Briginshaw v Briginshaw

1. The application for leave to institute proceedings be dismissed, pursuant to s 37AS(2) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 16 February 2018, pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA), the Court made a vexatious proceedings order in respect of Ms Debra Ann Crocker: Crocker v Infa-Secure Pty Ltd [2018] FCA 84 (vexatious proceeding judgment). The order was in these terms, Ms Crocker being the named respondent: 1. Subject to the exception specified in Order 2, the respondent be prohibited, pursuant to section 37AO of the Federal Court of Australia Act 1976 (Cth), from instituting proceedings in the Court. 2. The prohibition specified in Order 1 not extend to any interlocutory application by the respondent in proceeding QUD 9 of 2015 in the Court subsequent to the delivery of judgement in respect of the substantive application in that proceeding or to any appeal by her from that judgement. 3. The respondent pay the applicant's costs of and incidental to the application, to be taxed if not agreed. 2 By s 37AR(2) of the FCA, Ms Crocker, as a person subject to a vexatious proceedings order, may apply to the Court for leave to institute a proceeding which is subject to the order. Ms Crocker has made an application for leave to institute what, on close inspection of her application for leave, is not one but two separate proceedings, each of which is a proceeding that is subject to the order. 3 It now falls to me to decide whether to make an order pursuant to s 37AS of the FCA dismissing Ms Crocker's application for leave or, alternatively, to make an order under s 37AT of that Act granting her application for leave. 4 To the end of deciding which of these alternatives was appropriate, I made directions providing for the filing of written submissions by Ms Crocker. It is permissible to dismiss an application for leave without affording the applicant an oral hearing, even without the consent of the applicant: s 37AS(3). As it happens, Ms Crocker was content that her application be determined without an oral hearing. I have therefore considered both her filed submissions as well as her supporting affidavits. 5 If, after having done this, I were to form the view that her leave application may be granted, it would be incumbent on me not to make such an order without following the procedure specified in s 37AT of the FCA. In effect, what is required by that section is the affording of an opportunity to be heard, and to lead evidence, not just to the applicant but also to prospective respondents and other persons who would be affected by the institution of the proceeding which is the subject of the leave application. 6 As it happens, it is not necessary to proceed to the stage of following the procedure specified in s 37AT. That is because I consider each proposed proceeding to be a vexatious proceeding. That being so, I am obliged by s 37AS(2) of the FCA to dismiss Ms Crocker's application. 7 It may be that the application could also be dismissed pursuant to s 37AS(1), on the basis that her affidavits do not substantially comply with s 37AR(3) of the FCA. That subsection requires that an applicant for leave must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under s 37AR; and (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of s 37AR; and (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. The requirements of s 37AR(3) could doubtless be met by the filing of more than one affidavit prior to the determination of the application for leave. I have therefore examined each of Ms Crocker's affidavits to determine whether she has complied with s 37AR(3). She does not, in the text of her affidavits, mention her unsuccessful application to this Court for the review of a sequestration order made by a registrar, proceeding QUD 345 of 2016: Infa-Secure Pty Ltd v Crocker [2016] FCA 1319 (bankruptcy judgment). QUD 345 of 2016 was in terms of s 37AR(3)(b) of the FCA, a proceeding that Ms Crocker instituted in an Australian court. By coincidence, I was the trial judge in that proceeding. In a practical sense, there is therefore no embarrassment occasioned by the omission, because the existence of the proceeding is well known to me. 8 To proceed on this basis is not to downplay the need for candour as to the past on the part of an applicant and the related relevance of past litigious behaviours and outcomes in deciding whether or not to grant leave, Gargan, in the matter of Gargan [2018] FCA 871, at [17] per Mortimer J and Croker, in the matter of Croker [2019] FCA 359, at [12] per Lee J. It is just to recognise that the requirement is meant to serve the interests of justice, not, in circumstances such as the present, yield an injustice. In any event, it appears that Ms Crocker did "substantially comply with subsection 37AR(3)" as she only failed to mention one proceeding. 