Victorian Legal Services Board v Ansell (Proposed application to re-open)
[2024] VSC 184
•19 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
IN THE MATTER OF A PROPOSED APPLICATION IN:
S ECI 2022 03890
BETWEEN:
| VICTORIAN LEGAL SERVICES BOARD | Plaintiff |
| v | |
| PETER HARTLEY ANSELL | Defendant |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Not applicable. Matter referred to a Judge of the Court by the Prothonotary and dealt with on the papers |
DATE OF JUDGMENT: | 19 April 2024 |
CASE MAY BE CITED AS: | Victorian Legal Services Board v Ansell (Proposed application to re-open) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 184 |
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PRACTICE AND PROCEDURE – Refusal by Prothonotary to accept affidavit and proposed summons for filing on basis that they are irregular –Referral to a Judge of the Court – Whether Prothonotary should be directed to accept the documents – Misconceived attempt to re-open finalised proceeding – Direction sought would be wrong – Order made that no such direction be given – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 1.15 and 27.06 and Order 28A.
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APPEARANCES: | Counsel | Solicitors |
| Not applicable |
HIS HONOUR:
Introduction and overview: a misconceived attempt to re-open a finalised proceeding
This matter comes to me in consequence of a referral from the Prothonotary.
On 13 March 2024 the Prothonotary made a decision refusing to accept for sealing and filing a draft summons dated 8 March 2024 and an affidavit sworn the same day (‘the documents’) that had been emailed to the Registry of the Court by the defendant in this proceeding, Mr Peter Ansell, who stated that he was acting on his own behalf and on behalf of one Shivesh Kuksal. The affidavit of 8 March 2024 had been sworn by Mr Ansell. I will refer to Mr Ansell and Mr Kuksal, together, as the proponents.
The proponents had claimed that this matter was urgent; and they had sought from the Practice Court Co-ordinator, albeit unsuccessfully, an early, oral hearing in the Practice Court.
The Prothonotary’s decision was issued in the form of a written document dated 13 March 2024 entitled ‘Refusal’, which included reasons for the decision. The decision was expressed to have been made under r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The essential reason given was that the proponents had been seeking to make an application to the Trial Division for the reopening of a finalised proceeding; and that this was irregular because any such application should only be made to the Court of Appeal. The ‘Refusal’ document treats the proponents as having made an anticipatory challenge to the Prothonotary’s anticipated decision to refuse to accept the documents for filing. Noting the proponents’ claim of urgency, the Prothonotary, in his ‘Refusal’ document, concluded by referring the matter to a Judge of the Court for ‘review pursuant to r 27.06(3) of the Rules’. The proponents, too, had mentioned r 27.06(3) of the Rules. Strictly speaking, as I will further indicate, it seems that neither r 27.06(1) nor r 27.06(3) was applicable. However, that does not affect the substance of this matter.
In essence, the question is whether the Court should direct the Prothonotary to seal and file the documents.
In my view, the Court should not do so. Nor was or is there any occasion for an oral hearing about the matter.
As indicated above, the principal application foreshadowed in the proposed summons is for an order to ‘re-open’ this proceeding. The other applications foreshadowed in the proposed summons are all premised on the success of that principal application. Thus the very terms of the proposed summons acknowledge that this proceeding is, at present, no longer ‘open’. And, indeed, as I will further indicate soon, this proceeding was duly finalised by the combined operation of three orders made by the Honourable Justice J Forrest, one made in October 2022, another made in November 2022 and the other made in February 2023.
It is well established that the Court has no power, except on appeal, to set aside a perfected order disposing of a proceeding, save on very narrow grounds.[1] No such grounds are identified or relied upon by the proponents in the present matter. Even if such grounds had been identified and relied upon, the proper procedure would have been to commence a fresh proceeding by writ and statement of claim, not to file a summons in the finalised proceeding.[2]
[1]See further below.
[2]Again, see further below.
