Jorgensen v Australian Securities and Investment Commission
[2019] TASSC 46
•28 November 2019
[2019] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Jorgensen v Australian Securities and Investment Commission [2019] TASSC 46
PARTIES: JORGENSEN, Alan Bradley
v
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
FILE NO: 1654/2019
DELIVERED ON: 28 November 2019
DELIVERED AT: Hobart
HEARING DATES: 30 October and 20 November 2019
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Procedure – Civil proceedings in State and Territory courts – Inherent and general statutory powers – To prevent abuse of process – Generally.
Walton v Gardiner (1993) 177 CLR 378, applied.
Aust Dig Procedure [2018]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: J Clarke SC
Solicitors:
Applicant: In person
Respondent: Ashurst Australia
Judgment Number: [2019] TASSC 46
Number of paragraphs: 55
Serial No 46/2019
File No 1654/2019
ALAN BRADLEY JORGENSEN v
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION
REASONS FOR JUDGMENT HOLT AsJ
28 November 2019
Introduction
On 20 November I made orders dismissing two interlocutory applications filed by Mr Alan Jorgensen. I made an order on an interlocutory application filed by the Australian Securities and Investment Commission summarily dismissing the originating application which had been filed by Mr Jorgensen. I had earlier on that day refused to grant to Mr Jorgensen an adjournment of the hearing. I advised that I would publish my reasons at a later date.
In order to ensure that Mr Jorgensen was not disadvantaged by the subsequent publication of the reasons, of my own motion and without opposition from ASIC, I extended the time for any appeals against my orders of 20 November to a date being 21 days following the publication of these reasons.
I now provide my reasons.
The primary proceeding
By originating application filed 26 June 2019 Mr Jorgensen applied for orders that the respondent, the Australian Securities and Investment Commission, make preliminary discovery of specified categories of documents pursuant to the Supreme Court Rules 2000 (Tas), r 403E. The rule is as follows:
"Discovery from prospective defendant
If –
(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; and
(b) after making all reasonable inquiries, the applicant does not have sufficient information to enable a decision to be made as to whether or not to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that –
(i) that person has or is likely to have, or has had or is likely to have had, in that person's possession any document relating to the question whether the applicant has the right to obtain the relief; and
(ii) inspection of the document by the applicant would assist in making the decision –
the Court or a judge may order that person to make discovery to the applicant of any document of the kind described in paragraph (c)."
By its terms the originating application asserted that the documents were sought so that an informed decision could be made as to whether to commence proceedings against ASIC and unnamed others. Paragraphs 1, 2 and 3 of the originating application, excluding the categories of documents listed, are as follows:
"1 That pursuant to the Tasmanian Supreme Court Rules Reg 403E Preliminary Discovery from Prospective Defendant, the Applicant seeks Orders for the Preliminary Discovery from ASIC, of the following below documents (i) to (vi), so it can then make an informed decision as to whether or not, to issue court proceedings against ASIC and others.
2 The possible Proceedings may include, Conscious Maladministration, and Conspiracy to Defraud the Applicant of his business and profits, including, unlawfully inciting the HSBC, his bankers, to Appoint Receivers over his business on 1st July 1999 and so destroying his Group's friendly $15.8M imminent takeover of its competitor, Castalloy Ltd. Then again, in 2007 in Brisbane, for ASIC's blatant Conscious Maladministration, in setting about to maliciously destroy the Applicant's new highly successful business, Jim's Water Tanks Pty Ltd, so as to cut of [sic] its cash flow and so undermine his ability to continue to fund the above mega million dollar legal action against ASIC in Melbourne.
3 Since all Documents requested here have previously been sought many times under FOI by Alan Jorgensen, but have been either refused by ASIC, or 90% redacted, then Orders are sought that these pivotal documents requested, are free of any redaction."
Mr Jorgensen has not disclosed why he selected Tasmania as the appropriate forum. The only possible connection, albeit extremely tenuous, is that the documents sought include draft reports and a final report of ASIC's former Acting Tasmanian Regional Commissioner, Mr Simon Dwyer, prepared in 1999 or 2000. ASIC lodged a conditional appearance including as a ground for setting aside the proceeding that the originating application had been lodged in an inappropriate forum. In any event, this court has jurisdiction to deal with the matter by reason of uniform cross-vesting legislation.
The interlocutory applications
Four interlocutory applications were filed. The first was filed by ASIC on 9 August 2019 seeking an order that the originating application be summarily dismissed, or proceedings on it be permanently stayed, primarily on the ground that it was an abuse of process. The second, third and fourth interlocutory applications were filed by Mr Jorgensen. On 26 August 2019 he filed an application seeking an order amending the originating application by deleting one of the categories of documents sought, which included the Dwyer reports. On 26 September 2019 he filed an application seeking an order for the production of documents, including some in the category which Mr Jorgensen wanted removed from the originating application. The basis was that the documents had been referred to in an affidavit filed by ASIC in support of its dismissal application and so, it was asserted, production was compellable regardless of the outcome of the originating application. On 10 October 2019 he filed an interlocutory application seeking a declaration that allegations made by him which were not the subject of denials by ASIC were deemed to be admitted.
All of the interlocutory applications were set down for hearing on 30 October 2019.