9 Related to my knowledge of and involvement in the earlier cases, I have expressly considered whether it is apt for me to determine whether to grant leave. That Ms Crocker is aware that consideration of whether to grant leave has fallen to me is apparent from her exchange of correspondence with the Registrar in relation to her application. She has raised no objection. That aside, I do not consider that my particular prior involvement could give rise to an apprehension of bias in relation to the determination of the leave application any more than it could be said that a judge could never entertain an application for leave to appeal from his or her interlocutory judgment. My task is to look to the proposed proceeding and Ms Crocker's related affidavits and submissions and form a view as to whether each proposed proceeding is apt for a grant of leave or, on one or more of the bases specified in the definition in s 37AM(1) of the FCA, is a "vexatious proceeding". That, necessarily, I formed a view in the past as a precursor to the making of a vexatious proceeding order does not mean that, on the current materials, I am or could be seen reasonably to be predisposed to form the same view. 10 In relation to the granting of leave under s 37AR of the FCA, I am, with respect, much taken with the following general observations made by Mortimer J in James v WorkPower Inc [2018] FCA 2083 (James v WorkPower Inc), at [31], in relation to the purpose of requirement for a prior grant of leave by a judge: 31. Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. 11 As with the provision in James v WorkPower Inc which stipulated a requirement for a prior grant of leave, so, too, is it a purpose of the discretion found in s 37AS and s 37AT of the FCA to provide a filter. Relevant to the disposition of a leave application is, inter alia, consideration of whether each proposed proceeding is a vexatious proceeding. 12 In order to obtain a grant of leave, Ms Crocker is not obliged to prove to demonstration that the proceeding concerned must succeed, only that the proceeding is reasonably arguable. Related to that, the context and purpose of the discretion also dictate that an applicant for leave must show that the proceeding concerned is not a vexatious proceeding. These are really different sides of the same coin. 13 Ms Crocker wishes to institute a proceeding in which she claims the following relief, "The respondent committed fraud against the Federal Court of Australia and the applicant is therefore seeking relief of the court to file the attached draft application." The respondent she names is "Infa Secure Pty Ltd acn 149173660". As I observed in the vexatious proceeding judgment, at [13], by reference to a conclusion which I had reached in the bankruptcy judgment: In the bankruptcy judgment, I concluded, on the evidence, which materially included a number of searches of the records of the Australian Securities and Investments Commission, that there is no legal entity by the name "Infa Secure Pty Ltd" and, more particularly, that there was no corporate entity of that name. Ms Crocker has offered no evidence in her affidavits which would serve to call into question that conclusion. In form, each proposed proceeding names as a respondent an entity which does not in law exist. It is, though, evident enough from her leave application that her intended respondent in each proposed proceeding is Infa-Secure Pty Ltd ACN 149 173 660 (Infa-Secure). Ms Crocker's claim of "fraud against the Federal Court of Australia" is that Infa-Secure committed fraud in the obtaining of the vexatious proceeding order. 14 In her draft originating application, Ms Crocker calls in aid r 667 and r 668 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) as the source of a power to set aside a judgment or order of the Court obtained by fraud. The UCPR are applicable to State courts in Queensland, not to this Court. There is, however, cognate provision in r 39.05(b) of the Federal Court Rules 2011 (Cth) (FC Rules). Thus, the error of reference would be of no moment if there were a reasonably arguable case of fraud raised. 15 As to the pleading of fraud, r 16.42 of the FC Rules provides: Fraud, misrepresentation etc A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies. 16 Ms Crocker does not include with her application for leave any draft statement of claim. She does though also annex to it what looks to be a separate draft originating application in which she seeks, also against Infa-Secure as respondent, again incorrectly named by her, that, "Final orders in QUD9/2015 are struck out and new orders are made subject to information now available to lend to the belief the orders were obtained via fraud." 