Accordingly, it would be pointless to hold an oral hearing in this matter and wrong to direct the Prothonotary to accept the documents for sealing and filing.
The history of this proceeding (S ECI 2022 03890)
From the commencement of this proceeding on 3 October 2022 until its finalisation on 21 February 2023, the proceeding was dealt with by the Honourable Justice J Forrest, exclusively. On 21 February 2023 His Honour published a set of reasons covering the whole of the matter.[3] The proponents do not contend that any statements of fact set out in his Honour’s reasons are inaccurate. The following recitation of the relevant history of this proceeding is based on his Honour’s reasons, the contents of the Court file and matters raised by the proponents themselves. Hence, the relevant history is uncontroversial.
[3]Victorian Legal Services Board v Ansell [2023] VSC 62.
As indicated above, this proceeding was commenced on 3 October 2022. The plaintiff, the Victorian Legal Services Board, commenced it by originating motion in the Common Law Division. The relief sought in the originating motion was an injunction, pursuant to s 447(3) of the Legal Profession Uniform Law, being Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) (‘the Act’), or alternatively pursuant to s 37 of the Supreme Court Act 1986 (Vic), to require Mr Ansell, who was then a solicitor holding a corporate practising certificate, to attend for examination under s 383 of the Uniform Law, as reasonably required from time to time by an investigator appointed by the Board under s 153(1) of the Act.
The first hearing in the proceeding took place on 6 October 2022. According to paragraph 9 of Mr Ansell’s affidavit of 8 March 2024, at the outset of the hearing on 6 October 2022 Justice Forrest dismissed an application that had been made by Mr Kuksal to be joined as a party to the proceeding ‘in order to seek injunctive relief against [the Board]’. I will assume that such an application was made and dismissed on 6 October 2022 as asserted by Mr Ansell, notwithstanding that there is no written record of it in any authenticated order or in his Honour’s reasons for judgment.
In any event, it is clear that, on 6 October 2022, Justice Forrest ordered, among other things, that at 10.00am on 13 October 2022 Mr Ansell was to attend an examination by an investigator appointed by the Board at a specified address. The order of 6 October 2022 was duly authenticated on 11 October 2022.
Mr Ansell did not attend the examination scheduled for 13 October 2022.
On 14 October 2022, the Board applied by summons for an order that Mr Ansell be punished for contempt of court in respect of a charge that Mr Ansell breached the order for attendance at the examination (‘the Board’s contempt summons’).
On 27 October 2022, Justice Forrest made an order containing directions for the hearing and determination of the Board’s contempt summons. That order was duly authenticated on 28 October 2022.
On 10 November 2022, Justice Forrest made an order containing provisions, so far as relevant, to the effect that:
(a) Mr Ansell was found to have committed a contempt of court by failing or refusing to attend the investigator’s examination in breach of the order of 6 October 2022;
(b) the Board’s contempt summons was adjourned to a later date for a hearing as to penalty;
(c) Mr Ansell was required to attend an examination by a certain investigator, namely Mr G. Cooper, at 10.00am on 24 November 2022 at a specified place, and to be examined until excused by Mr Cooper;
(d) Mr Ansell was to pay the Board’s costs of the Board’s contempt summons on an indemnity basis;
(e) there was liberty to apply.
The order of 10 November 2022 was duly authenticated on 11 November 2022. A penal notice was attached to it.
Mr Ansell attended the examination on 24 November 2022 and a further examination on 29 November 2022.[4]
[4]Victorian Legal Services Board v Ansell [2023] VSC 62 [37].
The hearing as to the appropriate penalty to be imposed on Mr Ansell for contempt took place on 5 December 2022.[5]
[5]Ibid [38].
His Honour made his last order in this proceeding on 21 February 2023. As indicated above, his Honour published reasons on that day that covered the previous hearings and orders as well as the matters the subject of the hearing on 5 December 2022 and of the order made on 21 February 2023.