The refusal to grant an adjournment to Mr Jorgensen on 20 November
The hearing of the interlocutory applications commenced on 30 October. On that day I granted Mr Jorgensen's interlocutory application to amend the originating application by deleting from it the category of documents sought to be deleted. I determined that the three extant interlocutory applications would be heard together with ASIC to commence. ASIC presented its evidence followed by Mr Jorgensen reading into evidence three affidavits which he had sworn and filed in the proceeding. Counsel for ASIC commenced his submissions, an outline of which had been filed and served on Mr Jorgensen on 17 October. Counsel also produced a chronology of events, which chronology identified the source material from which it had been constructed. By the time of the luncheon adjournment, counsel had not completed his submissions. During the luncheon adjournment Mr Jorgensen received a message that his 88 year old mother in Cairns had been hospitalised with critical health problems. An x-ray had revealed lumbar scoliosis and she had vascular calcification of the aorta. A CT scan had revealed a likely spontaneous intracerebral haemorrhage. Mr Jorgensen needed to return to Cairns where he lives. The hearing was adjourned to 10 am on 20 November, a date which Mr Jorgensen accepted subject to his proviso: "The only thing that will stop me is my mother's health".
On Saturday, 9 November Mr Jorgensen sent an email to the Court seeking an adjournment to 10 December. No basis for the application was stated. The adjournment application was listed for hearing by telephone on 15 November. About 15 minutes prior to the telephone listing Mr Jorgensen sent an email stating that he was in Vietnam and containing various complaints about the procedure adopted by the Court on 30 October and about ASIC's conduct generally. He said in his email:
"So in short, this proposed next date for hearing of 10th December, will enable this Application for a Judicial Review before a Tasmanian SC Judge or Full Court, to unfold. Not certain if this will be via the Federal Court's ADJR Act or Tasmania's.
Perhaps this Court may suggest it be put back further to enable the higher Court to consider the Application to first hear my 2 Interlocutory Applications or even strike out ASIC's strike out action altogether & leave the initial Preliminary Discovery Application afoot."
I refused to grant an adjournment, giving as my reason the undesirability of fragmenting proceedings by granting an adjournment to enable an appeal to be brought against discretionary procedural rulings.
By email dated 19 November, Mr Jorgensen again applied for an adjournment of the continuation of the hearing listed for the following day. Despite my refusal to grant his first adjournment application, he had remained in Vietnam and the new application had been brought upon the same ground which I had rejected a few days earlier. In his email he added another ground. He said that he was in Vietnam to assist with obtaining visas for his son and his son's Vietnamese mother so that they could travel to Australia on their Vietnamese passports and the child could be given medical treatment in Australia. The accessibility of Australian medical treatment was the result of the son obtaining Australian citizenship by descent on 25 October 2019. The supporting documentation provided by Mr Jorgensen included a print-out of the visa applications generated on 11 November and a copy medical report in respect of Mr Jorgensen's son.
The medical report is dated 21 October 2019 and refers to the child, born on 8 October 2018, being reviewed in a Vietnamese hospital on 18 October 2018 with a diagnoses of "pulmonary valve stenosis of the low – moderate level". The report shows that the child was discharged from hospital on 18 October 2018 in a stable condition with the child to be re-presented at the outpatients' department in three months' time for further review. No more recent medical evidence was presented and in particular no evidence was presented indicating that the treatment of the child in Vietnam or Australia had become a matter of urgency.
At the commencement of the resumed hearing on 20 November Mr Jorgensen made submissions in support of his adjournment application by telephone. They lasted for about two hours and fell into the following six categories:
(1)An adjournment should be granted so that Mr Jorgensen could lodge an appeal against procedural orders which I had made on 30 October and then apply to a judge for a stay of proceedings pending the hearing and determination of the appeal.
(2)Mr Jorgensen was in Vietnam making arrangements for his son and his son's mother to travel to Australia for medical treatment. He also has to travel to Vietnam regularly for business purposes.
(3)Mr Jorgensen needed to do further work on his response to the submission put forward on behalf of ASIC on 30 October.
(4)Mr Jorgensen wished to cross-examine the deponent of two affidavits read into evidence on behalf of ASIC on 30 October.
(5)The hearing should be completed by written submissions and a decision made in chambers on the papers, rather than by the continuation of the oral hearing.
(6)An adjournment would not cause any injustice to ASIC.
I deal with the matters raised in the order in which I have set them out.
Firstly, there had been no order staying the hearing and the ground for the adjournment must be rejected on the same basis that the adjournment application, presented on 15 November, had been rejected. Namely the undesirability to the good administration of justice of fragmenting proceedings to enable appeals to be lodged, heard and determined in respect of discretionary procedural rulings made during the course of a hearing.
Secondly, no information was presented as to whether or not the proposed Australian medical treatment for Mr Jorgensen's son had become a matter of urgency such that it was appropriate for him to have given priority to it over attendance at the hearing. The visa applications appear to have been completed on line and electronically submitted to the Australian Government Department of Home Affairs on 11 November. No reason for Mr Jorgensen to travel to Vietnam to complete the visa applications was given. Accordingly, there was insufficient information provided to justify the grant of an adjournment on this ground.
Thirdly, Mr Jorgensen had clearly had ample time to prepare his submissions. ASIC had provided him with its outline of submissions on 17 October and had almost completed its oral supplement to those submissions when the hearing was adjourned on 30 October. As will become apparent during the course of these reasons, the matters raised by counsel had been well known to Mr Jorgensen for many years and an adjournment on this ground was unnecessary.
