In the application for leave to institute proceedings by Applicant X dated 11 January 2021

[2021] FCCA 412

FEDERAL CIRCUIT COURT OF AUSTRALIA

In the application for leave to institute proceedings by Applicant X dated 11 January 2021 [2021] FCCA 412

File number:

SYG 332 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

5 March 2021

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) – whether appropriate to apply rule 2.06 of the Federal Circuit Court Rules 2001 (Cth) – application for leave to institute proceedings dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss 88B, 88Q, 88T, 88U

FederalCircuit Court Rules 2001 (Cth), r 2.06

Cases cited:

In the application for leave to institute proceedings by Applicant X [2020] FCCA 2322

Date of hearing:

Determined in Chambers

Place:

Sydney

ORDERS

SYG 332 of 2021

BETWEEN:

APPLICANT X

Applicant

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT:

1.The applicant in the application for leave to institute proceedings under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) dated 11 January 2021 be described as “Applicant X”.

2.The application for leave to institute proceedings under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) dated 11 January 2021 by Applicant X is dismissed under s 88U(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application under s 88T of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) for leave to institute proceedings.

2. The applicant is the subject of orders made on 6 July 2018 under s 88Q(2)(b) of the Act prohibiting the applicant from instituting proceedings without leave of a Judge of the Court. The applicant has made an application for such leave.

3. The provisions of s 88T of the Act are 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.

4. It is a mandatory requirement that the applicant has provided an affidavit that complies with the cumulative criteria identified in s 88T(3) of the Act. The applicant’s affidavit does purport to comply with paragraphs (a), (b) and (c).

5. The difficulty that the applicant faces, however, is that the proposed application is, in substance, to bring proceedings of the very same nature that was the subject of a refusal of leave to permit the institution of proceedings by the applicant the subject of reasons delivered on 21 August 2020.

6. The applicant submits that he has addressed the concerns that were identified by the Court on that occasion and has now identified the basis of the alleged fraud, which is said to be false evidence given by the proposed respondents. The basis for the allegation of fraud is not supported by any probative evidence. The basis of the fraud does not reveal any arguable cause of action against the respondents.

7. There are repeated assertions by the applicant of the circumstances in which the applicant has ascertained the alleged fraud, as well as an alleged demand that the Court “investigate into the fresh new evidence for the case that the court can establish ‘the pleadings of the fraud’ on that basis.”

8. The supporting affidavit and material together with the proposed draft application reflect a proposed re-agitation of the same alleged cause of action that this Court found failed to reveal an arguable cause of action against the respondents and, on its face, reflects proposed proceedings that have no reasonable prospect of success and are vexatious.

9. The Court has taken into account the discussion of the principles as identified in paragraphs 14 to 16 of this Court’s reasons delivered on 21 August 2020 in the earlier application for leave to institute proceedings by the applicant.

10. The Court finds that there is insufficient evidence to establish that there is relevant and probative evidence as to the alleged fraud discovered since trial that could not have been found at the time of trial by the exercise of reasonable diligence. The Court finds that there is insufficient evidence of any newly discovered material, the production of which at trial would probably have affected the outcome of the case the subject of the alleged fraud. The Court finds that there is insufficient evidence of any new evidence which would be reasonably expected to be decisive at a hearing.

11. The Court finds that there is no reasonably arguable case. The Court finds that there is no reasonably arguable case of a cause of action in fraud against the respondents. The Court finds that the proceedings have no reasonable prospect of success. The Court finds that there is no relevant or probative evidence to support the contention that the judgment was obtained by fraud, let alone fraud of the proposed respondents. The Court finds that the applicant’s assertions do not disclose an arguable case upon which an application could be successfully advanced to have the judgment set aside by fraud.

12. The Court 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 proceedings.

13. The Court notes that an issue was raised as to whether or not the proposed proceedings might have been the subject of an application by a Registrar of the provisions in r 2.06 of the FederalCircuit Court Rules 2001 (Cth) (“the Rules”). Those Rules are not ones that are appropriate to apply in respect of a litigant seeking leave under Part 6B Division 3 of the Act. Any such application for leave must be considered by a Judge of the Court, whether in chambers or in open Court.

14. The Court also notes that there is a statutory prohibition in other legislation against the publication of the applicant’s name. The Court has taken into account the principles identified in Part 6A of the Act, albeit that the proceedings have not been instituted, and finds that under s 88B of the Act the Court is satisfied that it is necessary that a pseudonym or anonymity order be made in respect of the applicant to prevent prejudice to the proper administration of justice and also is necessary to protect the safety of a person, being the applicant. It is for these reasons that the Court has also made an order that the applicant in the application for leave to institute the proceedings under s 88T of the Act be described as “Applicant X”.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       5 March 2021