Jorgensen v Wilson (No 2)
[2023] ACTSC 40
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jorgensen v Wilson (No 2) |
Citation: | [2023] ACTSC 40 |
Hearing Dates: | 13 and 24 February 2023 |
DecisionDate: | 10 March 2023 |
Before: | Mossop J |
Decision: | See [71] |
Catchwords: | PRACTICE AND PROCEDURE – ABUSE OF PROCESSS – Application to strike out or stay proceedings as an abuse of process or otherwise as being frivolous, scandalous, unnecessary, vexatious or disclosing no reasonable cause of action – application to stay proceedings pending payment of costs in earlier proceedings – where plaintiff sought to discontinue proceedings – proceedings lack merit and seek to relitigate matters subject to previous proceedings – proceedings amount to abuse of process – proceedings permanently stayed – costs for the defendants on a solicitor and client basis PRACTICE AND PROCEDURE – VEXATIOUS LITIGANTS – Where defendants seek declaration that the plaintiff be declared a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT) – whether plaintiff has frequently instituted or conducted vexatious proceedings – whether plaintiff has sought to relitigate matters already decided – plaintiff declared a vexatious litigant |
Legislation Cited: | Australian Securities and Investments Commission Act 1989 (Cth), s 30 Australian Securities and Investments Commission Act 2001 (Cth) Supreme Court Act 1933 (ACT), s 67A |
Cases Cited: | Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 Ezekiel-Hart v Reis [2018] ACTSC 264 Williams v Spautz (1992) 174 CLR 509 |
Parties: | Alan Jorgensen ( Plaintiff) Cheryl Wilson ( First Defendant) Graham Ashworth ( Second Defendant) Ailsa Wilson ( Third Defendant) Graeme Donald ( Fourth Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) J R Clarke SC with T Kane ( Defendants) |
| Solicitors Self-represented ( Plaintiff) Ashurst ( Defendants) | |
File Number: | SC 165 of 2022 |
MOSSOP J:
Introduction
The plaintiff, Alan Bradley Jorgensen, has commenced proceedings against four people who he claims were, in 1999, officers of the Australian Securities and Investments Commission (ASIC). The proceedings were commenced by originating application filed on 25 May 2022. The originating application seeks six declarations and an order that ASIC provide third-party discovery of certain matters. The grounds for the application are stated in six paragraphs of the originating application. As the matter was commenced by originating application, no statement of claim was filed with it. The application was supported by an affidavit of Mr Jorgensen dated 30 March 2022.
By application in proceeding dated 19 August 2022, the four defendants have applied:
(a)to strike out or stay the proceedings on the basis that they are an abuse of the court’s process, or as otherwise being frivolous, scandalous, unnecessary, vexatious and/or disclosing no reasonable cause of action;
(b)to stay the proceedings pursuant to r 1169 of the Court Procedures Rules2006 (ACT) (the Rules) pending payment of costs incurred by the defendants in earlier proceedings in the Supreme Court that were discontinued by Mr Jorgensen;
(c)for a declaration under s 67A of the Supreme Court Act 1933 (ACT) that Mr Jorgensen is a vexatious litigant either generally or in respect of particular identified classes of matters; and
(d)for an order that Mr Jorgensen pay the defendants’ costs of the proceedings and the application on an indemnity basis.
The nature of the claim made by Mr Jorgensen
The terms of the declarations which are sought and the grounds of the application as articulated in the originating application regularly incorporate conclusory language such as “conspired”, “fraud”, “defraud”, “unlawfully incited”. Particulars which would explain the content of these conclusory words are not provided.
A summary of the factual basis for the complaint as articulated in the originating application is as follows. As at 1999 a Mr Paul Brodie was a director of a company Lawrenson Metal Casting Pty Ltd (LMC). Mr Brodie was banned from being a director pursuant to s 600(3) of the Corporations Law (Cth). The banning decision was recorded on ASIC’s public database as having commenced on 12 May 1999. On 1 July 1999 there was a meeting between the first, second and third defendants and representatives of the HSBC bank. A notice under s 30 of the Australian Securities and Investments Commission Act 1989 (Cth) requiring the provision of information was provided at that meeting. Certain statements were made about the conduct of Mr Jorgensen. The representatives of the bank were told that Mr Brodie had been banned by ASIC from being a director of any company with effect from 12 May 1999. Sometime after this meeting receivers were appointed by the bank to LMC.
The complaint of Mr Jorgensen was that the ASIC officers had wrongly backdated the banning of Mr Brodie in circumstances where representations had been made that the banning would not take effect until a later date and that this was done in order to deceive the bank into thinking that Mr Brodie had been acting as a director when he was not entitled to.
The factual basis for the present claim appears to be the same as that which was articulated before Weinberg J in proceedings relating to access to documents under the Freedom of Information Act 1982 (Cth) in 2004: Jorgensen vAustralian Securities & Investments Commission [2004] FCA 143. The summary of the factual position as described by Mr Jorgensen to Weinberg J provides a useful summary of the factual background to the present claims.
25.The applicant began by noting that, in January 1996, ASIC commenced an investigation into his affairs. In November 1998, it banned him from acting as a company director for three years. Subsequently, in December 2000, he pleaded guilty, in the Victorian County Court, to several charges under ss 232(6) and 1317FA of the Corporations Law. The proceedings related to allegations that the applicant had made improper use of his position as an officer of Townsend and Parker Pty Ltd (Riton Holdings Pty Ltd (in liq)) (ACN 069 470 891) and of Lawrenson Metal Casting Pty Ltd (formerly Townsend and Parker Holdings Pty Ltd (ACN 070 242 189), and also that he had falsely claimed to be Mr Paul Brodie, who was in fact his brother-in-law and a director of those companies, in order to gain a financial advantage. On 15 December 2000, he was sentenced to a term of 18 months’ imprisonment. That term was wholly suspended.