Fourthly, the affidavits of ASIC's witness had been read into evidence on 30 October. On being asked whether he had any evidentiary objections to the first affidavit, Mr Jorgensen replied "Not that I can think of at the moment your Honour". On being asked whether he had any evidentiary objections to the second affidavit, Mr Jorgensen replied "No, the same in principle, I don't have an objection your Honour". Mr Jorgensen had not issued a notice to ASIC requiring the deponent to be produced for cross-examination. If he had, then pursuant to r 463, unless an exemption was ordered or a grant of special leave given, the affidavits could not have been used. Because of the absence of a r 463 notice, the deponent of the two affidavits, who is based in Canberra, was not present at the hearing on 30 October. Mr Jorgensen gave no particularity as to the matters which he intended to canvas in cross-examination if it was to be allowed. The inconvenience of causing the witness to be available for cross-examination and no clearly stated purpose being put forward for the cross-examination, an adjournment was not justifiable on this ground.
Fifthly, the hearing had been commenced as an oral hearing in the usual way. ASIC wished to continue its presentation orally and written materials previously provided by Mr Jorgensen were difficult to follow. Changing the nature of the proceedings mid-course to an assessment on the papers was not appropriate in the circumstances.
Sixthly, an adjournment would cause injustice to ASIC which may not have been mitigated by an order as to costs. ASIC has an unsatisfied costs order against Mr Jorgensen made in the Supreme Court of New South Wales in 2016. Counsel and the instructing solicitor for ASIC had, respectively, travelled from Sydney and Canberra on 19 November for the continuation of the hearing on 20 November.
The bases put forward for an adjournment, neither individually nor collectively, justified the granting of an adjournment and the application was, accordingly, refused.
Immediately following the refusal of the adjournment application, a direction was made, without opposition, pursuant to the Evidence (Audio and Visual Links) Act 1999 (Tas), s 6, that Mr Jorgensen could make submissions by audio link using the existing telephone link from Vietnam. The hearing so proceeded.
Mr Jorgensen's interlocutory application for production of documents
In support of its dismissal application, ASIC filed an affidavit of solicitor Melanie McKean, affirmed 9 August 2019. This was followed by the issue of a notice by Mr Jorgensen on Wednesday, 14 August, relying on r 391 which is as follows:
"Inspection of documents referred to in pleadings or affidavits
(1) A party to a proceeding may serve on any other party in whose pleading or affidavit reference is made to a document notice that the first-mentioned party intends to inspect that document.
(2) Within 4 days after being served with a notice under subrule (1), a party is to serve on the party giving that notice a notice stating –
(a) a place and time within 7 days after service at which the documents that the party served does not object to producing may be inspected; and
(b) which of the documents that party objects to producing and the grounds for that objection."
The notice issued by Mr Jorgensen, included the following:
"The Applicant requires you to produce for inspection the following documents mentioned in the Affidavit of Melanie McKean ('MM') of 9th August 2019, all of which paragraphs, endeavoured to undermine my credibility and so, my right to make this Preliminary Discovery Application:
…
3ASIC's Records of the critical ASIC and HSBC top level meeting on 1 July 1999, referred to by MM in her para 23, where she only concedes of that pivotal meeting as '… are alleged to have held …' It is critical to my credibility here, to have it actually happened.
…
5The 3 Reports prepared by ASIC's Tasmanian Acting Regional Commissionaire, Simon Dwyer, referred to by MM in her para's 26, 27, 42 and 43, which Reports are pivotal here, to ASIC's attempted character assassination of me, in trying to persuade this Court, to discriminate against me from being entitled to the same as any other citizen's right to Preliminary Discovery. ASIC only ever provided me these 3 reports, heavily redacted."
By reason of r 50, which excludes weekends for the purpose of calculating prescribed periods of time of less than six days, ASIC had until Tuesday 20 August to respond to the notice. It responded on 19 August, objecting to production on grounds including that the documents sought under par 3 of the notice were not referred to in the affidavit and that documents, including those specified in par 5 of the notice, were the subject of the originating application seeking discovery. In particular the response of ASIC included the following:
"… paragraphs 3 and 5 of the Notice seek production of the same or similar documents sought for preliminary discovery under paragraphs 2(iii) and 2(i) respectively of the Originating Application.
Accordingly, for the reasons above and the reasons set out in Ms McKean's affidavit, our client considers that the Notice is an abuse of process and is vexatious: see, for example, Pleash v Tucker [2018] FCAFC 144 per McKerracher, Farrell and Banks-Smith JJ at [80], in which the Full Court stated that the proceedings in that case 'would have been rendered nugatory if the Liquidators were able to obtain the documents [by interlocutory application]. In such circumstances we consider the application to have been an abuse of process'."
This response led Mr Jorgensen to attempt to get around the abuse of process point by filing his interlocutory application on 26 August seeking to amend his originating application by deleting from the categories of documents sought the reports of Acting Regional Commissioner for Tasmania Mr Simon Dwyer. He then filed an interlocutory application on 26 September which included the following:
"The applicant requires you to produce for inspection the following documents mentioned in the Affidavit of Melanie McKean ('MM') of 9 August 2019, all of which paragraphs, endeavoured to undermine my credibility and so, my right to make this Preliminary Discovery Application:
1 Provided.
2 Provided.
3 ASIC's Records of the critical ASIC and HSBC top level meeting on 1 July 1999, referred to by MM in her para 23, where she only concedes of that pivotal meeting as '… are alleged to have held …' It is critical to my credibility here, to show that it actually happened.