In his reasons, when his Honour came to deal with the matter of penalty, Justice Forrest said that, contrary to the Board’s submissions, the contempt should be treated as civil rather than criminal.[6] Accordingly, his Honour determined not to impose a conviction, but merely to confirm the finding of contempt that his Honour had made on 10 November 2022, which had been included in the authenticated order of that date.
[6]Ibid [41]–[52].
In the reasons, his Honour also considered a range of other matters relevant to penalty.[7]
[7]Ibid [53]–[67].
Ultimately, his Honour found that it was inappropriate to impose any further financial penalty on Mr Ansell beyond requiring him to pay the Board’s costs of the proceeding on an indemnity basis.[8]
[8]Ibid [69]–[72].
The order made by Justice Forrest on 21 February 2023 was reduced to writing, and duly authenticated, on the same day. The recitations set out in the authenticated order under ‘Other Matters’ included, in effect, a recitation that his Honour had, on 10 November 2022, found that Mr Ansell had committed a contempt of court; a recitation that, also on 10 November 2022, his Honour had ordered Mr Ansell to pay the plaintiff’s costs of the Board’s contempt summons on an indemnity basis, to be taxed if not agreed; and a recitation that paragraph 1 of the order of 21 February 2023 (see below) was to be read as being in addition to the provisions just mentioned of the order of 10 November 2022. The operative parts of the authenticated order of 21 February 2023 were as follows:
THE COURT ORDERS THAT:
1.The defendant pay the plaintiff’s costs of and incidental to this proceeding, to be taxed in default of agreement on an indemnity basis.
2.The proceeding is dismissed.
Thus the authenticated orders of 6 October 2022, 10 November 2022 and 21 February 2023, by their combined operation, completely disposed of this proceeding.
There is no suggestion or indication that any steps were taken, or sought to be taken, in or in relation to this proceeding, by any party or other person, after 21 February 2023 until on or about Friday 8 March 2024.
Recent events
At 4.02pm on Friday 8 March 2024, just before the long weekend, Mr Ansell emailed three documents to the Principal Registry of the Supreme Court (copying in the Prothonotary). The text of the email from Mr Ansell read:
Dear Registry Staff,
Please find attached a copy of:
1. The draft summons seeking orders in respect of the proceeding S ECI 2022 03890;
2. My affidavit in support of the summons; and
3. An urgent hearing application form.
Please advise when this matter may be listed for an urgent hearing at the earliest opportunity.
I confirm that I have separately put the Victorian Legal Services Board and Commissioner on notice of these documents.
In fact, while the draft summons and the urgent hearing application form had been attached to the email, the affidavit had not been. Rather, by mistake, a document containing exhibit covers to the affidavit had been attached instead of the affidavit itself. This mistake was noticed and rectified by Mr Ansell on the following Wednesday, 13 March 2024.
In the meantime, on 12 March 2024, the Practice Court Co-ordinator emailed Mr Ansell to advise him that the application had been assessed as not appropriate for a hearing in the Practice Court. The Co-ordinator recommended that Mr Ansell consider whether to pursue an appeal against Justice Forrest’s orders to the Court of Appeal, and she attached a link relating to civil appeals.
In response, on 13 March 2024, Mr Ansell sent a four page email to the Practice Court Co-ordinator, copying in the Prothonotary and the Chief Executive Officer of the Court. The email included a section headed ‘Accompanying Documents’ in which various documents were listed, all of which, except one, were described with dates falling within 2022, being documents that were apparently in the possession of Mr Ansell and/or Mr Kuksal in 2022. The exception was described as a ‘document consolidating relevant email exchanges between the Court and the parties to the proceedings S ECI 2022 03890 and S ECI 2022 04028 between 22 August 2022 and 18 December 2023’. The reference in Mr Ansell’s email to the proceeding numbered S ECI 2022 03890 was, of course, a reference to this proceeding. The reference to proceeding number S ECI 2022 04028 was a reference to a proceeding that had been brought by Mr Kuksal, Mr Ansell and others against the Board and others challenging steps taken by the Board to investigate Mr Kuksal, Mr Ansell and others in relation to suspected offences relating to legal practice, and making other related claims against the Board.[9]
[9]See, generally, Kuksal v Victorian Legal Services Board [2023] VSC 495 (Gorton J); Kuksal v Victorian Services Board (Recusal Application) [2023] VSC 722 (Gorton J); and Kuksal v Victorian Legal Services Board (Recusal, Stay and Costs) [2024] VSC 78 (Gorton J).