26.In July 1999, the applicant wrote to the Victorian Regional Commissioner of ASIC to complain about the conduct of ASIC’s staff in relation to its investigation into his affairs. ASIC undertook an internal investigation into the applicant’s complaints and, as noted earlier, Mr Simon Dwyer, the Acting Regional Commissioner for Tasmania, carried out that investigation. Mr Dwyer prepared the Report, which was in two parts. Part one dealt with the applicant’s complaint that ASIC’s original investigator, a Mr Cook, had abused his office, and taken enforcement action for an improper purpose. Part two dealt with the complaint regarding Mr Brodie’s name having been put on to the Register. In substance, the applicant contended that ASIC had acted precipitously in including Mr Brodie’s name on the Register. Had ASIC acted appropriately, and delayed including that name on the Register, the applicant would have been able to avoid having the HSBC Bank appoint a Receiver and Manager to his business, thereby salvaging it.
27.As previously noted, Mr Dwyer cleared Mr Cook of any impropriety in the conduct of the investigation into the applicant’s affairs. He also concluded that there had been no impropriety by any member of ASIC’s staff in entering Mr Brodie’s name onto the Register.
28.As also previously noted, the applicant then complained to the Commonwealth Ombudsman about the Report. On 29 June 2001, the Ombudsman advised the applicant that he had rejected his complaints. There then followed the applicant’s various requests under the FOI Act, their rejection, at least in part, and the applicant’s challenge to that decision in the Tribunal.
29.The applicant explained, from the bar table, that at the time he committed the offences to which he pleaded guilty in the County Court, his brother-in-law, Mr Brodie, was living in Townsville. He was a director and shareholder of the applicant’s companies. The applicant explained that by notice dated 13 August 1998, ASIC had asked Mr Brodie to show cause why he should not be prohibited from being a director, or from taking part in the management of a company. That followed an investigation into his conduct as a director.
30.On 11 June 1999, ASIC banned Mr Brodie from acting as a director for a period of two years and two months from 12 May 1999, the date on which he was served with a notice of prohibition. It was some twenty-eight days after that date that ASIC entered Mr Brodie’s name onto the Register.
31.Mr Brodie sought review of the decision to ban him, and also a stay of that decision. The applicant complained that ASIC told Mr Brodie that his name would not be entered on the Register until at least 7 July 1999, being the last date on which he could seek review. Notwithstanding that assurance, Mr Brodie’s name was put on the Register in June.
32.It should be noted that neither Mr Dwyer, nor the Ombudsman accepted the applicant’s claim that Mr Brodie had been given any such assurance.
33.The applicant said that, at the time, he was in the process of changing his companies’ banking arrangements from the HSBC Bank to Westpac. The manager of the particular branch of Westpac with whom he was dealing expressed a desire to meet Mr Brodie in order to obtain a clearer picture of those companies’ objectives. It was in those circumstances, and in particular in the context of a heated and very public dispute that the applicant was having with a trade union, and a Member of Parliament allegedly acting at that union’s behest, that the applicant sought to conceal from the manager his involvement with those companies. He therefore pretended to be Mr Brodie when he met the bank manager. The applicant claimed that Mr Brodie had, at all times, been fully aware of what he was doing, and that Mr Brodie had freely and voluntarily signed and executed all relevant documents.
34.The applicant then explained in still more detail why he believed that ASIC had conducted an investigation into his affairs. The theory was essentially that there had been a conspiracy on the part of certain ASIC officers to cause him harm. He alleged that they had gone to the HSBC Bank on a number of occasions, and that they had arranged for certain documents on the ASIC database to be backdated in order to deceive the bank into thinking that Mr Brodie had been acting as a director after he had been banned. This, in turn, led the bank to “pull the plug” on the applicant’s companies. To make matters worse, this was at a time that both ASIC, and the HSBC Bank were aware that the applicant was about to acquire a large company in Adelaide, ostensibly now worth $100 million.
The present proceedings focus upon the actions of ASIC officers associated with the placing of Mr Brodie’s name on the ASIC Register of Banned and Disqualified Persons (the Register) and the meeting with HSBC bank on 1 July 1999. The first defendant (Cheryl Wilson) was the ASIC officer who on 11 June 1999 sent to the solicitor for Mr Brodie the reasons for the decision to serve Mr Brodie with a notice of prohibition pursuant to s 600(3) of the Corporations Law. It appears to be alleged that because the letter indicated that an application for review by the Administrative Appeals Tribunal could be lodged within 28 days after receipt of the reasons for decision, this precluded the inclusion of Mr Brodie’s name on the Register. It is therefore alleged that first defendant wrongfully entered Mr Brodie’s name on the Register. The second defendant (Graham Ashworth) is alleged to have organised and attended the meeting with HSBC on 1 July 1999 at which certain representations were said to have been made. The third defendant (Ailsa Wilson) was another ASIC officer who attended the meeting. The fourth defendant (Graeme Donald) was an IT manager at ASIC who consulted with Simon Dwyer about the accuracy of the ASIC public computer records of Mr Brodie’s banning and is alleged to have somehow acted inappropriately in relation to those computer records.