4 Provided.
5 The 3 Reports prepared by ASIC's Tasmanian Acting Regional Commissionaire, Simon Dwyer, referred to by MM in her para's 26, 27, 42 and 43, which Reports are pivotal here, to ASIC's attempted character assassination of me, in trying to persuade this Court, to discriminate against me from being entitled to the same as any other citizen's right to Preliminary Discovery. ASIC only ever provided me these 3 reports, heavily redacted."
The paragraphs of the affidavit referred to in the interlocutory application are as follows:
"23The 2006 Proceeding related to, among other things, a meeting which officers of ASIC are alleged to have held with representatives of HSBC on or about 1 July 1999, being the subject matter of the 1999 Matter to which the Originating Application in these proceedings refers.
26The plaintiffs did not file and serve a further amended statement of claim by 30 March 2007.
27On 5 April 2007, the Court ordered that the time for the plaintiffs to apply for leave to file a further amended statement of claim be extended to 4 May 2007.
42The report referred to at [26] in the judgment of Justice Weinberg in Jorgensen v ASIC [2004] FCA 143, extracted in paragraph 32 above, was prepared by ASIC's Acting Regional Commissioner for Tasmania, Mr Simon Dwyer, and was titled 'Report of ASIC Internal Inquiry into Complaint by Alan Jorgensen' (Report).
43Justice Weinberg's judgment was in respect of an appeal from a decision of the Administrative Appeals Tribunal in Jorgensen v ASIC [2003] AATA 428 (AATA Decision), which is behind tab 20 of MM1. The following matters concerning the Report are set out in [6] – [9], [21] and [46] of the AAT Decision:
a Part 1 of that Report was dated 9 March 2000, and dealt with a complaint by Mr Jorgensen that an ASIC investigator had abused his position in or about 1999, and a further complaint by Mr Jorgensen that proceedings taken against him by ASIC had been brought for an improper purpose.
b Part 2 of that Report was dated 11 April 2000 and dealt with a complaint by Mr Jorgensen concerning the disqualification of Mr Brodie in mid-1999 and related matters.
c The final Report concluded that there was no evidence that any of ASIC's staff had acted unlawfully or abused their office or powers in relation to the investigation of Mr Jorgensen, or that enforcement action was taken for an improper purpose. It also concluded that there was no impropriety on the part of the ASIC staff regarding the entry of the name of the disqualified director onto the relevant register.
d Mr Jorgensen made a complaint to the Commonwealth Ombudsman in respect of the Report, but the Ombudsman advised Mr Jorgensen that he found that the internal investigation was conducted properly and the findings of the investigation were upheld.
e In July and August 2001, Mr Jorgensen made requests to ASIC under the FOI Act for access to documents relating to the final Report. On 7 December 2001, ASIC made a primary decision granting access to some documents or parts of documents but refusing access to other documents. On 10 December 2001, Mr Jorgensen sought internal review of the decision, and on 31 May 2002 that review was finalized, affirming the primary decision.
f On 31 July 2002, Mr Jorgensen lodged an application with the AAT for review of the decision. The application to the AAT sought a voluminous number of documents from ASIC, including draft copies of the Report. In the AAT's Reasons published on 9 May 2003, the AAT determined, in effect that Mr Jorgensen could see some of the documents he had been seeking, but only those which ASIC had in any event been prepared to make available to him. His application to be given draft copies of the Report was refused."
Paragraph 23 of the affidavit refers to a court proceeding and so no occasion arises by reason of the operation of r 391 to order inspection of the documents referred to in item 3 of the interlocutory application.
Paragraphs 26 and 27 of the affidavit do not refer to the reports of Mr Dwyer. Although pars 42 and 43 of the affidavit concern the reports of Mr Dwyer, the documents referred to in the affidavit are not the reports, but instead extracts from decisions arising from proceedings brought by Mr Jorgensen in the Administrative Appeals Tribunal and then on appeal to the Federal Court of Australia. The reports of Mr Dwyer, not being the documents referred to in the affidavit, cannot be the subject of a notice to inspect under r 391, nor the subject of an order for production under r 392.
In any event, I agree with the abuse of process point for the reason contained in ASIC's notice of objection. Although the originating application was amended by consent at the hearing on 30 October by deleting Mr Dwyer's reports from the categories of documents sought, the point remains that the method adopted by Mr Jorgensen to secure access to the documents was an abuse of process. As was the case in Pleash v Tucker [2018] FCAFC 144, where the substantive proceedings related to production of documents, court procedures are not to be manipulated by calling for production for inspection based on references in affidavits to the documents in dispute.
The interlocutory application filed by Mr Jorgensen on 26 September could not have succeeded and so the determination of ASIC's interlocutory application seeking summary dismissal of the originating application could not have been forestalled to enable inspection and an opportunity for Mr Jorgensen to cross-examine, present further evidence or make further submissions based upon an inspection.
I add, that if the interlocutory application for inspection had succeeded, I would not have determined ASIC's dismissal application until after Mr Jorgensen had been given an opportunity to inspect and to present further evidence or make further submissions following inspection.
Mr Jorgensen's interlocutory application seeking a declaration that allegations made by him and not denied are taken to be admitted
The relevant part of Mr Jorgensen's interlocutory application filed 10 October is as follows:
"That pursuant to Reg 250 Allegations not denied are admitted, the Applicant hereby seeks a Declaration from this Court that the allegations made by me in my pleadings constituted by my 2 affidavits dated 21 June 2019 and 17 July 2019, and not denied in the 3 months afforded, are deemed as admitted by the respondent."