17 Proceeding QUD 9 of 2015 was an application by Infa-Secure to restrain Ms Crocker, the respondent in that proceeding, from making false, misleading or deceptive representations about it. Following the delivery of a judgment in which the Court (Reeves J) directed the bringing in of proposed minutes of orders to give effect to the reasons for judgment: Infa-Secure Pty Ltd v Crocker (No 3) [2018] FCA 605 (Infa-Secure v Crocker (No 3)) - that proceeding culminated in the Court making the following orders on 17 May 2018: THE COURT DECLARES THAT: 1. The threats made by the Respondent in an email sent by her to Ms Chrysiliou on 5 November 2014, and in an email sent by her to Mr Van Der Westhuizen, Ms Chrysiliou, Ms Lynne Milham and Mr Matthew Horsfall on 1 June 2017, to bring an action or proceeding in respect of an infringement of copyright with respect to packaged child safety restraint devices bearing any of the names "Securap", "Secur-Ap" or "Securall" (collectively "the Device") were unjustified. THE COURT ORDERS THAT: 2. The Respondent, whether by herself, servants or howsoever otherwise, is restrained from: (a) threatening to bring an action or proceeding in respect of an infringement of copyright related to any example of the Device; and (b) aiding, abetting, counselling, or procuring any such threat. 3. The Respondent, whether by herself, servants or howsoever otherwise, in trade or commerce, is restrained from: (a) making any of the representations set out in the schedule to this order ("the Prohibited Representations") or any other statements or claims similar to the Prohibited Representations; and (b) aiding, abetting, counselling, or procuring the making of the Prohibited Representations or any statements or claims similar to the Prohibited Representations. 4. The Respondent pay the Applicant's costs of the proceeding, to be taxed if not agreed. 18 I therefore proceed on the basis that Ms Crocker seeks leave to institute two proceedings against Infa-Secure, one which seeks to have set aside the vexatious proceeding order, the other which seeks to have set aside the order made in QUD 9 of 2015 on 17 May 2018. What follows must be read in conjunction with the reasons for judgment earlier delivered by me in the bankruptcy judgment and in the vexatious proceeding judgment. 19 In each draft originating application, Ms Crocker makes this allegation: I was not prohibited from naming the business itself in its unregistered form as per the UCPR as follows and the court should not have allowed any other party ie company or corporate trustee to stand in place of the party I named as my first former respondent. The evidence found in trial material in QUD9/2015 in the affidavit of Richard Horsfall shows clearly that the respondent did not purchase any rights in the alleged business transaction and neither did it have any involvement with any product I sought relief of the court for. The respondent allegedly purchased the business operations and nothing else. This is an alleged fact which is also questionable because the NSD410/16 document shows that a transaction for the sale of the business, stock at value and other took place on the 7 February 2011yet the contract provided to the court in QUD 9/15 shows the contract was entered into on the 1 March 2011… clearly there are two contracts, not one. 20 Once again, an erroneous reference to the UCPR will be noted. In the FC Rules, there is a cognate rule, r 9.52, which permits a proceeding to be instated against a business name in the following circumstances: Proceeding against a business name (1) A proceeding may be started against a business name if: (a) the proceeding relates to anything done, omitted to be done or otherwise related to a business carried on by a person under that business name ; and (b) the person's name is not registered in any register mentioned in paragraph 9.51(1)(b). (2) If a proceeding is brought under subrule (1), the business name is sufficient designation of the person in any process. (3) Any judgment or order made in the proceeding may be enforced against the person. The reference to "register mentioned in paragraph 9.51(1)(b)" is a reference to "a register in a State or Territory in which the business is carried on and discloses the name and residential address of the person". 21 Ms Crocker's reference to "NSD410/16" is a reference to a proceeding instituted in the Court's New South Wales District Registry, on 24 March 2016, NSD 410 of 2016, Britax Childcare Pty Ltd ACN 006 773 600 v Infa Products Pty Ltd (Administrators Appointed) ACN 092 222 994. That was an application to set aside a deed of company arrangement. Following a judgment delivered by Burley J on 28 July 2016: Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848 (Britax Childcare v Infa Products), that proceeding culminated in the dismissal with costs of the plaintiff's amended originating application on terms more particularly set out in an order made by Burley J on 29 September 2016. In Infa-Secure v Crocker (No 3), at [5], Reeves J found that Infa Products Pty Ltd was a "corporate predecessor" to Infa-Secure, also operated by the Horsfall family. 