The first declaration sought by Mr Jorgensen is to the effect that by acting as they did, the defendants failed to abide by the code of conduct under the Public Service Act 1999 (Cth) by “unlawfully incit[ing] the Applicant's bankers, the HSBC by fraud, to Appoint Receivers, which destroyed LMC”.
The second declaration sought is that by failing to act with “confidentiality, professionalism, integrity, honesty and without bias” the defendants breached their duties under the code of conduct and thereby breached their duties under the Australian Securities and Investments Commission Act 2001 (Cth).
The third declaration seeks that the banning of Mr Brodie and the “falsifying of the ASIC public database” be “annulled or set aside and record erased” due to “Fraud and denial of Natural Justice”.
The fourth declaration alleges that the first defendant “fraudulently” entered Mr Brodie’s name “prematurely” in the Register and that this was in breach of her fiduciary duty as a Commonwealth employee and ASIC officer. This is alleged to be the case because on 11 June 1999 she is said to have made a statement to Mr Brodie’s solicitor that Mr Brodie had another 28 days in which to appeal or seek review of the ASIC delegate’s decision.
The fifth declaration relates to the fourth defendant who is said to have been ASIC’s IT manager. It seeks a declaration that he breached his fiduciary duty and the code of conduct when he “conspired” with the other three defendants in “fraudulently backdating the already unlawful entering of Mr Brodie’s Banning as a Director, on 30 June 1999, back to 12 May 1999”.
The sixth declaration is that the second and third defendants breached their fiduciary duties when they “Conspired to Commit a Fraud” by aiding and abetting in the backdating of Mr Brodie’s Banning as a director to 12 May 1999 in order to “deliberately mislead” HSBC.
The seventh order which is sought is an order for third-party discovery directed to ASIC for the last known address and contact details of the four named defendants and a schedule of documents prepared by an ASIC officer, Mr Simon Dwyer, who investigated Mr Jorgensen’s complaint about the conduct of ASIC in 1999 and 2000.
Discontinuance against defendants
At the commencement of the hearing on 13 February 2023, Mr Jorgensen raised his desire to discontinue the proceedings in relation to the four existing defendants and to amend the claim so as to add Mr Brodie as a plaintiff and two other persons (Wayne Benton, a liquidator, and Martin Shaw, former general manager of LMC) as defendants in the proceedings. These matters had, during the pendency of the defendants’ current application, been addressed by the registrar who refused to accept for filing a Notice of Discontinuance or Withdrawal and an Amended Originating Application. There was no appeal from the registrar’s decisions on these matters. Mr Jorgensen, however, indicated that he may make an oral application in relation to the filing of a notice of discontinuance.
Whether or not leave was required in order to file a notice of discontinuance was the subject of some debate. The terms of r 1160(1) provide that a plaintiff may discontinue a proceeding or withdraw a part of it at any time before the court “sets a hearing date for the proceeding”. The rule does not make it clear whether what is being referred to is any hearing date or a date for a final hearing. Counsel for the defendant submitted that the setting of a hearing date for the defendants’ current applications was sufficient to preclude the plaintiff from filing a notice of discontinuance without leave.
It appeared to me to be unnecessary to finally resolve that question of statutory interpretation. Rather, I made an order that the plaintiff could not discontinue without leave. I did so on the basis that if the effect of the filing of a notice of discontinuance would be to preclude the court from determining the application seeking that Mr Jorgensen be declared a vexatious litigant or preventing the defendants from proceeding with their application for an indemnity costs order, then the filing of the notice of discontinuance would be an abuse of process. That would clearly be the case if, in fact, the proceedings as a whole were an abuse of process. It may be that the filing of a notice of discontinuance would not have prevented the determination of the applications, but the making of the order ensured that the court could deal with the substance of the applications brought by the defendants and address the stated desire of Mr Jorgensen to discontinue the proceedings as against the four defendants.
A further reason for requiring leave to discontinue the proceedings was that it became clear that Mr Jorgensen was operating under a misconception as to the effect of discontinuing against the four defendants. He appeared to be proceeding on the basis that either he had already joined Mr Brodie, Mr Benton and Mr Shaw or that, having discontinued against the current defendants, he could then join them. That involved a misconception at a number of levels:
(a)if the discontinuance against the four defendants occurred prior to joinder of the other parties, the whole of the proceedings would be at an end and not able to be re-enlivened;
(b)any amendment of the originating application would require a grant of leave by the court: rr 502, 504;
(c)Mr Brodie could not be joined as a plaintiff in the proceedings without his consent and there was no evidence of him having consented to being joined: r 222; and
(d)any application for leave to amend the originating application to join Mr Benton or Mr Shaw would not be permitted to proceed unless notice had been given to them and would almost certainly be refused for a variety of reasons including that the proceedings were statute barred as a result of the passage of time.
Having regard to this approach by Mr Jorgensen and the misconceptions that it incorporated, it was important to ensure that the court had control over any proposed discontinuance in any event.
The ongoing desire to maintain the proceedings on foot in some form was subsequently maintained in submissions. In written submissions made on 21 February 2023 he contended that the case involving Mr Brodie, Mr Shaw and Mr Benton was “full steam ahead”. In oral submissions on 24 February 2023 Mr Jorgensen maintained that position saying “we’ve paid our money, as it were, the ticket to get in, and so therefore Mr Brodie must continue on even if I got a bad decision from you”.
The conduct of the hearing
Mr Jorgensen appeared at the hearing on 13 February 2023 by audiovisual link. He indicated that he was currently resident in the United States of America. After the morning tea adjournment he appeared to have turned off the video connection and, shortly after, disconnected from the audiovisual link. Shortly before lunchtime he returned to the audiovisual link but did not turn on any video connection and did not indicate, when asked, that he could see or hear what was occurring in court.