The four page email from Mr Ansell of 13 March 2024 (stated to have been sent on his own behalf and on behalf of Mr Kuksal), included a detailed letter addressed to the Practice Court Co-ordinator in which matters were put forward in purported support of the proposition that there should be an oral hearing in the Practice Court of the proponents’ claim that the documents (of 8 March 2024) should be accepted for filing.
In the letter, the proponents also asserted, again, that the matter was urgent. However, in none of their documents was the claim for urgency properly articulated or supported. On the other hand, as will further appear, whether or not the claim for urgency was valid or supportable makes no difference in the end.
The Prothonotary’s ‘Refusal’ document of 13 March 2024 indicates that he had had access to all of this recent correspondence between the proponents and the Court. The ‘Refusal’ document was headed in the same fashion as other documents contained in the file for this proceeding (ie proceeding S ECI 2022 03890), save that the words ‘IN THE MATTER of a proposed proceeding’ were included in the heading. The ‘subject’ of the Refusal document was described as follows:
Application by the proposed plaintiff emailed to the Practice Court on 8 March 2024 and reviewed pursuant to Rule 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015.
It is desirable to set out the rest of the Refusal document in full (footnotes retained but renumbered):
Upon reading and assessing the proposed document/s of the applicant, the Prothonotary has rejected the documents and refused to seal them because, if sealed, they would be substantially irregular
Reasons for refusal
1.On 8 March 2024, Mr Ansell and Mr Kuksal sought to file an urgent summons with the Practice Court in proceeding, S ECI 2022 03890. Among other things, the summons seeks to reopen that proceeding and to overturn decisions made by Justice Forrest.
2.On 12 March 2024, the Practice Court coordinator emailed Mr Ansell informing him that the ‘application has been assessed as not appropriate for the Practice Court’. Nothing was filed by Mr Ansell on the court’s filing system, Redcrest and so no assessment pursuant to r 28A.04(2)[10] was made prior to that decision by the Practice Court Coordinator.
3.Mr Ansell then emailed the Practice Court on 13 March 2024 seeking to review the decision to not allow his application to be heard on an urgent basis in the Practice Court. This was brought to my attention because Mr Ansell also copied in [email protected]. Having brought this matter to my attention, I now review it pursuant to r 27.06(1).[11]
4.The Practice Court can hear matters if it is shown, on affidavit, that the application is sufficiently urgent as to effectively jump the queue of matters awaiting hearing. It is entirely appropriate for the Practice Court Coordinator, in conjunction with the judge sitting in the Practice Court, to make decisions about whether any proposed application is appropriate to be heard on an urgent basis. That decision does not amount to a refusal under either r 28A.04 or r 27.06.
5.An application that seeks to ‘reopen’ a finally determined proceeding[12] in the trial division, or to set aside decisions of a trial division judge, lie solely with the Court of Appeal. All other heads of relief sought by Mr Ansell are ancillary to the reopening of the finalised proceeding. This application is therefore irregular and is refused pursuant to r 27.06(1).
6.Noting Mr Ansell’s indication in his letter emailed to the Court on 13 March 2024 that he requests an urgent hearing to challenge my refusal (that had not occurred to that point), I forthwith refer this to a judge of the Court for review pursuant to r 27.06(3) to be heard as the business of the court allows and in the manner set by the Judge.
[10]Supreme Court (General Civil Procedure) Rules 2015.