Rule 250(1) relevantly provides:
"… an allegation of fact in a pleading which is not admitted or denied, either specifically or by implication, is taken to be admitted …"
The rule has no operation other than in the context of pleadings. Unlike affidavits, which are concerned with evidence, the role of pleadings is the identification of facts in issue. The originating application for preliminary discovery is not in the class of matters to which the rules of pleading apply.
The interlocutory application was misconceived and had to be dismissed.
ASIC's interlocutory application seeking summary dismissal of the originating application
The current proceeding is the latest edition in a plethora of applications and proceedings brought by Mr Jorgensen in numerous jurisdictions.
In par 2 of his originating application Mr Jorgensen identifies two matters in respect of which he is considering taking proceedings. The first concerns events in 1999 and the second concerns events in 2007.
In his affidavit sworn 21 June 2019 and 23 July 2019 Mr Jorgensen provides an elaboration of his prospective claim relating to the 1999 events.
Paragraph 5 of his affidavit of 21 June is as follows:
"Who was 'Pulling the Strings' Behind this Conspiracy?
Bill Shorten was the instigator who got his neighbour and long-time politician mate, Kelvin Thomson MP (Shadow Treasury Minister, which controlled ASIC) to pressure ASIC into bringing me down. Their plan was to use the 'clout' of ASIC, to incite our bankers, the HSBC, to Appoint Receivers over my Group. They would first incite ASIC by drawing a parallel between Christopher Skase and me, where at that time, Skase was in Majorca Spain, publicly, making fools of ASIC. Then once in front of the State Management of HSBC, would make damning allegations against me and with the back dating of ASIC documents, mislead the HSBC into thinking our Sole Director, Paul Brodie, had been banned as a Director by ASIC 2 months earlier, which was a lie. This back dating of ASIC's data base was a serious criminal offence, as was these ASIC officers divulging highly confidential information to our bankers, most of which were lies anyway. So under the guise of just wanting to deliver a Sect 30 Notice (obtaining docs), ASIC summoned a top level meeting with HSBC on 1st July 1999 with the absolute clear aim to get HSBC to pull the plug on my Group, and they succeeded that day when HSBC 'played ball'. ASIC figured we were taking over Castalloy Ltd, a start of the new financial year. So the day earlier ASIC officer, Cheryl Wilson unlawfully registered Brodie on ASIC's banned Director List, even though she well knew Brodie had 28 days from receipt of the ASIC delegate's reasons for his proposed banning, to seek an internal or Judicial Review. That 28 days was up on about 10th July 99. The below Minutes of that meeting were recorded by our HSBC manager, Ricky Lau and shows the flagrant violations of their strict duties to treat all information bestowed upon them from their privileged positions as confidential. Note the part that said Brodie was already banned as a Director effective as at 12 May 1999, which was a straight lie. Of course, Brodie was perfectly entitled to continue on as a Director, at least until that 10th July deadline. Typical of the ASIC officer's blatant lies, their contrasting version of that HSBC meeting, made 12th July 1999, stated; 'ASIC was restricted to what it could say.' Ricky Lau's independent version was undoubtedly, truer.
1 JULY 99
Lawrensons Metal Casting P/L
Glen Cook of ASIC came to see GH-S; J K and me with a view to obtain more information on LMC. He produced a Notice issued under section 30 of ASIC Law and requested that all information stated in the letter be delivered on 7 Jul 99.
During the discussion, Cook informed us that ASIC is investigating Alan Jorgensen and his previous business dealings. He advised that AJ transferred assets from one company to another with the aim of defying the rights of unsecured creditors in the past years. He also mentioned that in the last four years, AJ transferred his business account in different names from one bank to another. The banking relationship is normally less than one year.
Cook also mentioned that AJ was arrested by Federal Policy on 25 JUN 99 on charges relating to Corporation Law under which AJ was not allowed to manage any company in Australia. Obviously, AJ is on bail at present pending court hearing. There will be more serious charges to be laid against AJ by ASIC in due course.
We are advised that Paul Brodie has been banned by ASIC from being a director of any company with effect from 12 May 99. Under the circumstances, the company has no director at present.
Cook requested that the information listed in his letter be provided to ASIC by 7 July 99. Having obtained approval from Adrew [sic] Jackson, I will arrange with the departments concerned to make the information available before due date.
R Lau [sgd]"
In his affidavit of 23 July at par 8 Mr Jorgensen says:
"Summary of Preliminary Discovery Case
The Applicant has fought for many years trying to obtain the required evidence from ASIC via FOI, to 'join the dots' that will reveal that ASIC and it's Officers and others acted unlawfully in abusing their privileged powers when they deliberately set out to incite our Company's bankers, the HSBC, into 'pulling the plug', and so end our takeover of Castalloy Ltd, Australia's largest die Caster. This was ASIC's crystal clear, mission. They did this evil act, by fraudulently back dating information contained on ASIC's public data base, to mislead the HSBC into thinking that our Company's sole Director, Paul Brodie, had been banned on 12 May 1999, so that our Company was operating without a Director. ASIC we4re aware that Brodie had signed some HSBC security documents, on 12th June 1999, so in stating to HSBC State Management that Brodie was banned as at 12 May 1999 and that such signing of HSBC's security documents was therefore fraud, (in addition to calling me being a crook to my bankers), they 'conned' the HSBC into Appointing Receivers over my Group the same day, that ASIC summoned this top level meeting (under guise of just dropping off a Sect 30 Notice). ASIC then compounded their conspiracy to defraud us, by then 'doctoring' the paper trail to avoid being found out. If that wasn't enough, they then pressured the young Tasmanian Regional Commissionaire, Simon Dwyer, who was appointed by the ASIC hierarchy to formally investigate my complaint, into reversing his initial Guilty Finding Report, to a Not Guilty Report."