Although the likelihood is that Mr Jorgensen made a deliberate choice to no longer participate in the hearing, orders were made which required the defendants to provide him with a transcript of the submissions that were made after he left the audiovisual connection, which allowed him to file any written submissions and, if he did, gave him an opportunity to be further heard orally on a later date. It is notable that directions had previously been made requiring him to serve any written submissions well in advance of the date of the hearing and he had not done so.
Mr Jorgensen sent a number of emails to my chambers which he wished to be treated as written submissions. A further hearing was conducted on 24 February 2023 at which he made further oral submissions. The written and oral submissions largely addressed the merits of his claims against the defendants, Mr Benton and Mr Shaw. However, they also included an application for a further adjournment and an application that I recuse myself.
Application for an adjournment
Prior to the hearing on 24 February 2023, Mr Jorgensen applied for an adjournment of the hearing for a period of three weeks so that his legal representative would be available. I did not adjourn the hearing. I now formally refuse that application. That it is because Mr Jorgensen had ample opportunity to obtain legal representation or otherwise respond to the defendants’ applications and that it was not appropriate to further delay the determination of the defendants’ applications on the basis of the possibility of Mr Jorgensen retaining presently unidentified lawyers at some future date.
That conclusion was reached bearing in mind the following chronology:
(a)these proceedings were commenced by originating application filed 25 May 2022;
(b)the defendants’ application was filed on 19 August 2022;
(c)on 9 September 2022 the proceedings were listed to be heard on 13 February 2023 and Mr Jorgensen was directed to file any evidence or submissions by 7 October 2022;
(d)on 13 October 2022 the time within which Mr Jorgensen could comply with the order made on 9 September 2022 was extended to 24 November 2022;
(e)Mr Jorgensen did not file any submissions prior to the hearing on 13 February 2023;
(f)there was no apparent technical failure which led to Mr Jorgensen’s departure from the audiovisual link at the hearing on 13 February 2023;
(g)he was provided with a copy of the transcript of the proceedings on that day; and
(h)he was permitted to provide written submissions and make any further submissions at the hearing on 24 February 2023.
Application for recusal
In email communications between 16 and 23 February 2023 which were treated as written submissions, and in oral submissions made at the hearing on 24 February 2023, Mr Jorgensen asked me to disqualify myself from further hearing of the application or the matter. At the hearing on 24 February 2023 I declined to recuse myself and reserved my reasons for that decision. These are my reasons.
There were a variety of grounds put forward by Mr Jorgensen including:
(a)An assertion of pre-judgment expressed as follows:
But clearly, Mossop J is sadly just itching to declare me a vexatious litigant after ASIC and its Officers have acted in Mafia-like style and disgraced the Australian Commonwealth government. They both must be fired if not jailed. What a farce. (Email 21 February 2023 at 5:22 am)
(b)An assertion that the making of an order that the plaintiff not discontinue the proceedings without leave of the court and an assertion that I had refused to give reasons and that this order was made for personal reasons:
And even though we know common sense is that every defendant in the world would love to be released, you’ve gone against that for personal reasons which I believe you’ve probably given undertakings to other parties, Attorney-General or whatever, that you’ll do your best to make sure Jorgensen gets hung out to dry, not in those words, effectively. (Transcript of 24 February 2023 at 5)
(c)An assertion that I had wrongly descended into the arena.
I did not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters I was required to decide. Those matters included both the application brought by the defendants as well as the various oral application is made by Mr Jorgensen. Contrary to the submission made by Mr Jorgensen, I have not given any undertakings to any of the parties, to the Attorney‑General or anybody else about the outcome of the present applications. Further, the order relating to discontinuance was made for the reasons that I have given earlier. At no point did I refuse to give reasons for the order relating to discontinuance. Rather, I indicated that they would be given as part of my overall reasons in relation to the applications. I do not consider that a fair-minded lay observer might reasonably apprehend from the procedure adopted or the orders made during the course of the hearings that I might not bring an impartial mind to the resolution of the matters that I was required to determine.
The strike out application
The grounds relied on by the defendants
The defendants rely upon rr 40, 425, 1147 and the inherent power of the court to have the proceedings dismissed, permanently stayed or have the originating application set aside or struck out as an abuse of the court’s process or as frivolous, scandalous, unnecessary, vexatious and or disclosing no reasonable cause of action.
Rule 40 provides, relevantly:
40 Setting aside originating process etc
(1) The court may—
…
(e) set aside an originating process; or
…
(g) stay a proceeding; …
The balance of the paragraphs in r 40(1) are targeted at questions of jurisdiction and service. The rule operates with r 111(1) which requires a defendant who proposes to challenge the court’s jurisdiction or to assert an irregularity to file a conditional notice of intention to respond and then make an application under r 40 within 28 days. While a conditional notice of intention to respond is more suited to questions of jurisdiction or service, the language used in r 40(1)(e) is sufficient to allow a defendant to rely upon that paragraph to seek to set aside an originating process on the grounds that the proceedings amount to an abuse of process. If such an argument is available at the point of commencement of the proceedings, then it is consistent with the purpose of the Rules that it be able to be agitated at an early stage.
Rule 425 permits a pleading to be struck out if it discloses no reasonable cause of action, may tend to prejudice, embarrass or delay the fair trial of the proceeding, is frivolous, scandalous, unnecessary, or vexatious or is otherwise an abuse of the process of the court. It has no application to proceedings started by an originating application unless the court orders the plaintiff to file and serve a statement of claim: r 400. No such order has been made in the present case and as a result r 425 has no application.