[11]Supreme Court (General Civil Procedure) Rules 2015.
[12]Victorian Legal Services Board v Ansell [2023] VSC 62.
Subsequently, in accordance with the Court’s usual practice, this matter was assigned to the Judge sitting in the Practice Court (Common Law), and so it came to me. Like the Prothonotary, I assume that the proponents would seek to challenge the Refusal decision and that they would wish to have the matter dealt with in an open, oral hearing.
The relevant Rules of Court
As mentioned above, the Prothonotary’s Refusal decision was said to have been made under r 27.06(1) of the Rules, and the referral to a Judge was said to have been effected pursuant to r 27.06(3) of the Rules. As is also mentioned above, there are questions as to the applicability of those provisions of the Rules, although, as will be further explained, those questions do not affect the substance of this matter or make any difference to the proper outcome.
It is desirable, first, to set out the whole of r 27.06:
Prothonotary refusing to seal or accept document
27.06
(1) The Prothonotary may refuse to seal an originating process without the direction of the Court where the Prothonotary considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.
(2) Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court—
(a) the Prothonotary may refuse to accept it for filing without the direction of the Court;
(b) the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is duly prepared is made available.
(3) The Court may direct the Prothonotary to seal an originating process or accept a document for filing.
(4) Paragraphs (1), (2) and (3) do not apply to an originating process or other document filed in RedCrest under Order 28A.
Noting the reference in r 27.06(4) to Order 28A, and noting the reference in the Prothonotary’s written reasons to r 28A.04, it is desirable, also, to set out the following relevant parts of Order 28A:
Application of this Order
28A.01(1) This Order applies to documents to be filed in the Court in any proceeding in–
…
(b) the Common Law Division…
(2) Subject to this Order, all documents sought or required to be filed in a proceeding to which this Order applies shall be filed in accordance with this Order.
…
(4) Nothing in this Order affects the filing of originating process pursuant to Rule 5.11(5).
Definitions
28A.02 In this Order–
authorised person means a person who has been issued with a user name and password to access RedCrest by the Prothonotary or otherwise provided with access to RedCrest;
sealmeans seal with the seal of the Court.
How and when a document is filed
28A.03(1) A document to be filed in the Court is to be submitted by an authorised person in RedCrest–
(a) in a PDF version; or
(b) in any other form–
(i) in a proceeding in the Trial Division, approved by the Prothonotary; or
(ii) in a proceeding in the Court of Appeal, approved by the Registrar.
(2) A document is filed in the Court when it is sealed by the Prothonotary or the Registrar, as the case requires.
…
…
Powers of Prothonotary or Registrar
28A.04(1) The Prothonotary or the Registrar (in a proceeding in the Court of Appeal) may refuse to seal a document submitted in RedCrest to be filed until satisfied that the document–
(a) complies with the Rules; or
(b) complies with an order of the Court.
(2) The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that:
(a) a document, if it was sealed, would be substantially irregular or constitute an abuse of process; or
(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.
(3) If the Prothonotary or the Registrar–
(a) refuses to seal a document; or
(b) rejects a document–
the Prothonotary or the Registrar, as the case requires, shall send an electronic communication to the authorised person advising–
(c) that the document has not been accepted for filing; and
(d) the reason it was not accepted for filing.
(4) Unless the Prothonotary or the Registrar rejects the document under paragraph (2), on sealing, a document is taken to have been filed at the time and on the date it was first submitted in RedCrest for filing in accordance with Rule 28A.03(1).
(5) If the Prothonotary or the Registrar–
(a) fails to seal a document within a reasonable time; or
(b) refuses to seal a document; or
(c) rejects a document–
the Court may–
(d) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document was first submitted in RedCrest for filing;
(e) direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document is so sealed;
(f) make any other order or give any direction that it considers appropriate.
