Jorgensen v Jorgensen (No 3)

Case [2021] FCA 201


FEDERAL COURT OF AUSTRALIA

Jorgensen v Jorgensen (No 3) [2021] FCA 201  

File number: QUD 176 of 2019
Judgment of: LOGAN J
Date of judgment: 11 March 2021
Catchwords: PRACTICE AND PROCEDURE – application for vexatious proceedings order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) – where Supreme Court of Queensland originally made security for costs order – where respondent did no prove costs order procured by fraud – where hearing continued on basis of oral and written submissions – whether respondent has frequently instituted or conducted vexatious proceedings to subvert the costs order – where first respondent instigated similar litigation by entities controlled by him and his proxies – whether other respondents should be subject to same vexatious proceedings order – application for order pursuant to s 23 and s 37AO(2)(c) of the Federal Court of Australia Act 1976 (Cth) to restrain respondent who had not instituted or conducted proceedings – where first respondent had power of appointment under a trust – whether first respondent could appear for the other respondents – where first respondent allowed to act as McKenzie friend – application by respondent for recusal on basis of bias – recusal application refused – vexatious proceedings order made
Legislation:

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth)

Evidence Act 1995 (Cth) s 140

Federal Court of Australia Act 1976 (Cth) ss 4, 23, 31A, 37AO

Federal Court Rules 2011 (Cth) r 1.34, r 4.01, r 15, r 15.02

Trusts Act 1973 (Qld)

Vexatious Proceedings Act 2005 (Qld)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s 5

Criminal Code 1899 (Qld) s 120

Vexatious Actions Act 1896 (UK)

Cases cited:

Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202

Briginshaw v Briginshaw (1938) 60 CLR 336

Damjanovic v Maley (2002) 55 NSWLR 149

Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 147 ACSR 227

Fuller v Toms (2015) 234 FCR 535

Garrett v Federal Commissioner of Taxation (2015) 147 ALD 342

Henriksens Rederi A/S v THZ Rolinpex; The Brede [1973] 3 WLR 556

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

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Jorgensen (as trustee for Jorgensen Family Trust) v Grancroft Pty Ltd [2015] NSWSC 1723

Jorgensen v Australian Securities & Investments Commission [2004] FCA 143

Jorgensen v Jorgensen [2016] QSC 193

Jorgensen v Jorgensen [2016] QSC 235

Jorgensen v Jorgensen [2017] QCA 110

Jorgensen v Jorgensen [2019] FCA 1742

Lindon v Commonwealth (No 2) (1996) 70 ALJR 541

Mantonella Pty Ltd v Grancroft Pty Ltd & Ors [2015] QSC 191

McKenzie v McKenzie [1971] P 33

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Rana v Commonwealth of Australia [2008] FCA 907

Rogers v The Queen (1994) 181 CLR 251

Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (unreported, Sup Ct, NSW, Mahoney AP, Powell JA, O'Keefe AJA, 6 September 1994)

Worldwide Enterprises Pty Ltd v…

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Details
AGLC
Jorgensen v Jorgensen (No 3) [2021] FCA 201
Case
[2021] FCA 201
Decision Date

CaseChat Overview and Summary

The case of Jorgensen v Jorgensen (No 3) was heard by the Federal Court of Australia. The applicant sought a vexatious proceedings order against several respondents in relation to ongoing litigation concerning the Rainbow Motor Inn Unit Trust. The Supreme Court of Queensland had previously made a security for costs order against the first respondent, who was found to have frequently instituted or conducted vexatious proceedings to subvert the costs order. The first respondent had instigated similar litigation through entities controlled by him and his proxies. The applicant sought an order under section 37AO of the Federal Court of Australia Act 1976 (Cth) to restrain the first respondent from instituting or causing to be instituted any proceedings in the Court with respect to the trust, including via any entity controlled by him or any person acting in concert with him. The applicant also sought an order under section 37AO(2)(c) of the Act to restrain the first respondent from exercising his power of appointment as Appointor under the terms of a deed dated 1 July 1985, to remove or appoint any person, individual or corporate, trustee for the purpose of instituting or conducting any proceedings in the Court with respect to the trust. The applicant further sought orders against other respondents who were involved in the litigation. The first respondent was allowed to act as a McKenzie friend, and an application for recusal on the basis of bias was refused. A vexatious proceedings order was made against the first, third, fourth, and sixth respondents, and the fifth respondent was restrained from instituting proceedings without leave of the Court.

The legal issues before the court included whether the first respondent had frequently instituted or conducted vexatious proceedings to subvert the costs order, whether the other respondents should be subject to the same vexatious proceedings order, and whether the first respondent could appear for the other respondents. The court found that the first respondent had frequently instituted or conducted vexatious proceedings to subvert the costs order, and that the other respondents should be subject to the same vexatious proceedings order. The court also found that the first respondent could appear for the other respondents. The court exercised its discretion under section 37AO of the Federal Court of Australia Act 1976 (Cth) to make the vexatious proceedings orders, and restrained the first respondent from exercising his power of appointment as Appointor under the terms of the deed dated 1 July 1985. The court also restrained the fifth respondent from instituting proceedings without leave of the Court. The court ordered that the first respondent pay the applicant's costs of and incidental to the proceeding. The court made further orders regarding the costs of the proceeding against the other respondents.

Orders

Orders of the court

1. Pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), the first respondent be prohibited, from instituting, or causing to be instituted, either directly or indirectly, including via any entity controlled by him or any person acting in concert with him, any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

2. Without limiting the generality of the operation of order 1, the first respondent be prohibited from exercising his power of appointment as Appointor under the terms of a deed dated 1 July 1985 pursuant to which a trust known as the Jorgensen Family Trust was established so as to remove or appoint any person, individual or corporate, trustee for the purpose of instituting or conducting any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

3. Pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), the third respondent be prohibited, from instituting, or causing to be instituted, either directly or indirectly, any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

4. Pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), the fourth respondent be prohibited, from instituting, or causing to be instituted, either directly or indirectly, any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

5. Pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), the sixth respondent be prohibited, from instituting, or causing to be instituted, either directly or indirectly, including via any entity controlled by her or any person acting in concert with her, any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

6. The fifth respondent not without the leave of the Court first had and obtained, institute, or cause to be instituted, any proceedings in the Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.

7. The first respondent pay the applicant’s costs of and incidental to the proceeding, including reserved costs, if any, to be fixed by a registrar if not agreed.

8. As to other respondents:

(a) The applicant file such application for costs, if any, as he may be advised within 7 days, together with an outline of submissions of not more than four pages, and serve the same forthwith on such of those respondents as against which or whom an order for costs is sought.

(b) Such other respondent party against whom an order for costs is sought file and serve such outline of submissions of not more than four pages in relation to the costs application as it, or she may be advised.

(c) In the event that no application for costs is made against one or any of the other respondents, there be no order as to costs against that other respondent party.

(d) Costs be reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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