Rule 1147 is a rule permitting the grant of summary judgment for a defendant. It allows the court to give judgment for a defendant against a plaintiff if satisfied that:
(a)the claim is frivolous or vexatious; or
(b)there is a good defence to the claim on the merits; or
(c)the proceedings should finally be disposed of summarily or without pleadings.
In Re Cameron [1996] 2 Qd R 218 at 220 Fitzgerald P described what makes proceedings vexatious by reference to:
such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis …
(Citations omitted.)
The approach of the defendants was, in the circumstances of the present case, to treat vexatious proceedings and proceedings amounting to an abuse of process as being generally interchangeable concepts.
Finally, the defendants relied upon the inherent jurisdiction of the court. It is undeniable that the court has an inherent power to prevent an abuse of its own processes. The defendant relied upon the well-known statements in Williams v Spautz (1992) 174 CLR 509 at 518 and Walton v Gardener (1993) 177 CLR 378 at 392-393. In the latter case the majority judgment provides (at 392-393):
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. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. 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.
(Footnotes omitted.)
The defendants rely upon the proposition articulated in Walton that proceedings will amount to an abuse of process if they can be clearly seen to be foredoomed to fail or if their continuance would be unjustifiably vexatious and oppressive for the reason that they seek to litigate a new a cause of action which has already been disposed of by earlier proceedings.
Consideration and decision
The originating application seeks a range of declarations and contains statements of the grounds for those declarations which do not properly disclose causes of action which Mr Jorgensen is entitled to bring. For present purposes is not necessary to focus on the defects in the language of the declarations sought which assert conduct which is unlawful, involved a conspiracy, incitement and fraud. Put at a level of generality there are a number of obvious difficulties with the declarations sought.
Insofar as a declaration is sought that the four defendants breached their duties by failing to abide by the code of conduct under the Public Service Act 1999 or, by reason of that code, breached their duties under the Australian Securities and Investments Commission Act 2001, it is not clear why Mr Jorgensen would be entitled to a declaration which related to the duty of a public servant to his or her employer. No duty owed to him is asserted.
Further, the Acts pursuant to which the asserted duty is said to arise did not come into effect until after the relevant events involving the defendants had occurred. The Public Service Act came into force on 5 December 1999. The Australian Securities and Investments Commission Act came into force on 15 July 2001. It will be recalled that Mr Brodie was banned on 12 May 1999 and the meeting with HSBC was on 1 July 1999.
Although, having regard to the lack of detail provided in the pleadings it is difficult to determine which statute of limitations would be applicable, the claims would be statute barred. If the relevant statute was the Limitation Act 1985 (ACT) then the relevant limitation period would be six years. Nothing has been identified by Mr Jorgensen which would allow that limitation period to be extended. The events in question occurred between May and July 1999.
However, the more fundamental point that the defendants make in the present case is that the events in 1999 which provide the foundation for the claims made in the present proceedings have been the subject of previous proceedings brought by the plaintiff against ASIC in the Supreme Court of Victoria in 2006, the Supreme Court of New South Wales in 2016, the Supreme Court of Tasmania in 2019 and in this court in 2021.
The 2006 proceedings in the Supreme Court of Victoria involved Mr Jorgensen and two other plaintiffs (Teksid Pty Ltd, Mijac Investments Pty Ltd) both of whom were associated with Mr Jorgensen. The sole defendant was ASIC. The statement of claim made allegations concerning the events of 1999. It included a claim that ASIC had failed to exercise its duties with the required degree of care and diligence that a reasonable person would exercise and had failed to property exercise its duties of confidentiality.
The proceedings were ultimately dismissed with costs in July 2007 as a result of the operation of consent orders that had been made on 25 May 2007. The reason for the dismissal was the failure by Mr Jorgensen to take steps required to be taken pursuant to the orders of the court following the striking out of the plaintiff’s statement of claim.
Mr Jorgensen commenced proceedings in the Supreme Court of New South Wales on 30 June 2016 on his own behalf and on behalf of two other companies (Teksid Pty Ltd and Jim’s Water Tanks Pty Ltd) against William Shorten (a former official of the Australian Workers Union), Kelvin Thompson (a member of Parliament), ASIC, the second defendant and another ASIC officer. Applications were made to have the statement of claim struck out and proceedings dismissed. On 9 December 2016 Stevenson J struck out the statement of claim and dismissed the proceedings with costs: Jorgensen v Shorten (No 2) [2016] NSWSC 1761. Particulars of the claim against ASIC in that case raised the conduct of the ASIC officers at the meeting with HSBC as well as alleging unlawful backdating of the banning of Mr Brodie to 12 May 1999: Jorgensen v Shorten at [32]‑[33]. In addition to finding the pleadings were defective, his Honour noted that the plaintiff did not have any standing to make any claim against the defendants arising from the allegedly failed Castalloy takeover, that the proceedings were “clearly brought out of time”, that they involved relitigation of the issues that were the subject of the proceedings in the Supreme Court of Victoria.