…
The expression ‘originating process’, which is used in rr 27.06(1), (3) and (4) and in r 28A.01(4), is defined in r 1.13 of the Rules as follows:
originating process means any process by which a proceeding is commenced, and includes a third party notice and, where a counterclaim is made against a person not previously a party to the proceeding in which the counterclaim is made, the counterclaim.
It is also useful to set out r 1.15 of the Rules:
Procedure wanting or in doubt
1.15(1) Where the manner or form of the procedure–
(a) for commencing, or for taking any step, in a proceeding; or
(b) by which the jurisdiction, power or authority of the Court is exercisable–
is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court shall determine what procedure is to be adopted and may give directions.
(2) An act done in accordance with a determination or direction under paragraph (1) is regular and sufficient.
(3) An application for directions with respect to the commencement of a proceeding shall be made by originating motion in which no person is named as defendant and an application for directions with respect to a proceeding already commenced shall be made by summons.
Dealing with the proponents’ application: the procedural questions
If the proponents’ proposed summons were to be issued within the proceeding (as had been sought), it would not have amounted to ‘originating process’ within the definition of that expression in r 1.13 of the Rules. Hence it would not have amounted to ‘originating process’ within the meaning of rr 27.06(1), (3) or (4). Thus it seems that r 27.06(1) was not applicable. Nor, apparently, was r 27.06(2) applicable. Although the proposed summons and the affidavit would each have amounted to ‘a document for use in the Court’ within the meaning of r 27.06(2), it was not suggested that either document had not been ‘prepared in accordance with [the Rules] or any order of the Court.’
It would also seem to follow that r 27.06(3) would not, of itself, empower the Court to give a relevant direction to the Prothonotary.
On the other hand, although the Prothonotary took a different view, it seems to me that the relevant powers probably were and are conferred by Order 28A of the Rules.
The documents supplied by the proponents probably amounted to ‘documents to be filed in the Court in [a] proceeding in… the Common Law Division’ within the meaning of r 28A.01(1). Indeed, it may even be that r 28A.01(2) required that the documents be assessed under Order 28A, rather than under r 27.06. But that need not be decided.
If, as I think, Order 28A applied, and still applies, to the documents, then r 28A.04(2)(a) empowered the Prothonotary to reject them if the Prothonotary considered that, if sealed, they would be ‘substantially irregular’ or would ‘constitute an abuse of process’. Plainly, the Prothonotary considered that these documents were ‘substantially irregular’. The forming of such a view was the condition which needed to be satisfied if the power conferred by r 28A.04(2)(a) on the Prothonotary (if any) was to be exercised.
If r 28A.04(2)(a) was an available source of power, as I think it was, then the Prothonotary’s decision in the present matter was legally supported, notwithstanding that the Prothonotary’s reference to r 27.06(1) as the relevant source of power was, on this assumption, incorrect.[13]
[13]Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [124] (Heydon J); Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [34] (French CJ, Hayne, Kiefel and Bell JJ); Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at [175] (Crennan and Kiefel JJ); Luck v University of Southern Queensland (2018) 265 FCR 304, 308 [14] (Mortimer J).
I note that the Prothonotary did in fact advise the proponents by electronic communication (email) that the documents had not been accepted for filing and advised them of the reasons. That would seem to satisfy r 28A.04(3) (if applicable).
If Order 28A was and is applicable, as I think it was and is, then the Court has power under r 28A.04(5) to give (or to refrain from giving) a direction to the Prothonotary under r 28A.04(5) in this matter.
Moreover, even if neither r 27.06(3) nor r 28A.04(5) be applicable, nevertheless the Court would have power under Rule 1.15 (see above) to give a relevant direction to the Prothonotary.
Whatever may be the applicable Rule, it is the usual practice of this Court for challenges to refusals by the Prothonotary to accept documents for filing to be dealt with by a Judge or an Associate Judge on the papers without an oral hearing.[14]
[14]See, eg Re Klement [2013] VSC 683 (Cavanough J); Re Saric; Saric v Vukasovic (No 3) [2021] VSC 60 (Gorton J); Austin v Dwyer & Ors [2023] VSC 76 (John Dixon J).
