020 the Court of Appeal dismissed the appeal with costs.[4] An application for special leave to the High Court by Mr Courtney was subsequently dismissed.[5] [4]Courtney v Chalfen [2020] QCA 294.[5]Courtney v Chalfen [2021] HCASL 128. On 11 October 2022, Mr Courtney filed an interlocutory application in proceedings 2178 seeking to set aside the stay order and the subsequent cost order on the basis that both orders were obtained by fraud. That application was initially listed for mention on 10 November 2022. But on 2 November 2022, a cross-application was filed by Ms Chalfen seeking to have the 11 October 2022 application dismissed. That application was heard on 24 November 2022, at which time Crowley J dismissed Mr Courtney’s 11 October application and made an order for fixed costs against him. Relevantly, there was no appeal of either of these orders. On 9 February 2023, Mr Courtney filed the claim and a statement of claim in the current proceeding 1353 of 2023 seeking orders as follows:1. That the following order made on 26 June 2020 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) of the Uniform Civil Procedure Rules as it was obtained by fraud:(a) The proceeding be permanently stayed.2. The following order made on 24 July 2020 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) as it was obtained by fraud:(b)The respondent/plaintiff pay the applicant’s/defendant’s costs of an incidental to the application in the proceeding on the standard basis.3.The following order made on 24 November 2022 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) as it was obtained by fraud:2.The plaintiff pay the defendant’s costs of the application in the fixed sum of $9,075.00.

Evidence

Evidence Before The Court

The new facts that Mr Courtney relies upon can be classified under four headings which are dealt with in turn below. Hatfield evidence Mr Courtney’s submission is that Ms Laura Hatfield (Ms Chalfen’s solicitor in the divorce proceedings) acted dishonestly when she represented to this Court in proceeding 2178 that (among other things) the gold bullion was subject to the jurisdiction of the Grand Court of the Cayan Islands when she knew that the Grand Court had ruled that the gold bullion was a non-matrimonial asset. The evidence said to underpin this submission is twofold. The first is an email from Ms Hatfield to Mr Courtney dated 11 August 2019. This email relevantly stated as follows:“As you are aware, Elle understands that the one kilogram bar and 20 one ounce gold eagle coins (2010) which you previously owned were given by you to her Mother as part payment of a loan her Mother gave you for legal fees incurred in your defence of criminal charges. The balance of that loan remains due and owing.…None of the matters raised by you are relevant to the making of a financial order in the Cayman Divorce proceedings. As you will recall Judge Williams has indicated to the parties that he does not have any jurisdiction over a dispute in relation to the gold as Elle does not assert any ownership interest and also that he will not entertain any dispute about chattels……” The other fact referred to by Mr Courtney emerges from the affidavit of Ms Hatfield relied upon by Ms Chalfen in the hearing before Williams J in proceeding 2178 . The offending part of this affidavit is said by Mr Courtney to be at paragraph 9 which provides as follows:[12]“In the circumstances that the parties are still completing [a phase of divorce proceedings relating to financial matters], any asset of a party, regardless of whether it is pre-marital asset is subject to the jurisdiction of the Grand Court until that Court makes a final order dealing with financial matters relevant to the divorce which either specifies the treatment of the parties’ assets or does not involve an asset of a party.In the circumstances that the Plaintiff asserts that the Gold Bullion…is his property, then that Gold Bullion is subject to the jurisdiction of the Grand Court for the reasons set out in paragraph 8 above.”[12]A copy of Ms Hatfield affidavit is at SCC-4 to Mr Courtneys Affidavit sworn 3 February and filed in the current proceeding. I reject Mr Courtney’s submission that this evidence is a basis for setting aside the orders made in proceeding 2178 or the cost order made by Crowley J for the following four reasons. First: The evidence does not satisfy the requirements for the admission as fresh evidence as discussed by Margaret Wilson AJA (with reference to the relevant High Court authorities) in IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428.[13] For example, Mr Courtney’s explanation that he must have received the email when it was originally sent but he did not remember seeing it at the time is insufficient to satisfy the “no lack of reasonable diligence test”.[14] But even if I am wrong about this, as discussed in paragraph 29 below, I am otherwise not satisfied that it is “almost certain” or “reasonably clear” that the opposite result would have been produced if the evidence had been available before Williams J[15] or that on any view, Mr Courtney would have been entitled to an order in his favour or to a different order. [13]IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 at 460 and 461.[14]Ibid at 461. [15]Ibid at 461.

Decision

Reasons for decision

Fourthly, I am not satisfied that there is sufficient basis or any basis shown by this evidence that would have entitled Mr Courtney to an order lifting the stay in proceeding 2178 or to a different order, such as the one that he is obviously seeking – that is one that sees his claim for damages for bailment against Ms Chalfen heard in this jurisdiction. This finding is supported by the following observations of the Court of Appeal in confirming that an order for a stay of proceeding 2178 was appropriate, in Courtney v Chalfen [2020] QCA 294:[55] When one examines the factors listed, all of which are justified on the material before the learned primary judge, it cannot be demonstrated that her Honour erred in reaching the conclusion that a stay was appropriate. Some examples suffice to make the point.[56] It is correct to say that the only connection with Queensland is that the appellant resides here now, and some of his assets have been sent here. However, apart from discovering the alleged consequences of mis-packing the vinyl records and Blu-Ray discs, the damage to two pairs of sunglasses and other personal items, and that some personal items of clothing and furniture had not been packed, everything else to do with this case concerns the Cayman Islands. [57] Other than the appellant, no witnesses are present in Australia. Indeed, the respondent’s mother, who apparently has a claim to the gold, is resident in the United Kingdom. [58] The respondent cannot travel because of serious health issues. She is already involved, as is the appellant, in court proceedings in the Cayman Islands concerning matrimonial property. The appellant already has participated in those divorce proceedings by a form of video conference. His inability to travel to the Cayman Islands because of his convictions and deportation can be overcome in that way. [59] The appellant’s contention that he cannot meaningfully institute proceedings in the Cayman Islands in respect of the claims he now makes here, cannot be sustained. He professes to be without means, but the fact is that on his own case he is in possession in Queensland of numerous assets such as the apparently valuable collection of rare vinyl records and Blu-Ray discs, as well as the apparently valuable collection of sunglasses, all of which could probably be realised in order to meet the filing fees applicable to commencing proceedings in the Cayman Islands. Even though the realisation of those assets might not produce sufficient funds to instruct local solicitors in the Cayman Islands, nonetheless the appellant is a fully qualified lawyer and, as his appearance before this Court demonstrated, fully able to conduct his own litigation.…..[61] Finally, the learned primary judge found that any asset of a party to a marriage, regardless of whether it was a pre-marital asset, was subject to the jurisdiction of the Grand Court of the Cayman Islands until that court made a final order dealing with the financial matters relevant to the divorce. That finding is not challenged by the appellant, at least not beyond mere assertion. That being so, contentions by the appellant about ownership of the gold and other items of his properly left in the Cayman Islands are matters which are likely to be dealt with by the Grand Court of the Cayman Islands. As her Honour found, that was a compelling reason to stay the proceedings in Queensland. [Emphasis added]

Ratio Decidendi

Legal Principle Established

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