The proceedings in the Supreme Court of Tasmania were commenced on 26 June 2019. The application sought an order for preliminary discovery by ASIC of certain specified categories of documents. It is apparent from the terms of the originating application seeking access to documents that they relate to the events in 1999. It is alleged that the possible proceedings to which the documents may relate include those relating to “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.” ASIC filed an application to have the claim struck out. Mr Jorgensen filed various other interlocutory applications. Holt AsJ addressed these applications and ordered, amongst other things that the originating application be dismissed: Jorgensen v Australian Securities and Investments Commission [2019] TASSC 46. His Honour reproduced portions of the statement of claim from the 2006 Victorian proceedings and referred to the history of those proceedings including their ultimate dismissal. He then referred to the 2016 New South Wales proceedings. He also made reference to events in 2007 which were subject to other proceedings but are not raised in the present proceedings. Having regard to the previously dismissed proceedings his Honour said (at [53]):
To fail to intervene and bring the current proceedings to an early end in the 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 [2019].
Costs of the proceedings were ultimately the subject of a gross sum costs order of $50,000 made on 28 May 2020.
Subsequently Mr Jorgensen sought leave to extend time in which to appeal the judgment of Holt AsJ. Ultimately that application was dismissed: Jorgensen v ASIC [2022] TASSC 40, Wood J concluding (at [39]):
The draft notice of appeal fails to disclose a single ground of appeal that has a reasonable prospect of succeeding. The draft notice of appeal is totally devoid of merit. It is not in the interest of justice that the application should be granted. The same observation applies to the original notice of appeal. Both applications to extend time are dismissed.
The 2021 ACT proceedings were commenced by originating application filed 13 August 2021. The defendants included ASIC, the four defendants in the current proceedings and two other current or former officers of ASIC. The grounds of the application make it clear that the proceedings were based upon an allegation that the date for the operation of Mr Brodie's disqualification of as director was the subject of representations by the first defendant in the present proceedings and only took effect at least 28 days after the provision of the reasons for decision. It asserts the existence of a “fraudulent gameplan” relating to the meeting with HSBC and the false assertion that Mr Brodie had been banned with effect from 12 May 1999.
The notice of discontinuance was filed on 13 September 2021. It was filed without leave or consent. The effect of that under r 1163 is that the discontinuing party is liable to pay the costs of the party to whom the discontinuance relates up to when the notice of discontinuance is served on the party.
This history of proceedings indicates that the events in 1999 have been raised, one way or another in the 2006 Victorian proceedings, the 2016 New South Wales proceedings, the 2019 Tasmanian proceedings and the discontinued 2021 ACT proceedings. Each of these proceedings has been either discontinued by Mr Jorgensen or dismissed by the relevant court.
The table below outlines the defendants in the earlier proceedings and the current proceedings. The defendants in the current proceedings are identified in bold.
2006 (Vic)
2016 (NSW)
2019 (Tas)
2021 (ACT)
Current
ASIC
Shorten
ASIC
ASIC
C Wilson
Thompson
Dwyer
Ashworth
Cook
C Wilson
A Wilson
Ashworth
Donald
Donald
A Wilson
Cook
Ashworth
Mr Jorgensen now seeks to re-agitate his claims relating to the 1999 events. It is true that the defendants in the present proceedings differ from those in the earlier proceedings.
In my view, the present proceedings amount to an abuse of process as a result of their lack of merit and the extent to which they seek to relitigate matters the subject of previous proceedings. That is for the following reasons:
(a)They attempt to relitigate the 1999 events in circumstances where those events have been the subject of the 2006 Victorian proceedings, the 2016 New South Wales proceedings, the 2019 Tasmanian proceedings and the 2021 ACT proceedings. Notwithstanding that there is only a limited overlap in the parties, the essential claim is one being made in relation to the conduct of ASIC or its officers and that is one which is consistently made in each of the proceedings.
(b)The proceedings are statute barred having regard to the fact that they occurred at least 22 and a half years ago and, whichever is the relevant limitation period, no basis has been identified upon which it might permit further proceedings after that lapse of time.
(c)Neither Mr Brodie nor the company LMC is a party to the proceedings and LMC no longer exists. No basis upon which the plaintiff has standing has been identified.
(d)To the extent to which breaches of the Australian Securities and Investments Commission Act 2001 and the Public Service Act 1999 are raised by the proceedings, neither of those had commenced at the time of the alleged events.
Because the proceedings amount to an abuse of the court’s process they are liable to be dismissed or permanently stayed. Insofar as Mr Jorgensen flagged his intention to attempt to join Mr Brodie as a plaintiff and Mr Benton and Mr Shaw as defendants, for the reasons outlined earlier, the prospects of that occurring are negligible. The potential for such a reconstitution of the proceedings does not provide a reason not to terminate the proceedings that are an abuse of the court’s process. It is therefore appropriate to grant relief to the defendants so as to end the proceedings. The application sought a variety of orders to remedy the abuse of process. Although other orders would also be available, a permanent stay of the proceedings pursuant to the inherent jurisdiction of the court to control its own processes will be effective to permanently end the proceedings.
The vexatious litigant application
The grounds relied upon by the defendants
Section 67A of the Supreme Court Act 1933 (ACT) provides:
67AVexatious litigants
(1)In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
Proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
Vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b)that lack reasonable grounds.
(2)If, on the application of the Attorney-General or an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3)A declaration may be expressed to apply only in relation to a particular type of matter.
(4)A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5)If a person is declared to be a vexatious litigant—
(a)the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b)any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6)If the court gives leave to a person for subsection (5) (a), it may impose the conditions it considers appropriate.
(7)Conditions imposed under subsection (6) in relation to proceedings may include conditions—
(a)relating to security for costs in the proceedings; and
(b)specifying matters relating to the issue of process in the proceedings.
(8)Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9)The court may vary a declaration.
(10)Subject to any order of the court, an order making, varying or revoking a declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
(11)If proceedings are instituted by a person in contravention of this section, the proceedings shall be taken to have been permanently stayed.