There is no reason to depart from the Court’s usual practice in the present case. As will be seen next, the appropriate outcome is clear beyond argument.
The proposed application to re-open the proceeding would be bound to fail: irregularity and abuse of process
In the proponents’ draft summons, so far as presently relevant, the relief proposed to be sought is that the proceeding be re-opened and that the orders made by Justice J Forrest for the examination of Mr Ansell by Mr G Cooper, and the orders made by his Honour in relation to Mr Ansell’s contempt of court, be set aside ‘on the basis that they have been obtained by equitable fraud and in misapprehension of the law and the relevant facts’. No other basis for re-opening the proceeding and setting aside his Honour’s orders is suggested in the summons or in the affidavit of Mr Ansell sworn 8 March 2024 or, for that matter, in the proponents’ urgent hearing application form of the same date.
Nor was any other basis for the proposed relief suggested in any of the subsequent communications from Mr Ansell to the Court.
Indeed, in the detailed letter from Mr Ansell to the then Practice Court Co-ordinator that was included in Mr Ansell’s abovementioned email of 13 March 2024, Mr Ansell confined himself, relevantly, to a suggestion of ‘equitable fraud’. In particular, he asserted that the question ‘whether or not the grounds raised by us justify the invocation of the Court’s inherent jurisdiction to set aside judgments obtained by equitable fraud is necessarily a judicial determination’ (my emphasis).
Neither in the letter, nor anywhere else in his email of 13 March 2024, did Mr Ansell expressly mention misapprehension of the law or misapprehension of the relevant facts. Nevertheless, I will assume in the proponents’ favour that they would still wish to rely on ‘misapprehension of the law and the relevant facts’ (as mentioned in their proposed summons) as well as, or in conjunction with, equitable fraud.
I note in passing that the proponents do not identify in any of their communications to the Court the alleged perpetrator of the suggested ‘equitable fraud’ or the nature or any particulars of the suggested ‘equitable fraud’, or the nature or any particulars of the suggested ‘misapprehension of the law and the relevant facts’. Nor do the proponents explain how it could be sensible to set aside an order for the conduct of an examination after the examination has already taken place.
Anyway, no such identification or particulars or explanation could avail the proponents. The proponents give no authority for the proposition that underlies their proposed summons and their correspondence, namely that the Trial Division of this Court has an ‘inherent jurisdiction’ to set aside perfected orders which ‘have been obtained by equitable fraud and in misapprehension of the law and the relevant facts.’ It is not surprising that the proponents have failed to identify any such authority. What the proponents would say is directly contrary to the firmly established common law principle of finality. That principle was reiterated and applied by M Osborne J in his Honour’s recent judgment in David Barry Logistics v Victoria (No 3).[15]His Honour said (citations included but renumbered):
[15](2022) VR 157, 163–164 [27]–[28]. See also Williams, Civil Procedure Victoria, [I 36.07.0].
27. In Bailey v Marinoff,[16] Barwick CJ stated the following:[17]
[16](1971) 125 CLR 529.
[17]Ibid 530 (emphasis added).
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court.
28. The principle referred to by the Chief Justice was subsequently endorsed by French CJ, Crennan, Kiefel and Bell JJ in Achurch v The Queen.[18] In Achurch, the majority summarised the relevant principles as follows:
[18](2014) 253 CLR 141 (Achurch).
Absent specific statutory authority, the power of courts to re-open their proceedings and to vary their orders is constrained by the principle of finality. That principle was stated succinctly in D’Orta-Ekenaike v Victoria Legal Aid and re-stated by the plurality in Burrell v The Queen:
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened except in a few, narrowly defined circumstances.
As was said in Burrell, the principal qualification to the general tenet of finality is the appellate system. Relevant to the position of the Court of Criminal Appeal of New South Wales, their Honours said:
But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon re-opening of final orders after they have been formally recorded.