22 Ms Crocker makes many statements in her principal supporting affidavit in respect of her leave application (the other affidavit asserting that information in her principal affidavit was not hitherto known to her). I have considered whether, given their nature, these statements ought to be reproduced in this judgment. I consider that it is necessary to set them out as made in order to explain why it is that the case is not one apt for a grant of leave in respect of either proposed proceeding. Ms Crocker has stated: 2. Infa Secure Pty Ltd acn 149 173 660, via its legal representatives, committed an act of perjury on the 12 January 2015 in proceeding QUD9/2015. 3. At the hearing, it was stated by legal counsel that the injunction was entitled to be filed as the applicant to QUD9/15 had been deemed to have been served. 4. Justice Dowsett, on the verbal statement of Infa's counsel accepted that service had been deemed to have taken place and allowed the injunction to proceed. 5. At this time, I was subjected to orders prohibiting my communications. 6. By his own admission, Matthew Horsfall, by way of affidavit sworn and forwarded to me, states that his company being the applicant to QUD9/15 had obtained a copy of the documents via its lawyers but had not been served. Exhibit DAC 1 paragraphs nine and ten. 7. From there, lnfa filed a statement of claim with information not relevant to my proceedings of QUD647/14. Specifically, that Infa (applicant) had purchased a business from an alleged predecessor however, it does not describe that at any time did the business have anything to do with the product of SECURAP, being the only product subject to my former claim. The only claim is at paragraph 8 stating the applicant discontinued the product in favour of another. 8. This differs from information provided by the acting lawyers to QLD Police and Federal Ministers in 2014 where it is described that the alleged predecessor of 092222994 still had the product in 2014. 9. This would further indicate a perjury in the Federal Court passing off the wrong entity as having a legal claim of entitlement to my former proceedings. 10. There has been a long and convoluted argument regarding my former first named respondent which I understood to be Infa Secure Pty Ltd acn 092 222 994 taken from the abn records of 79 981 302 631 however, despite the lawyers knowing this was the correct entity as they were already representing them in the Britax v Infa Secure Pty Ltd proceedings in the FCA, the lawyers conspired or determined to give the documents of my originating application to the wrong party. It appears that the failure to use abn or acn identity is a deliberate one to allow illegal phoenix activity. 11, This is further highlighted in the NSD410/16 document attached at Exhibit DAC 2 where it is described that 092222994 sold a business which was an assembly and sales business in 2011 to the applicant Infa Secure but the seller/vendor maintained ownership of all intellectual property until December 2015 where it was allegedly sold at an auction. Again, the legal representatives were Chrysiliou Lawyers who later became creditors to 092 222 994 and had to subsequent change their firm to Chryslegal Pty Ltd t/a Chrysiliou Lawyers in late 2015 to enable them to continue to represent the Infa/Horsfall entities. In fact, there are three significant sales identified in the NSD410/16 documents demonstrating that at no time could Infa Secure Applicant to QUD9/2015 considered it had any legal rights before the court whatsoever in my proceedings. 12. Exhibits DAC 3 - 6 are evidences to the lawyers knowing at all times which of the Infa entities had possession of the Securap product demonstrating collusion in the perjury committed on the Federal Court of Australia. There is a further letter to retailers provided by a copyright Infasecure demonstrating yet again that it has been deliberate in the creation of confusion to disallow me to understand the correct identity of the party with my product. 13. Exhibit DAC 7 is a copy of a costs order for an unidentified Infa Secure Pty Ltd void of ACN and void of a footer in the document leaving it unknown as to who filed the document. 14. Further, on the second page at the base it is clearly demonstrated that the true entity behind the legal proceedings and the true and correct client of the lawyers is an Infa Products Pty Ltd where it reads Infa Products Pty Ltd v Britax Childcare/ Crocker. 15. The Infa Products Pty Ltd demonstrated on the bill is the alleged predecessor, still had possession of the product at the date the bill of costs was submitted and was formerly Infa Secure Pty Ltd. 16. It is absolutely impossible for the most part to understand what illegal phoenix activity has been engaged in however, it is apparent that a perjury has taken place resulting in a serious miscarriage of justice and committed by a party and its lawyers determined to beat the system. 