(12)If practicable, any documents filed or lodged with a court or tribunal by a person in proceedings referred to in subsection (11) shall be returned to the person by the registrar or similar officer of a court or tribunal.
(13)Notwithstanding subsection (5), a person declared to be a vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.
In Ezekiel-Hart v Reis [2018] ACTSC 264 McWilliam AsJ identified the three considerations relevant to an application for an order under s 67A (at [90]):
(a)whether the person instituted vexatious proceedings;
(b)whether they have done so frequently; and
(c)whether the court should exercise its discretion to make the orders sought.
In Ezekiel-Hart her Honour said of the statutory term “frequently” (at [98]):
The statutory term ‘frequently’ is a relative term and must be looked at in the context of the litigation being considered: Wilsonat [12]-[14]. The issue is not to be assessed merely by an arithmetic calculation: Viavatteneat [49] per Leeming JA. The number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person. The court must examine the nature of the applications to determine whether they are simply a consequential aspect of the original proceedings, or something different. The court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter: see Wilson at [12]; Croker at [22]; Attorney General v Gargan at [7]; Siteberg v Maples[2010] NSWSC 1344 (Maples) at [31]-[32]; and Potierat [114]- [118].
See also Ezekiel-Hart v Council of the Law Society of the ACT & Anor [2021] ACTSC 133 at [149].
The defendants contend that the plaintiff has repeatedly commenced proceedings that lack reasonable grounds. Those proceedings relate to the 1999 events as well as, in some cases, events that occurred in 2007. Those 2007 events concern ASIC successfully bringing proceedings in the Supreme Court of Queensland in 2007 in relation to the affairs of Jim’s Water Tanks Pty Ltd, a company of which Mr Jorgensen was a director and manager. All of the proceedings relating to the 1999 events and the 2007 events have either been dismissed as an abuse of process or otherwise lacking reasonable grounds or dismissed because they have been abandoned by the plaintiff without a hearing on the merits.
The cases relied upon as constituting vexatious proceedings are:
(a)the 2006 Victorian proceedings which related to the 1999 events;
(b)the 2016 New South Wales proceedings which related to the events in 1999 as well as the 2007 events;
(c)the 2019 Tasmanian proceedings which related to both the 1999 events and the 2007 events;
(d)the 2021 ACT proceedings which related to the 1999 events although the plaintiff had served but not filed a draft amended originating application that include allegations relating to the 2007 events; and
(e)the present proceedings which relate only to the 1999 events.
So far as the discretion to make an order under s 67A concerned the defendants rely upon:
(a)the likelihood of him commencing further proceedings;
(b)the failure to accept an open offer of settlement made on 26 July 2022 and the significant costs incurred by ASIC in defending proceedings against it and the defendants; and
(c)that the plaintiff has previously been declared to be a vexatious litigant by the Supreme Court of Queensland and the Federal Court of Australia in relation to other unrelated subject matters.
Vexatious proceedings
The proceedings commenced by the plaintiff have been vexatious. The definition of vexatious in s 67A(1) contains two limbs. The first limb contains two separate components:
(a)“the purpose of which is to harass or annoy, to cause delay”; or
(b)“for some other ulterior purpose”.
Counsel for the defendant submitted that for the purposes of the first component, it was not limited to the subjective purpose of the litigant but extended to some objectively determined purpose. As a consequence, it would not be necessary to make an enquiry into the actual state of mind of the litigant, but rather it would be open to (somehow) assess objectively the purpose of the proceedings. It is not necessary to finally resolve this submission. That is because, in my view, the second component to the first limb that refers to “some other ulterior purpose” would be sufficient to capture a situation in which the claim amounted to an abuse of process. An “ulterior” purpose is a purpose which is outside the proper scope of the purposes of litigation. Necessarily it encompasses the pursuit of proceedings which are themselves an abuse of the court’s process. As a consequence, the second component of the first limb of the definition of vexatious proceedings captures the pursuit of proceedings which constitute an abuse of process.
So far as the second limb of the definition of ”vexatious proceedings” is concerned, whether the proceedings “lack reasonable grounds”, that is a matter that clearly goes to the merits of the claim.
Each of the previous claims relied upon by the defendants falls within the scope of vexatious proceedings as defined because they either lacked reasonable grounds or were for some other ulterior purpose.
(a)The 2006 Victorian proceedings were effectively abandoned by the complainant after his statement of claim was struck out. I am prepared to infer from the striking out of the claim and the failure to pursue it that it lacked reasonable grounds.
(b)The 2016 New South Wales proceedings were found to lack reasonable grounds for various reasons set out by Stevenson J and it was that which resulted in leave to replead not been given.
(c)The 2019 Tasmanian proceedings were found to amount to an abuse of process.
(d)The 2021 ACT proceedings involved an attempt to relitigate the earlier matters in a way which would amount to an abuse of process and lacked reasonable grounds, most obviously because they were out of time.
Frequently
I am satisfied that the bringing of the identified proceedings amount to “frequently” bringing such proceedings because each of them relates to the same subject matter insofar as it involves the 1999 events.
Discretion
In my view, it is appropriate to exercise the discretion available under s 67A and make a declaration. That is because in the absence of an order further vexatious proceedings are likely to be brought without regard for the costs consequences for Mr Jorgensen or the defendants. That is for the following reasons:
(a)Mr Jorgensen has demonstrated over many years a desire and willingness to pursue issues arising out of the 1999 events in different courts notwithstanding his abandonment of the 2006 proceedings, the operation of a limitation bar and the inability to properly constitute the proceedings.
