Jorgensen v Jorgensen

Case [2019] FCA 1742

FEDERAL COURT OF AUSTRALIA

Jorgensen v Jorgensen [2019] FCA 1742

File number(s): QUD 176 of 2019
Judge(s): COLLIER J
Date of judgment: 21 October 2019
Date of publication of reasons: 23 October 2019
Catchwords: PRACTICE AND PROCEDURE – refusal to order that interlocutory application lodged with Registry be accepted for filing where previous orders restricted filing of new application until determination of current proceeding or further Order – current substantive proceedings concern application under s 37AO Federal Court of Australia Act 1976 (Cth) – whether issues raised in interlocutory application relevant to substantive issues in current s37AO proceedings – principles of case management – refusal of order in course of case management hearing – parties given opportunity to make submissions – where previous application raising similar substantive issues was discontinued – principles relevant to s 37AO – “liberty to apply” – cross-examination of lawyer refused – application to vacate trial date refused
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Civil Dispute Resolution Act 2011 (Cth)

Civil Proceedings Act 2011 (Qld) s 25(1)

Corporations Act 2001 (Cth) ss 241, 247A

Federal Court of Australia Act 1976 (Cth) ss 37AM, 37AO, 37M

Federal Court Rules 2011 (Cth) rr 1.40, 9.05, 26.12

Trusts Act 1973 (Qld) s 8

Vexatious Proceedings Act 2005 (Qld) s 6(2)

Cases cited:

Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Attorney General (NSW) v Gargen [2010] NSWSC 1192

Attorney-General (NSW) v Chan [2011] NSWSC 1315

Attorney-General (NSW) v Wilson [2010] NSWSC 1008

Attorney-General v Wentworth (1988) 14 NSWLR 481

Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535

Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 Starke, Crockett and Beach JJ)

Garrett v Commissioner of Taxation [2015] FCA 117; (2015) 147 ALD 342

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

InRe Boaler [1915] 1 KB 21; [1914-15] All ER Rep 1022

Johnston v Judge Middleton [2019] FCA 966

Jones v Cusack (1992) 109 ALR 313; (1992) 66 ALJR 815

Jorgensen v Jorgensen & Anor [2016] QSC 235

Jorgensen v Jorgensen & Ors [2016] QSC 193

Mathews v State of Queensland [2015] FCA 1488

Mbuzi v AGL Sales Pty Ltd [2018] FCAFC 226

Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927

Mulhern v Morgan [2017] FCA 1183

Re De W Kennedy (Finance) Pty Ltd v Ley (unreported — Supreme Court of New South Wales, Holland J — 29 March 1978)

Spry v Kennon [2008] HCA 56; (2008) 238 CLR 366

Date of hearing: 21 October 2019
Registry: Queensland
Division: General Division
National Practice Area: Other Federal Jurisdiction
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: Mr R Ivessa
Solicitor for the Applicant: Miller Harris Lawyers
Counsel for the First Respondent: The First Respondent appeared in person

ORDERS

QUD 176 of 2019
BETWEEN:

BRIAN LAURENCE JORGENSEN

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AGLC
Jorgensen v Jorgensen [2019] FCA 1742
Case
[2019] FCA 1742
Decision Date

CaseChat Overview and Summary

The matter of Jorgensen v Jorgensen involved a protracted dispute between twin brothers, Mr Brian Jorgensen and Mr Alan Jorgensen, who had been engaged in multiple legal proceedings against one another. The current case before the Federal Court of Australia centred on an interlocutory application lodged by Mr Alan Jorgensen, which was to be heard as part of an ongoing substantive proceeding under section 37AO of the Federal Court of Australia Act 1976. The court was required to decide whether the interlocutory application, which raised issues similar to those in the substantive proceeding, should be accepted for filing given that previous orders restricted the filing of new applications until the determination of the current proceeding. Additionally, the court had to consider the principles of case management in its decision and whether the refusal to accept the interlocutory application for filing was appropriate in the context of the case management principles.

In delivering its decision, the court examined the principles of case management and the specific circumstances of the case, including the timing of the interlocutory application and the potential strategic motives behind it. The court noted that the interlocutory application was filed despite previous orders restricting the filing of new applications and that there was a lack of particularisation regarding any alleged non-disclosure. Furthermore, the trial was scheduled to commence in less than two weeks. Given these factors, the court concluded that it was inappropriate to accept the interlocutory application for filing and that the refusal to accept the application was in line with the principles of case management. Consequently, the court made orders refusing the acceptance of the interlocutory application for filing, denying the cross-examination of a lawyer, and rejecting the oral application to vacate the trial date.