The principle protects parties to litigation from attempts to re-agitate what has been decided and serves as ‘the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time’.
…
Consistently with the principle of finality, courts may correct their errors before their orders are formally recorded.
…
Subject to express provision to the contrary, the power [to do so] subsists up to but not beyond the point at which judgment is entered. As Barwick CJ observed in Bailey v Marinoff:
Once an order disposing of a proceeding has been perfected by being drawn up as the record of Court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance… beyond recall by that court.
The rationale for the limiting requirement, that the order to be corrected has not been perfected, is that it provides ‘a readily ascertainable and easily applied criterion’. It also ‘marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.’[19]
[19]Ibid 152–4 [14]–[15], [17] (citations omitted).
For the purposes of the present matter, the only relevant statutory exception to the principle of finality is the appellate structure created by the Supreme Court Act 1986 (Vic). The proponents have declined to proceed in accordance with that structure.
It is true that the common law allows one or two (very narrow) exceptions to the principle of the finality of perfected judgments that dispose of court proceedings. The exceptions include the power of a trial court to set aside a judgment of the trial court for fraud. But this exception requires a proper allegation of actual fraud.[20] The ‘fraud’ exception does not extend to equitable fraud. Thus in Clone Pty Ltd v Players Pty Ltd[21] the High Court said (citations omitted):[22]
The narrow scope of the general power of a court to rescind a judgment for fraud was reiterated after the Supreme Court of Judicature Act in The Ampthill Peerage. In the course of considering whether a declaration of legitimacy could be set aside, Lord Wilberforce compared an application to a court to set aside its own judgment and said that equitable fraud or ‘lack of frankness’ would not suffice to set aside a judgment and that ‘only fraud in a strict legal sense will do’. Similarly, Lord Simon of Glaisdale said that ‘lack of frankness or an ulterior or an oblique or indirect motive is insufficient.’
[20]Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, 194 [57], 195 [62] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). Applied recently by the Victorian Court of Appeal in Tucker v State of Victoria [2023] VSCA 126 [55]–[56].
[21](2018) 264 CLR 165.
[22]Ibid 194 [57].
Much less is there an exception to the abovementioned principle of finality for ‘misapprehension of the law and the relevant facts’.[23] Nor is there an exception for those things in combination with equitable fraud.[24]
[23]Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, especially at 187–195 [43]–[62].
[24]Ibid.
Finally, even where a party or other person proposes to bring a proper allegation of actual fraud in a trial court with a view to setting aside a perfected judgment of the trial court, the appropriate way to do so is not by summons in the completed proceeding. Rather, the proper course is to commence a fresh proceeding, with appropriate pleadings.[25] In Victoria, that should be done by writ and statement of claim. As the High Court went on to say in Clone, an allegation of actual fraud ‘needs to be clearly pleaded and proved’.[26]
[25]Ibid 182–183 [32], 195 [62].
[26]Ibid 195 [62].
It follows that the proposed application would be ‘irregular’ and ‘an abuse of the process of the Court’ within the meaning of r 27.06(1) of the Rules (if that provision of the Rules be applicable) and that the documents in question, if sealed, would be ‘substantially irregular’ and would ‘constitute an abuse of process’ within the meaning of r 28A.04(2) of the Rules (if that provision of the Rules be applicable).[27]
[27]See and compare Putt v Perfect Builders Pty Ltd [2013] VSC 600 [12]-[14], [26]-[27] (Kyrou J); Sea Culture International v Scoles (1991) 32 FCR 275, 279 (French J); Coffey v Secretary, Department of Social Security (199) 86 FCR 434, 444 (Full Court); Re HIH Insurance Ltd (in liq) [2014] NSWSC 774 [19] (Brereton J); Stoops v Lefas [2016] VSC 350, [37]-[38], [50]-[71] (Cavanough J).
Conclusion
For these reasons, I will order that there be no direction to the Prothonotary to accept and seal the documents in question.
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