17. There can be absolutely no doubt that the respondent has committed numerous offences in an effort to confuse the matters and facts and as a result of blatant perjury, has interfered with legal proceedings the respondent had no standing before the court in relation to. 18. I am seeking an immediate order for orders via Chambers on the evidence that the applicant Infa Secure Pty ltd acn 149173660 to QUD9/2015 has no standing before the court today as a party not ever served with my originating documents by its own admission [sic] 23 I have set out these statements because, in the absence of any draft statements of claim, they offer the only particularisation of Ms Crocker's claims of fraud giving rise to her claimed entitlement to have the judgments concerned set aside. Ms Crocker's statements are contrary to considered conclusions reached on the evidence in the bankruptcy judgment, the vexatious proceedings judgment and in Infa-Secure v Crocker (No 3). They also entail a misunderstanding of Britax Childcare v Infa Products. Ms Crocker may well be in a state of confusion, but her confessed confusion is not evidence of fraud. 24 In each of her proposed proceedings, the standard of proof of fraud warranting the setting aside of the judgments would be governed by s 140 of the Evidence Act 1995 (Cth) (Evidence Act). Ms Crocker would not be obliged to prove her claimed fraud beyond reasonable doubt, only on the balance of probabilities. But in deciding whether her claim was so proved, the Court would take into account the considerations mentioned in s 140(2) of the Evidence Act. As to that, a grave allegation such as fraud would not be regarded as established by "inexact proofs, indefinite testimony or indirect references": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. 25 An examination of her affidavits discloses that, in truth, Ms Crocker has no new evidence or even evidence which she might with due diligence have earlier obtained. All that she has in her principal affidavit is an intemperate, confused, piecemeal collation drawn from the earlier cases. At most, and this is a considerable concession to her, she has in her collation "inexact proofs, indefinite testimony or indirect references". Moreover, she does not even present the prospect of ever having more than that. So I am quite unpersuaded that she has an arguable case for the setting aside on the basis of fraud either the vexatious proceeding order or that made in Infa-Secure v Crocker (No 3). It follows that the other relief which she claims, which includes "compensation" could not be granted. 26 Instead, each proposed proceeding looks to me to be one which is "without reasonable ground". As to what constitutes "without reasonable ground", I respectfully agree with the observations made by Charlesworth J in Rana v Department of Defence [2018] FCA 1642 at [78], by reference to her Honour's earlier judgment in Garrett, in the matter of Company One [2016] FCA 703. The phrase is equivalent to 'without reasonable cause' and whether so to conclude is a matter to be determined objectively, not by reference to the subjective belief of the applicant for leave. On this basis alone, I am obliged by s 37AS(2) of the FCA to dismiss Ms Crocker's leave application. It may also be that each proposed proceeding has as its purpose to harass or annoy or to cause detriment to not only Infa-Secure but also to members of the Horsfall family. Such a conclusion would also make each proposed proceeding a vexatious proceeding and dictate a refusal of leave. It is unnecessary to reach that conclusion, because of my conclusion that each proposed proceeding is "without reasonable ground". The latter conclusion would also bespeak a conclusion that each proposed proceeding would be an abuse of process. That, too, gives rise to an obligation to refuse leave. 27 Having regard to the foregoing, it might seem a waste of judicial time to have to deal with applications such as the present. In truth, that is not so. In Fuller v Toms (2015) 234 FCR 535 (Fuller v Toms), at [31], the Full Court observed, of the purpose of s 37AO of the FCA: Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance. Dealing with an application made under s 37AR of the FCA is in furtherance of that same statutory purpose. A person subject to an order made under s 37AO of the FCA such as Ms Crocker does not, on the making of such an order, forfeit the important civil right of being able to access the judicial power of the Commonwealth. Rather, for cause, the availing of that right is made subject to the requirement of first obtaining the leave of the Court. Once again, the purpose of that is to ensure that the balance described in Fuller v Toms is maintained. 28 For these reasons, leave must be refused and, instead, the application for leave dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.