Mr Kevin Davies was an applicant together with Triclops Technologies Pty Ltd in intellectual property proceedings brought against Lazer Safe Pty Ltd. The proceedings concerned a patent that related to a safety system. They were commenced in 2015. After a final hearing, the claims by the applicants were dismissed in May 2018: Judgment was entered accordingly. An appeal by Mr Davies and Triclops was dismissed in 2019: In both the first instance proceedings and the appeal, all parties were legally represented.
Acting on his own behalf, Mr Davies now seeks to bring an interlocutory application in the proceedings that were dismissed at first instance more than seven years ago. The documents were emailed to the registry in July and August 2025. A judge of this Court directed that the documents not be accepted for filing without the Court's leave. By originating application dated 16 October 2025, Mr Davies now seeks such leave in respect of documents which he has described in the following terms:
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1. Core hearing pack (materials the applicant will refer to in detail)
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1.1. Interlocutory Application.pdf set-aside/review (r 39.05(b), s 23), freezing relief, and return to quantum pathway.
1.2. Applicant's Affidavit #7.pdf - document-led record; also seeks acceptance of filing.
1.3. Annexure KD030 - Schedule A (Proposed Summary Declarations) to Affidavit #7.
1.4. Annexure KD031 - Pin Schedule supporting Schedule A to Affidavit #7.
1.5. Registrar's letter (KD028 p.86) - direction to seek leave; basis for oral hearing request.
1.6. Written Submissions - Grounds to seek leave.pdf
Additional supporting materials (Additional material that may be references at hearing, to be filed if leave given)
2.1. Applicant's Affidavits #1-#6.pdf - background and prior evidentiary record.
(Confidentiality sought under s 37AF on s 37AG(1)(a) ground.)
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2.3. Preliminary Submissions - grounds for judgment review.pdf - not to be referenced as submissions for leave, would exceed the 10 page limit
2.4. History of IP-2 Infringement Procedure & Product Descriptions (2025-09-30).pdf - Internet research on how the Product Description pathway rolled out, not submissive
2.5. Certificate of Urgency (NCF10).pdf
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The proposed interlocutory application is a 29 page document. It contemplates an application to which Lazer Safe and an additional individual are respondents. The additional individual is described as 'Ex-Parte Respondent to a Freezing Order Application and Proposed Respondent for Full Joinder'. It appears that the interlocutory application seeks to invoke a form of show cause procedure. It asserts a prima facie basis to set aside, vary or review the final determinations made in the proceedings. It appears that the basis for that claim is some species of fraud. The proposed form of interlocutory application contemplates some form of process by which the Court will determine on the papers whether specified aspects of the reasons by the primary judge given for the judgment dismissing the proceedings were:
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procured by actual fraud (a meditated attempt to keep the Applicants and the Court in the dark), proved to the [Briginshaw] standard; or
otherwise warrant relief under r 39.05(b), s 23, or the Court's inherent/equitable jurisdiction (including reckless non-disclosure and abuse of the PD process).
(original emphasis, paragraph numbers omitted)
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For the following reasons, leave is refused to file the proposed interlocutory application and all the other supporting documents.
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Mr Davies seeks to reopen the previous proceedings to which reference has been made. The Court regards finality as fundamental to any civilised and just judicial system. The reasons for this were explained in Rogers v The Queen[1994] HCA 42; (1994) 181 CLR 251 at 273 (Deane and Gaudron JJ). There is injustice if a party is required to litigate afresh matters which have already been determined by the courts. Decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct. Consequently, the circumstances in which the Court will reopen a case after a final hearing and appeal are very confined: D'Orta-Ekenaike v Victoria Legal Aid[2005] HCA 12; (2005) 223 CLR 1 at [34]- [36].
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In his submissions in support of his application for leave to file the proposed documents, Mr Davies explains what he seeks to do in the following way (referring to himself in the third person as the applicant):
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The path advanced is thus deliberately narrow. The applicant does not seek, at this stage, to institute a fresh cause of action to impeach the judgment. Rather, he seeks to invoke the Court's powers ... to re-open limited aspects of the existing proceeding where there is a realistically arguable case that key findings (particularly at [265]‑[279]) were procured on a materially incomplete and misleading product‑description record, as later contradicted by manuals KD101-KD107. Those impugned paragraphs underpinned the ultimate non-infringement result. The proposed re-opening is confined, targeted and document-led.
