IN THE APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS BY APPLICANT X
[2020] FCCA 2322
•21 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IN THE APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS BY APPLICANT X | [2020] FCCA 2322 |
| Catchwords: PRACTICE AND PROCEDURE – Application under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) – whether the application is vexatious – whether the application complies with the requirements of s 88T Federal Circuit Court of Australia Act 1999 (Cth) – application for leave to institute proceedings dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 88B, 88Q, 88T, 88U, 88V Federal Circuit Court Rules2001 (Cth), r 16.05(2)(b) |
| Cases cited: Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 |
| Applicant: | APPLICANT X |
| File Number: | SYG 1853 of 2020 |
| Judgment of: | Judge Street |
| Hearing date: | Determined in Chambers |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2020 |
ORDERS
Pursuant to the grounds in s 88B of the Federal Circuit Court of Australia Act 1999 (Cth), the applicant in the application under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) for leave to institute proceedings be described as “Applicant X”.
The application by Applicant X for leave to institute proceedings under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) is dismissed under s 88U(1) and (2) of the Federal Circuit Court of Australia Act 1999 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1853 of 2020
| Applicant X |
Applicant
REASONS FOR JUDGMENT
This is an application under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) for leave to institute proceedings.
The applicant for leave to institute proceedings under s 88T of the Act was the subject of an order made on 6 July 2018 prohibiting the applicant from instituting proceedings under s 88Q(2)(b) of the Act without leave of a Judge of the Court. This is an application for such leave.
Section 88T of the Act relevantly provides as follows:
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2) The applicant may apply to the Federal Circuit Court of Australia for leave to institute a proceeding that is subject to the order.
(3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 88V(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
It is a mandatory requirement of s 88T(3) of the Act that there must be an affidavit that complies with the cumulative criteria identified in paragraphs (a), (b) and (c).
The affidavit that has been filed by the applicant identifies a proposed application alleging fraud as grounds to set aside a judgment that was made by a Judge of this Court. The affidavit makes an allegation that there are fresh new facts.
The affidavit has a section that purports to relate to the mandatory requirements of s 88T(3)(c) of the Act, which appears on page 6 of the applicant’s affidavit. The content that is set out makes various assertions concerning the fraud but does not, of itself, purport to disclose all relevant facts about the application that are known to the applicant but rather appears to make assertions and submissions. On the face of the affidavit, it fails to comply with the requirements under s 88T(3)(c) of the Act. The Court considers that this non-compliance with the requirements of s 88T(3) of the Act is material and falls well short of substantial compliance.
There is a further section on page 9 of the affidavit of Applicant X that appears to identify all proceedings instituted by the applicant, meeting the requirements of s 88T(3)(b) of the Act.
Following the order that was made on 6 July 2018 the affidavit identifies a lodgement which occurred on 13 July 2018 with a particular identification number which was not processed. The Court is satisfied that the affidavit of Applicant X complies with the requirements of s 88T(3)(a) of the Act in that regard.
The applicant has provided a further proposed affidavit that annexes a purported process and makes submissions concerning a judgment made on 4 February 2016. That judgment was the subject of an unsuccessful appellant challenge by the applicant for leave.
The applicant’s affidavit makes bare assertions of the judgment made on 4 February 2016 having been obtained by fraud. There is reference to the communications that took place between the parties prior to the orders made on 4 February 2016. The applicant alleges that a particular email that was sent in April 2015 was false. The assertions in the affidavit make reference to the state of mind of the applicant and do not properly identify any basis for the assertion of falsity, nor does the affidavit identify how this is new evidence that was not known at the time of the dismissal of the proceedings before the Court.
The affidavit otherwise seeks to agitate alleged errors in the decision of the trial Judge. The assertions that the judgment was obtained by fraud or perjury appear baseless.
The Court has also taken into account the annexures to the affidavit.
This Court does have power to set aside orders that have been obtained by fraud. It is sufficient in that regard to refer to r 16.05(2)(b) of the Federal Circuit Court Rules2001 (Cth).
The equivalent provision in the Federal Court of Australia was the subject of discussion of the principles by the learned French J, as he then was, in Spalla v St George Motor Finance Ltd (ACN 007 656 555)(No 5) [2004] FCA 1262. His Honour there sited the principles that had been summarised by the learned then president of the Court of Appeal prior to his appointment to the High Court of Australia, Kirby P, with whom Hope JA and Samuels JA agreed, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, relevantly as follows:
1. The essence of the action is fraud and particulars of the fraud claimed must be exactly given and the allegations established by the strict proof which such a charge requires.
2. It must be shown by the party asserting that the judgment was procured by fraud that there has been a new discovery of something material in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment.
3. Mere suspicion of fraud raised by fresh facts later discovered will not be sufficient to secure relief.
4. Although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud and although there may be exceptional cases where such proof of perjury would suffice, without more to warrant relief of this kind, the mere allegation or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment.
5. It must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge.
6. The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly.
The learned French J also referred to the passage by Kirby P at 539:
In summary [the applicant] must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
The learned French J also referred to the stringent principles established by the authorities to confine the jurisdiction which were reviewed by the Full Court of the Federal Court in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 367 relevantly as follows:
(a) evidence discovered since the trial;
(b) evidence that could not have been found by the time of the trial by exercise of reasonable diligence;
(c) evidence so material that its production at the trial would probably have affected the outcome and when the fraud charge consists of perjury, then:
(d) the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result. (at 241)
In determining this application for leave to institute proceedings, the Court finds that there is insufficient evidence to establish that there is evidence discovered since the trial that could not have been found at the time of the trial by the exercise of reasonable diligence and that there is insufficient evidence of any newly discovered material the production of which at the trial would probably have affected the outcome. The Court is not satisfied that there is any new evidence which would be reasonably expected to be decisive at a re-hearing. In these circumstances, the proposed proceedings have no reasonable prospect of success.
It is further apparent that there is no proper proposed pleading that has been identified nor are there proper particulars in respect of the claimed fraud. The want of a proper pleading further supports the conclusion that these proceedings have no reasonable prospect of success. The evident purpose behind the requirement for leave is to prevent parties, the Court and the public in terms of access to justice being inconvenienced and impaired by vexatious proceedings. If an applicant seeks leave to institute proceedings which appear on their face to be reasonably arguable, the Court would take the steps required under s 88V of the Act.
There is no proper evidence to support the contention that the judgment was procured by fraud and that there has been a new discovery of something material in the sense of fresh facts which would provide a reason for setting aside the judgment. The applicant’s assertions do not disclose an arguable case upon which an application could be successfully advanced to have a judgment set aside by fraud. The Court considers and finds that the proposed proceedings are vexatious proceedings within s 88U of the Act and that accordingly an order must be made dismissing the application under s 88T of the Act for leave to institute a proceeding.
Further, the application for leave should be refused because the Court considers and finds that the affidavit does not substantially comply with s 88T(3) of the Act. This finding under s 88U(1) of the Act is an independent basis for the dismissal of the application under s 88T of the Act for leave to institute proceedings.
The Court notes that the applicant is a person in respect of whom there is a statutory prohibition in other legislation against the publication of the applicant’s name. The Court has taken into consideration the principles identified in the provisions of Part 6A of the Act, albeit proceedings have not been instituted, and under s 88B of the Act the Court is satisfied that a pseudonym or anonymity order is necessary to prevent prejudice to the proper administration of justice and is also necessary to protect the safety of a person being the applicant. It is for these reasons that the Court has made an order that the applicant in the application for leave to institute proceedings under s 88T of the Act be described as “Applicant X”.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 August 2020
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