Proceedings in relation to the 1999 events were instituted in the Supreme Court of Victoria in 2005. Mr Jorgensen was one of the plaintiffs and ASIC was the defendant. Set out below are parts of the statement of claim, dated 7 August 2006, which was prepared by a solicitor, and gives a more concise statement of the impugned conduct than can be discerned from Mr Jorgensen's affidavits:
"IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No 6959 of 2005
BETWEEN:TEKSID PTY LTD (ACN 004 359 979) and
MIJAC INVESTMENTS PTY LTD (ACN 089 820 280)
ALAN BRADLEY JORGENSEN
Plaintiffs
andAUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (ABN 86768615)
Defendant
STATEMENT OF CLAIM
1 The firstnamed plaintiff is:
a) a company duly incorporated according to law;
b) the trustee of the Townsend & Parker Unit Trust ('the Trust'); and
c) the successor to Lawson Metal Casting Pty Ltd (ACN 070 242 189) ('LMC') as trustee of the Trust.
2 The beneficial unit holders of the Trust were Mantonella Pty Ltd (ACN 069 012 531) in its capacity as trustee of the L and P Jorgensen Family Trust; Pertone Pty Ltd (ACN 067 730 143); Janine Therese Brodie and Jim Nedelkos;
4The thirdnamed plaintiff is and was at all material times:
a)a beneficiary of the L and P Jorgensen Family Trust;
10In or about March and April 1999, LMC as trustee of the Trust entered into an agreement ('facility agreement'), for the provision of finance facilities with HSBC Bank Australia Limited ACN 006 434 162 of 99 William Street, Melbourne ('HSBC').
11As security for the repayment of the facility agreement HSBC took the following securities:
a) a fixed and floating charge over LMC's assets and undertaking ('Debenture Charge')
d)a guarantee for $1,000,000 by the thirdnamed plaintiff.
16On or about 1 July 1999 Graham Ashworth, Glen Cook and Ailsa Wilson for and on behalf of the defendant ('the Officers') had a meeting with Ricky Lau, John Kerr and Guy Harvey-Samuel of HSBC ('meeting') and made statements against LMC and the thirdnamed plaintiff to the effect that:
a)the defendant was investigating the thirdnamed plaintiff and his previous business dealings;
b)the thirdnamed plaintiff had in past years transferred assets from one company to another with the aim of denying the rights of unsecured creditors;
c)the thirdnamed plaintiff had in the last 4 years transferred his business account in different names from one bank to another with the banking relationship being normally less than one year;
d)the thirdnamed plaintiff was arrested by Federal Police on 25 June 1999 on charges relating to the Corporations Law under which the thirdnamed plaintiff was not allowed to manage a company in Australia;
e)the thirdnamed plaintiff was on bail pending a court hearing;
f)more serious charges were pending against the thirdnamed plaintiff;
g)Paul Brodie had been banned from being a director of any company with effect from 12 May 1999;
h)LMC had no director;
i)LMC was insolvent and in financial trouble;
j)the financial statements of the company were not legitimate "(the statements").
17Paragraphs (b), (c), (d), (e), (f), (g), (h), (i) and (j) of the statements were false or misleading and were published maliciously and in breach of defendant's obligations of due care and diligence referred to in paragraph 6 and confidentiality referred to in paragraph 7.
Particulars of falsity
At the time of the meeting:
a)the thirdnamed plaintiff had not in the past years transferred assets from one company to another with the aim of denying the rights of unsecured creditors;
b)the thirdnamed plaintiff had not in the past 4 years transferred his business account in different names from one bank to another with the banking relationship being normally less than one year;
c)although the thirdnamed plaintiff had been arrested by Federal Police on charges, those charges were vigorously dispute by the thirdnamed plaintiff;
d)no further charges were pending or laid against the thirdnamed plaintiff;
e)although Paul Brodie had been banned by the defendant from being a director of LMC pursuant to the Notice, the appeal process to contest the Prohibition did not expire until 7 July 1999;
f)Paul Brodie continued to be a director of LMC until the expiry of the appeal process referred to in the preceding paragraph;
g)LMC was solvent and not in financial trouble.
h)LMC's accounts for year ending 30 June 1998 were legitimate and had been audited.
Particulars of Malice
i) The plaintiffs refer to and repeat paragraphs a) to h) above.
j)At no time from the date of the service of the Notice did the defendant request or advise LMC, Paul Brodie, the thirdnamed plaintiff or any of LMC's shareholders that LMC should appoint a new director in place of Paul Brodie.
k)In about mid June 1999 officers and agents on behalf of the defendant made statements to LMC's solicitor, Tim McHenry, to the effect that:
iPaul Brodie could continue to act as a director of LMC until the appeal period to set aside the Notice had expired on 7 July 1999; and
iinothing would happen with respect to LMC until the appeal period to set aside the Notice had expired on 7 July 1999.
i)On about 30 June 1999, both prior to the meeting and the expiry of the appeal period for Paul Brodie to set aside the Notice, an officer of the defendant made an entry on its compute database with respect to LMC that Paul Brodie had been banned as a director of LMC from 12 May 1999.
m)At no time during the meeting did the Officers inform HSBC of the matters referred to in paragraphs j) and k) above or that it was an option for LMC to appoint a new director prior to the expiry of the appeal process.
n)One of the purposes of the meeting was for the Officers to serve a notice on HSBC to produce documents under s 30 of the Australian and Securities and Investment Commissions Act that were to be produced by 7 July 1999.
o)In absence of good faith the officers recommended, sought and requested HSBC appoint a receiver and manager to LMC.