(b)He has at all relevant times been unrepresented by a lawyer and has not demonstrated any insight into the legal difficulties that he faces in the ongoing pursuit of relief relating to the 1999 events. Nor has he been deterred by the existence of previous costs orders or liabilities arising from his past conduct of proceedings.
(c)ASIC (who I infer has been ultimately responsible for the defendant’s costs in the various proceedings) has incurred very significant costs in addressing proceedings brought against it or in defending proceedings brought against its staff or former staff. These are as outlined in the affidavit of Melanie McKean dated 19 August 2022 at [37], [47], [57] and [74] and totalled $358,637.99. Notwithstanding the dismissal of the previous proceedings, those costs have not been paid by Mr Jorgensen. The figure for costs does not include the costs incurred in the current proceedings.
(d)His persistent desire to pursue ASIC or its employees over the 1999 events and his willingness to do so despite the risk of costs orders against him is illustrated by his willingness to pursue the present proceedings rather than accept the offer of settlement made by the defendants which would have prevented further proceedings but avoided the costs consequences of past proceedings as well as any costs in the current proceedings.
(e)His conduct of unrelated proceedings has been sufficient to have him declared to be a vexatious litigant in other jurisdictions, illustrating that the predisposition to bring proceedings that lack merit is not one confined to the subject matter of the present proceedings: see Jorgensen v Jorgensen [2016] QSC 193; Jorgensen v Jorgensen (No 3) [2021] FCA 209.
The defendants sought a declaration in unqualified terms that Mr Jorgensen was a vexatious litigant. The alternative order sought was one which was confined to proceedings with certain parties or involving certain subject matter. Although the making of a vexatious litigant declaration is clearly an interference with what otherwise would be Mr Jorgensen’s civil rights, and hence one in which there would be reasons to impose narrowly crafted rather than broad orders, in the present case it is most appropriate to simply make an order in general terms. That is because the order must be one which is able to be practically implemented. Mr Jorgensen’s past cases have involved a variety of parties and claims related to both the 1999 events and the 2007 events. In order to properly capture the various potential claims which may be made in the future, the parties and the claims would need to be identified. If they were to be identified by reference to the subject matter of earlier proceedings, then that would require the registrar to examine those earlier proceedings in order to determine whether or not any new proceedings were the subject of the vexatious litigant declaration. That would be a cumbersome and unwieldy process. Much more straightforward is an order in general terms which would require a grant of leave before any proceedings are commenced by Mr Jorgensen. To the extent to which possible causes of action outside the scope of the matters that would be covered by a more detailed declaration would be caught by a declaration in general terms, that is unlikely to be a significant burden upon the rights of Mr Jorgensen as he now resides in the United States of America and said that given that his son was no longer going to go to university in Canberra there was no longer any “utility in using Canberra now”.
Application for a stay under r 1169
In those circumstances, it is unnecessary to determine the application to stay the proceedings pending the payment of the costs incurred in the 2021 ACT proceedings prior to their discontinuance. However, had the proceedings not otherwise been terminated, I would have made an order under r 1169 staying the proceedings pending payment of the costs of those earlier proceedings. Having regard to the fact that those costs have not been assessed I would have addressed that issue by ordering, on the basis of the evidence before me, a reasonable sum to be paid into court: Thames Investment & Securities PLC v Benjamin [1984] 1 WLR 1381 at 1384-1385.
Application for leave to discontinue
Having regard to the conclusion that the proceedings amount to an abuse of process, it is not appropriate to grant leave to discontinue. While it would be open to the court to permit a discontinuance in those circumstances and impose terms on that discontinuance which would affect the capacity of the plaintiff to bring further proceedings, it is more appropriate for the court itself to control its own process and terminate the proceedings. That is because:
(a)it was apparent that Mr Jorgensen did not understand the consequence of discontinuance was to bring the proceedings to an end in a way that precluded their continuance by the substitution of parties; and
(b)it is more consistent with the assertion of the authority of the court to control its own processes that a party who has abused those processes have the decision as to termination of the proceedings taken out of his hands.
Costs
The defendants sought an order for costs in their favour on an indemnity basis. Having regard to the fact that the defendants have been successful in establishing that the proceedings amount to an abuse of process and successful in obtaining a vexatious litigant declaration under s 67A, it is appropriate that they benefit from a costs order on a better than usual basis. In my view, it is appropriate to make an order on a solicitor and client basis rather than on an indemnity basis. The practical difference between these bases of costs assessment is minimal, affecting the onus upon the parties to prove the reasonableness of the costs incurred. The making of an order on a solicitor and client basis retains the burden upon the beneficiary of the order to establish the reasonableness of the amounts charged. The imposition of such a discipline is appropriate. The defendants did not wish to be heard against the making of an order on this basis. The defendants wished to reserve their position in relation to the making of a gross sum costs order. I will require that they make any such application within 28 days of the orders that I make.
Orders
The orders of the Court are:
1.The application for a further adjournment of the proceedings is refused.
2.The proceedings are permanently stayed.
3.The oral application by the plaintiff to discontinue the proceedings is dismissed.
4.Declare pursuant to s 67A of the Supreme Court Act 1933 (ACT) that Mr Alan Bradley Jorgensen is a vexatious litigant.
5.The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
6.Direct that any application by a defendant for a gross sum costs order may only be made within 28 days of the date of these orders.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 10 March 2023 |
Amendments
| 28 June 2023 | Include “with T Kane” after “J R Clarke SC” | Page 2, “Representation: Counsel” |
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