Fung v Tam - [2012] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

Fung v Tam & Anor [2012] QCA 10

PARTIES:

ESTHER SAU KUEN FUNG
(appellant)
v
CHUNG SHUN TAM
(first respondent)
SHARON SAU FONG PUN
(second respondent)

FILE NO/S:

Appeal No 3666 of 2011
SC No 6756 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2011

JUDGES:

White JA and Philippides and North JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The application to adduce fresh evidence be refused.
2. The appeal be dismissed.

3. The appellant pay the respondents’ costs of and incidental to the appeal to be assessed.

CATCHWORDS:

APPEAL – VEXATIOUS LITIGANT – PROCEDURAL FAIRNESS – LACK OF JURISDICTION – APPEAL BE DISMISSED – original matters arose from proceedings relating to the appellant’s parents estates and family company – where the appellant had frequently instituted and conducted proceedings which were vexatious – whether the trial judge had erred in declaring the appellant a vexatious litigant – whether the trial judge lacked jurisdiction – whether procedural fairness was afforded to the appellant – appeal dismissed

Constitution of Queensland 2001, s 58
Succession Act 1981 (Qld), s 41(1)
Vexatious Litigants Act 1981 (Qld)
Vexatious Proceedings Act 2005 (Qld), s 5, s 5(1)(a), s 5(1)(b), s 5(1)(c), s 5(1)(d), s 5(1)(e), s 5(2), s 6, s 6(1)(a), s 7, s 8

Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; [2003] All ER (D) 429; [2003] EWCA Civ 1113, applied
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, applied
du Boulay v Worrell & Ors [2009] QCA 63, applied
Emanuele & Anor v Australian Securities Commission & Ors (1997) 188 CLR 114; [1997] HCA 20, cited
Gamester Pty Ltd & Anor v Lockhart (the Honourable Mr Justice) (1993) 67 ALJR 547; (1993) 112 ALR 623; [1993] HCA 79, cited
Hambleton & Anor v Labaj [2011] QCA 17, cited
Johns v Johns [1988] 1 Qd R 138, cited
National Australia Bank Ltd v Freeman [2006] QSC 86, applied
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, cited
Re Cameron [1996] 2 Qd R 218; [1996] QCA 37, applied
Riches v Hogben [1986] 1 Qd R 315, cited
von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681; [2005] QCA 109, cited

COUNSEL:

L Stephenson for the appellant
J Cremin for the respondents

SOLICITORS:

Rajesh Gopal for the appellant
Davellin Lawyers for the respondents

WHITE JA: I have read the reasons for judgment of North J and agree with his Honour’s reasons and the orders which he proposes.

PHILIPPIDES J: I agree with North J that the appeal should be dismissed with costs for the reasons stated in his judgment.

Introduction

NORTH J: The appellant appeals from orders…

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.

Continue reading Fung v Tam

Details

AGLC: Fung v Tam [2012] QCA 10
Case: [2012] QCA 10
Decision Date: 14 February 2012

CaseChat Overview and Summary

Fung appealed against the decision of a trial judge to declare him a vexatious litigant. The original matters arose from proceedings relating to the appellant's parents' estates and a family company. The appellant had frequently instituted and conducted proceedings that were vexatious. The court was required to determine whether the trial judge had erred in declaring the appellant a vexatious litigant, whether the trial judge had jurisdiction to make such a declaration, and whether the appellant was afforded procedural fairness.

The court found that the trial judge did not err in declaring the appellant a vexatious litigant as the appellant had indeed engaged in vexatious litigation. The court also held that the trial judge had jurisdiction to make such a declaration. Furthermore, the court found that the appellant was afforded procedural fairness in the proceedings. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of and incidental to the appeal to be assessed. The application to adduce fresh evidence was also refused.

Orders

Orders of the court

1. The application to adduce fresh evidence be refused.

2. The appeal be dismissed.

3. The appellant pay the respondents’ costs of and incidental to the appeal to be assessed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fung v Tam & Anor [2012] QCA 10
PARTIES:	ESTHER SAU KUEN FUNG (appellant) v CHUNG SHUN TAM (first respondent) SHARON SAU FONG PUN (second respondent)
FILE NO/S:	Appeal No 3666 of 2011 SC No 6756 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2011
JUDGES:	White JA and Philippides and North JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application to adduce fresh evidence be refused. 2. The appeal be dismissed. 3. The appellant pay the respondents’ costs of and incidental to the appeal to be assessed.
CATCHWORDS:	APPEAL – VEXATIOUS LITIGANT – PROCEDURAL FAIRNESS – LACK OF JURISDICTION – APPEAL BE DISMISSED – original matters arose from proceedings relating to the appellant’s parents estates and family company – where the appellant had frequently instituted and conducted proceedings which were vexatious – whether the trial judge had erred in declaring the appellant a vexatious litigant – whether the trial judge lacked jurisdiction – whether procedural fairness was afforded to the appellant – appeal dismissed Constitution of Queensland 2001, s 58 Succession Act 1981 (Qld), s 41(1) Vexatious Litigants Act 1981 (Qld) Vexatious Proceedings Act 2005 (Qld), s 5, s 5(1)(a), s 5(1)(b), s 5(1)(c), s 5(1)(d), s 5(1)(e), s 5(2), s 6, s 6(1)(a), s 7, s 8 Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; [2003] All ER (D) 429; [2003] EWCA Civ 1113, applied Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, applied du Boulay v Worrell & Ors [2009] QCA 63, applied Emanuele & Anor v Australian Securities Commission & Ors (1997) 188 CLR 114; [1997] HCA 20, cited Gamester Pty Ltd & Anor v Lockhart (the Honourable Mr Justice) (1993) 67 ALJR 547; (1993) 112 ALR 623; [1993] HCA 79, cited Hambleton & Anor v Labaj [2011] QCA 17, cited Johns v Johns [1988] 1 Qd R 138, cited National Australia Bank Ltd v Freeman [2006] QSC 86, applied Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, cited Re Cameron [1996] 2 Qd R 218; [1996] QCA 37, applied Riches v Hogben [1986] 1 Qd R 315, cited von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681; [2005] QCA 109, cited
COUNSEL:	L Stephenson for the appellant J Cremin for the respondents
SOLICITORS:	Rajesh Gopal for the appellant Davellin Lawyers for the respondents