18On 2 July 1999, without prior notice to LMC and without giving LMC a reasonable or any opportunity to repay the facilities and in breach of the terms of the facility agreement and the debenture charge, HSBC appointed or purported to appoint Malcolm John Orders ('the HSBC receiver') as receiver and manager under the debenture charge over all of the assets and undertaking of LMC.
33By reason of the matters aforesaid the thirdnamed plaintiff has suffered loss and damage.
The plaintiffs claims:
1A declaration that the defendant has acted in breach of its duties.
2Damages."
There were some aspects of the statement of claim which did not comply with pleading rules. An amended statement of claim filed 13 October 2006 was struck out by Justice Hargrave on 14 March 2007. By 25 May 2007 there was still no satisfactory pleading. There was no suggestion by counsel for the plaintiff that further documentation was required from the defendant to formulate a satisfactory claim. On 25 May Justice Hargrave made some orders by consent which included an order dismissing the proceedings in the event that the plaintiffs had not delivered a proposed further amended statement of claim and a summons seeking leave to amend by certain dates. The time was extended by a consent order but there was no compliance within the required time and the action came to an end.
It is to be noted that the proceeding in the Supreme Court of Victoria was instituted after Justice Weinberg had dealt with an appeal by Mr Jorgensen from a decision of the Administrative Appeals Tribunal in relation to a request lodged with ASIC by Mr Jorgensen for access to numerous documents under the Freedom of Information Act. See Jorgensen v ASIC [2004] FCA 143. An appeal to the Full Court was summarily dismissed by Black CJ as a result of a failure by Mr Jorgensen to comply with an order. Jorgensen v ASIC [2004] FCA 990.
In 2016 Mr Jorgensen attempted to re-litigate his complaints about the 1999 events in the Supreme Court of New South Wales. The proceeding was summarily dismissed with costs by Stevenson J. Jorgensen v Shorten (No 2) [2016] NSWSC 1761.
It is apparent from his originating application that Mr Jorgensen wishes to restart the whole process of requests for documents followed by a damages claim in respect of the 1999 events when the same claim, or a similar claims, for documents had been exhausted in the Federal Court and the same claim, or a similar claim, for damages was dismissed in the Supreme Court of Victoria and dismissed in fresh proceedings in the Supreme Court of New South Wales. Mr Jorgensen has not suggested that the current claim for access to documents differs in any material respect from his previous unsuccessful attempts to obtain the documentation.
I now turn to the 2007 events referred to in par 2 of the originating application. These are described in Mr Jorgensen's affidavit of 21 June 2019 at par 13 where he says:
"ASIC Conspires and Obtains Ex Parte Orders Blatantly Lying to the Judge
Then finally we need to see the Brisbane TRAC minutes to see why ASIC in Brisbane, went and destroyed my brand new Water Tank business in Brisbane, that had made Sales of $9M in first 3 months of starting and netted $5M profit, importing from China, a unique 'half-moon' water tank, that I invented that I had designed in the USA at a cost of US$52,000. I sold 5,000 of these water tanks and made $1,000 net profit on each and had $1,000,000 cash in the bank and was debt free. Yet ASIC in their despicable act to try and cut off my cash flow, which was funding a mega million court action against ASIC in Melbourne, went and obtained Ex Parte Orders on a late Friday afternoon, to freeze all my bank accounts and my passport and wife's too. Their FOI revealed they at same time sent out over 100 press releases to try and ruin my name and booming business. They conned the judge into granting those Orders because they 'lied through their teeth' and that they were ASIC. They charged me with SUSPECTED TRADING WHILST INSOLVENT (ASIC's usual tactic when they have nothing on you). Let's recap: $1,000,000 cash in bank, $5M paper profit in 3 months trading from a start-up business, debt free and virtually no Creditors. Below are 2 pics of my revolutionary 'half-moon' water tanks that should have won me many inventive awards. But ASIC again just decided to 'terminate' another of my businesses, so that I did not have the money to continue on suing them in Melbourne for them destroying my die casting business. Surely, the Government cannot be allowed to be involved in such evil practices."
The 2007 complaint originated with a freezing order obtained by ASIC in the Supreme Court of Queensland in November 2007. The order was made against several parties including Mr Jorgensen and Jim's Water Tanks Pty Ltd. There followed an argument as to costs. ASIC v Jorgensen [2008] QSC 233. Mr Jorgensen was ordered by Chief Justice de Jersey to pay the costs. He appealed to the Court of Appeal but his notice of appeal was struck out on the basis that the appeal was incompetent. ASIC v Jorgenson [2009] QCA 20. Mr Jorgensen was unsuccessful in an attempt to obtain special leave to appeal. Jorgensen v ASIC [2009] HCA TRANS 188.
A claim against ASIC in respect of the 2007 events relating to Jim's Water Tanks Pty Ltd was included in the 2016 New South Wales proceeding to which I have referred. It was summarily dismissed by Stevenson J in Jorgensen v Shorten (No 2) [2016] NSWSC 1761 who said at [38] – [47] and [63] – [65]:
"38 The pleading then directs attention to events said to have occurred between August 2007 and February 2008.