The final orders of the court were as follows: the interlocutory application lodged by Mr Alan Bradley Jorgensen with the Federal Court of Australia Registry on 16 September 2019 was not accepted for filing; Mr Timothy McGrath was not to be cross-examined at the hearing on 6 November 2019; and the oral application for the vacation of the hearing on 6 November 2019 was refused. These orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The Interlocutory Application lodged by Mr Alan Bradley Jorgensen with the Federal Court of Australia Registry on 16 September 2019 not be accepted for filing.

2. Mr Timothy McGrath not be cross-examined at the Hearing on 6 November 2019.

3. The oral application for vacation of the Hearing on 6 November 2019 be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I now publish written reasons for these Orders.BACKGROUND This proceeding is part of a long running dispute between Mr Brian Jorgensen and Mr Alan Jorgensen, who are twin brothers. Mr Alan Jorgensen and related parties have previously brought nine overlapping claims in Courts in Queensland and New South Wales, and in the Federal Court of Australia. All proceedings essentially concerned allegations by Mr Alan Jorgensen of breach of fiduciary duty and fraud on the part of Mr Brian Jorgensen and others, in respect of the transfer in 1992 of units in the Rainbow Motor Inn Unit Trust held by the trustee of that trust (which I understand was Grancroft Pty Ltd (Grancroft)), to a company controlled by Mr Brian Jorgensen, as well as the transfer of 9 shares in Grancroft to Mr Brian Jorgensen. On 28 April 2016 in Jorgensen v Jorgensen & Ors [2016] QSC 193 Justice Daubney in the Supreme Court of Queensland ordered as follows: 1.The applicant Brian Laurence Jorgensen has leave to apply for a vexatious proceedings order under the Vexatious Proceedings Act 2005.2.Pursuant to s 6(2) of the Vexatious Proceedings Act 2005, it is ordered that the first respondent Alan Jorgensen, or any entity controlled by the first respondent (including each of the second respondent and the third respondent) shall not without the leave of the Court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.3.The respondents shall pay the applicant’s standard costs of and incidental to the application. Subsequently in Jorgensen v Jorgensen [2016] QSC 235 on 30 September 2016, Justice Henry in the Supreme Court of Queensland ordered as follows:1.pursuant to s 25(1) of the Civil Proceedings Act 2011, proceeding D180/2016 in the Townsville Registry of the District Court of Queensland is transferred to the Cairns Registry of the Supreme Court of Queensland;2.proceedings D180/2016 is permanently stayed;3.Trudy Jorgensen shall not, without leave of the court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust; and4.the Respondents pay the Applicants costs of this application and of proceeding D180/2016 to be assessed on the standard basis. Ms Trudy Jorgensen (who I understand from an affidavit of Mr Brian Jorgensen in these proceedings filed 8 March 2019, is the daughter of Mr Alan Jorgensen) commenced proceedings in the Federal Court in a separate matter, NSD 83 of 2019, seeking relief against Mr Justin Cadman and Mrs Patricia Jorgensen. This relief was similar to the relief sought by Mr Alan Jorgensen in his proceedings in this Court in NSD 756 of 2019, to which I will refer later in this judgment. On 22 March 2019 the docket Judge in NSD 83 of 2019, Justice Gleeson, ordered the joinder of Grancroft to the proceedings in NSD 83 of 2019. However I note that on the same date her Honour also granted leave to Ms Trudy Jorgensen to electronically file a notice of discontinuance of the proceedings in NSD 83 of 2019 pursuant to r 26.12 of the Federal Court Rules 2011 (Cth).The current originating application

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, and in light of the principles of case management I have articulated, it was inappropriate to vacate the trial in circumstances where:·My case management Orders of 4 July 2019 required filing and service of relevant material by the applicant by 9 October 2019;·No issue had been made of any alleged non-compliance on the part of the applicant by Mr Alan Jorgensen prior to the case management hearing of 21 October 2019, and then only in the course of oral submissions by him;·There was an absence of particularisation by Mr Alan Jorgensen of alleged non-disclosure; ·The trial is little more than 2 weeks away; and·I consider that Mr Alan Jorgensen’s oral application for vacation of the trial may well be a strategic response by him to my refusal to order acceptance for filing of his interlocutory application (and accordingly, delay the hearing of the s 37AO application).CONCLUSION It was for these reasons that, on 21 October 2019, I made the Orders of that date in these proceedings.

Ratio Decidendi

Legal Principle Established

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