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Mr Davies also refers to what he describes as 'fresh documentary evidence' and says that it bears on 'the integrity of the earlier process'. He says that an affidavit of 21 April 2025 'provides an initial narrative of the alleged fraud'. Later he says that he alleges 'actual fraud, in the sense that the Court was deceived as to the true operation and capabilities of the relevant systems by materials controlled by the respondent'. Mr Davies refers to authorities concerned with the confined circumstances in which a Court will overturn a judgment on the basis that it has been obtained by fraud.
It is evident that what Mr Davies seeks to do is to impeach the findings made in the previous proceedings by seeking to adduce further evidence. This is not to assert any recognisable form of fraud of a kind that would justify reopening the proceedings: as to which, see Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed)[2018] HCA 12; (2018) 264 CLR 165; and the summary by Perry J in Commissioner of Taxation v Rawson Finances Pty Ltd[2023] FCA 617 at [57]- [58], [62]-[63]. Rather it is an attempt to litigate afresh that which has been decided. It is an attempt to advance additional evidence to challenge findings that were made. To set aside a final judgment that has been upheld on appeal there must be some form of dishonesty that has affected the integrity of the court process. Reference to evidence that was not before the Court, or other points that may have been made, are not a basis for alleging fraud.
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Further, when it comes to fraud, the Court is especially vigilant to ensure that there is a proper basis for such a serious allegation. It requires details to support the claim of fraud. Those details must expose a basis upon which a conclusion of fraud could be reached. There must also be a reasonable basis to support the details being advanced. Where lawyers are involved, the Court relies upon the discharge by them of the professional obligations when it comes to allegations of fraud. Where a litigant in person seeks to raise a claim of that kind 'the Court must be satisfied that there is some evidentiary basis for the claims made': Frigger v Trenfield (Application to Adjourn Final Hearing)[2025] FCA 71 at [29].
Further, as I explained in Azad v Avant Insurance Limited (No 2)[2025] FCA 853 at [1]‑[9], all applicants in this Court have a responsibility to set out a clear and concise summary of what is alleged to have happened that is relevant to the claim and why those events, if proven, mean that there is a recognised basis for a legal claim. Detail is no substitute for clarity when it comes to the discharge of this obligation.
The proposed interlocutory application provides no clear and concise statement of the alleged material facts said to amount to fraud of a kind that would be a sufficient foundation for any claim to set aside the decisions that have been made.
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It is obvious that the documents are fundamentally deficient in identifying any basis upon which a claim may be advanced to set aside the decision by the primary judge (in respect of which an appeal was dismissed). They simply do not provide any detail which might found an application of the kind that Mr Davies seeks to bring. Further, the obligations just described have not been met by Mr Davies by the documents that he seeks to file.
In addition, Mr Davies now seeks to pursue an application for a form of asset preservation order (or freezing order) in aid of his alleged substantive claim. In addition to the failure of the documents to articulate any basis in fraud to disturb the finality of the Court's previous determinations, there is a failure to demonstrate a danger of the kind that might justify the making of a freezing order: Deputy Commissioner of Taxation v Huang[2021] HCA 43; (2021) 273 CLR 429 at [18] (Gageler, Keane, Gordon and Gleeson JJ).
Also, Triclops is not named as a party to the proceedings. Another problem with the proposed interlocutory application is that it seeks to proceed within the proceedings that have been determined, when the appropriate course in advancing an application to set aside a judgment on the basis of alleged fraud is to commence fresh proceedings: see Clone Pty Ltd.
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Mr Davies sought an oral hearing on his application to file the documents. He has been given an opportunity to make written submissions. Those submissions expose the nature of the claim that he seeks to advance, being a claim of fraud that is said to be a sufficient foundation to set aside a judgment entered after a final hearing that was not disturbed on appeal.
As these reasons expose, the issue for consideration is whether leave should be given to file documents. They can be considered on their face. I am not persuaded that the determination of this matter would be aided by an oral hearing having regard to the nature of the issue that falls for consideration. Mr Davies has been afforded an opportunity to provide written submissions where he has advanced the legal arguments he seeks to present. There is no factual issue that needs to be determined. The outcome is obvious. In those circumstances, I am satisfied that s 20A(2) of the Federal Court of Australia Act 1976 (Cth) applies to the application for leave to file documents.
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Accordingly, the application by Mr Davies is dismissed.
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I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.