39 Thus, in par 11 it is alleged that, between August 2007 and February 2008 ASIC 'embarked on a similar campaign to destroy' the third plaintiff (Jim’s Water Tanks) and 'continued on with its conspiracy' to put Mr Jorgensen out of business “without any warning or notice”.
40 Again, no facts are alleged that could possibly give rise to such a rolled up allegation.
41 Although this is not stated in the statement of claim, the reference is, evidently, to the commencement by ASIC on 28 November 2007 of proceedings against Mr Jorgensen and Jim’s Water Tanks in the Supreme Court of QLD.
42 The allegation in par 10 appears to be allied to that in par 12 which asserts that:
'The new ASIC CEO later ordered that ASIC withdraw after losing a case against Jorgensen for contempt.'
43 Those circumstances in which ASIC 'withdrew' from the Supreme Court of QLD proceedings are dealt with in a judgment of de Jersey CJ in Australian Securities and Investments Commission v Jorgensen [2008] QSC 233.
44 His Honour did record that on 22 September 2008 ASIC indicated that it wished to discontinue the proceedings but concluded that ASIC had acted reasonably in bringing the proceedings and ordered that Mr Jorgensen pay the costs of the proceedings.
45 The pleading concludes by seeking a declaration that Messrs Cook and Ashworth have 'breached their statutory duties in unlawfully setting out to destroy' the plaintiffs’ businesses and that ASIC has 'aided and abetted, or alternatively, condoned' the 'unlawful' actions of Messrs Cook and Ashworth.
46 Again, the basis upon which such a declaration is sought is simply not revealed.
47 The pleading is embarrassing and must be struck out.
Limitation
63 The second problem is that these proceedings are clearly brought out of time.
64 The damage alleged to have been suffered as a result of the alleged fact that the Castalloy takeover did not take place (leaving aside who may have suffered the damage) must have occurred in 1999; 17 years ago.
65 The events of which Jim’s Water Tanks complains (see [33ff] above) are alleged to have taken place between August 2007 and February 2008; well over six years ago."
ASIC's primary submission is that the originating application for preliminary discovery is "an abuse of the Court's processes (or is otherwise frivolous or vexatious) and, accordingly, it should be dismissed, stayed or struck-out."
In Walton v Gardiner [1993] HCA 9, (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said at [23]:
"23 The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. …Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (See, eg, Reichel v Magrath (1889) 14 App Cas 665, at p 668; Connelly v DPP (1964) AC 1254, at pp 1361-1362.) The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ([1981] UKHL 13; (1982) AC 529, at p 536) as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'."
The prospective actions identified in par 2 of the originating application have been the subject of proceedings in Victoria and New South Wales with the claims dismissed. The events complained of occurred, respectively, 20 years ago and 12 years ago. ASIC claims that the costs order made against Mr Jorgensen in its favour in the New South Wales proceeding remains unsatisfied and Mr Jorgensen has not disputed this in his affidavit or submissions. Mr Jorgensen has said in his affidavit of 21 June 2019 that in the "last 3 years alone, I have made over 12 FOI Applications". To fail to intervene and bring the current proceeding to an early end in these circumstances would, in my opinion, be unfair and oppressive to ASIC and likely to bring the administration of justice into disrepute. Mr Jorgensen's obsession with his complaints about ASIC has reached the point of indefensible harassment. Accordingly, I made an order dismissing the originating application on 20 November.
For completeness I mention submissions made on behalf of ASIC that claims for damages brought by Mr Jorgensen now would be time barred under limitation of actions legislation and in any event, in view of Mr Jorgensen's bankruptcy in 2011, his causes of action if he has any, have vested in his former trustee in bankruptcy. Mr Jorgensen argued that he could get around the limitation point on the basis that ASIC had concealed the causes of action from him and that he could get around the bankruptcy point on the basis that his prospective claims against ASIC would be brought in his capacity as a trustee and were not personal claims divested in the bankruptcy. I did not have sufficient information to conclude at this stage with certainty that the limitation and bankruptcy points were insurmountable and so do not include these matters in my reasons for dismissing the originating application. There was also a submission that the proposed actions would necessarily involve plaintiffs in addition to Mr Jorgensen and that they were not applicants named in the originating application. I was not persuaded that this point was fatal to relief being granted and so do not include this matter in my reasons for dismissal.
Orders made
It is for these reasons that I made the following orders on 20 November:
1 The applicant's adjournment application is refused.
2 I direct that the applicant Mr Jorgensen may make submissions by audio link from Vietnam.
3 The applicant's interlocutory application filed 26 September 2019 is dismissed.
4 The applicant's interlocutory application filed 10 October 2019 is dismissed.
5 The originating application is dismissed.
6 Questions as to the costs of the respondent's interlocutory application filed 9 August 2019 and the applicant's interlocutory applications filed 26 August 2019, 26 September 2019 and 10 October 2019 stand adjourned for hearing after the publication to the parties of my reasons for decision and any applications for costs are to be made within 14 days of the publication of my reasons to the parties and in the absence of any applications for costs the costs of the various applications are in the cause of the originating application.
7 The time for any appeal against my order refusing the applicant's adjournment application today my orders dismissing the applicant's interlocutory applications filed 26 September 2019 and 10 October 2019 and my order granting the respondent's interlocutory application filed 9 August 2019 is extended pursuant to rule 52 of the Supreme Court Rules to a date being 21 days following the publication of my written reasons to the parties.
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