Brookfield v Davey Products Pty Ltd

"As I pointed out to the applicants in the course of submissions, time is marching on. It is critically important to the applicants that if evidence is available to support the allegations identified, the proceedings now contemplated by them and contemplated at least for a considerable period of time, should be instituted and pursued with vigour." 5 On 25 September 1998, I ruled that an application to declare null and void a bankruptcy notice served on Mr Brookfield on 31 July 1998 should be dismissed. The application was out of time, having not been brought within the time fixed by ss 41(6A) and (7) of the Bankruptcy Act 1966 (Cth). 6 The threatened proceedings then came to be instituted. On 27 November 1998, by notice of motion in the proceedings in which the primary judgment was given, Mr Brookfield applied for orders to set aside the primary judgment claiming that the judgment proceeded "on a misapprehension as to the facts and the law" and that it was "obtained by extrinsic fraud". As noted above, the avenues of appeal normally available to an unsuccessful litigant had been explored and exhausted. The basis of that motion simply alleging error of fact and law must be rejected. However, the claim has been allowed to proceed to date on the basis of the allegation of "extrinsic fraud". It has been the common position of Mr Brookfield and Davey Products that he should be entitled to have the primary judgment set aside if it were procured by fraud on the part of Davey Products. 7 There is some doubt that the means by which Mr Brookfield sought to achieve that end, namely by notice of motion in the proceedings in which the primary judgment was entered rather than in fresh proceedings, was procedurally correct. An application to set aside a judgment on the ground that it was procured by fraud, once the appeal processes have been exhausted, is a new action in equity: see Jonesco v Beard [1930] AC 298 at 300 ("Jonesco"), although that would not have the consequence that the present application is a nullity: Hip Foong Hong v H. Neotia & Co [1918] AC 888. Davey Products has not formally objected to the competency of the proceedings "instituted" in that way, but claims that directions should be given that the proceedings should continue as separate proceedings if they are to continue so that the normal steps available for the conduct of a proceeding should be available to it. In directions given from time to time, thus far, I have endeavoured to secure that end, without undue procedural complexity, as Mr Brookfield has for most of the time not been represented by solicitors.

THE COURSE OF THE CURRENT CLAIM 8 On 25 February 1999, Mr Brookfield was directed to file and serve points of claim by 7 May 1999. He did not comply with that direction. The time to do so was extended to 17 June 1999. Points of claim were filed and served on 18 June 1999. Although the notice of motion of 27 November 1998 was in Mr Brookfield's name only, the points of claim purported to be on behalf of both the applicants. 9 On 14 September 1999 I directed Davey Products to file and serve points of defence by 24 September 1999. Davey products at that time foreshadowed that it would apply to dismiss or permanently stay the proceedings on the ground that no cause of action in fraud was pleaded, and on other grounds. It duly applied by motion to do so on 23 September 1999. On 12 April 2000, judgment was given on that motion refusing to dismiss the application, but an order was made that certain particulars of the points of claim be given. Included in the points of claim were allegations that Davey Products "concealed from the Court and the applicants" certain significant and discoverable documents in the course of the conduct of the action leading to the primary judgment, and that Davey Products "deliberately withheld" from the applicants documents relating to the extent of the failures of Lowara pumps and instructed its solicitors to defend that claim on grounds which it knew to be false. They also alleged that Davey Products instructed its solicitors to assert as the cause of failure of certain pumps a cause which it knew to be false. They also allege that Davey Products had destroyed documents, which had been withheld from discovery, during the course of the appeal process from the primary judgment. I rejected claims made by Davey Products that the present claim should be dismissed or stayed because the decision of O'Loughlin J gave rise to either an issue estoppel or a res judicata. I was also not satisfied that the present claim amounted to an abuse of the process of the Court, on the basis that the applicants were seeking to litigate a case which had already been dealt with in the stay proceedings. However, I considered that the points of claim failed to properly provide particulars of fraud or dishonesty as required by O 11 r 10 of the Federal Court Rules, I directed that those further particulars should be provided. In my reasons for judgment at the time, I set out in some detail the nature of the particulars which should be provided. In any action based on fraud, the particulars of fraud must be given exactly. 10 By consent, the matter was adjourned then to 21 July 2000 whilst the parties explored private mediation. The mediation did not take place as Mr Brookfield expected. From time to time, he had the matter called on for further directions to facilitate the mediation. He also raised without notice requests for orders for discovery from time to time. As he was told on at least more than one occasion, it was necessary for him to give to the Court and to Davey Products advance notice of what orders he wished the Court to make with respect to the private mediation, and to provide affidavit evidence of the facts upon which he was relying to seek those orders. 11 On 4 September 2000 I extended to 18 September 2000 the time for the applicants to file and serve their particulars of the points of claim as directed in accordance with the reasons published on 12 April 2000. In an endeavour to progress the matter, I also directed the applicants to inform the respondent's solicitors in writing 18 September 2000 as to precisely what further orders for discovery were sought and as to the facts upon which it is asserted that those discovery orders should be made including how the applicants claim that Davey Products has the documents for which discovery was sought. The respondents were to reply by a fixed time. That was to enable the parties to identify what matters of fact about discovery were in issue. I then directed the applicants to file and serve such affidavits as support their request for discovery to the extent that it was then disputed, prior to the next directions hearing on 26 October 2000. The applicants did not comply with that order. They had not provided the particulars ordered. 12 On 26 October 2000 I extended the time for the applicants to comply with the order for the provision of particulars, and to the extent necessary the claim for further discovery, to 3 November 2000. In a further endeavour to progress the matter, I also directed the applicants to file and serve a document setting out all interlocutory orders sought by them by 3 November 2000, and for the respondent similarly to give notice in writing by 8 November 2000 of any interlocutory orders which they sought, including if so advised any application to dismiss the proceeding. I fixed the next directions hearing for 10 November 2000. I indicated at the time that I would on that occasion give directions as to how any contentious interlocutory proceedings would be disposed of. Again, the applicant did not comply with those directions. 13 On 10 November 2000, the applicants did not appear. Mr Brookfield had sent a letter to the Court indicating that he would not attend because he proposed to attend a mediation of the matter in Sydney. He did not file any affidavit evidence as to whether that was a mutual arrangement. Davey Products appeared. Its counsel indicated that it did not agree with Mr Brookfield's claims concerning the mediation. I made orders in the absence of the applicant yet again extending to 22 November 2000 the applicants' time to comply with the previous orders. I further directed the applicants to file and serve a document setting out all interlocutory orders sought by the applicant in the proceedings by 22 November 2000, to the intent that no further interlocutory orders would be sought after that date. I further directed the applicants to file and serve all affidavit material they proposed to rely upon in respect of each of the interlocutory orders which they sought by 22 November 2000. I further directed that no factual material could be presented upon the hearing of any application by the applicants in support of any such interlocutory order except by affidavit material filed in accordance with that direction except by leave of the Court. I made similar directions with respect to any interlocutory application of Davey Products. I also gave directions for Davey Products to notify the applicants of those directions, and I am satisfied that it did so in a timely manner. The respondent had by that date informed the applicants of its intention to apply to dismiss the application. The next directions hearing was fixed on 18 December 2000. 14 Shortly before the directions hearing on 18 December 2000, the applicants did file a further affidavit. It described how, in August 2000, Mr Brookfield visited dealers of Davey Products in the inner metropolitan area of Melbourne seeking information as to their dealing with Lowara pumps, and that he learned that they had a high failure rate. He "compiled" that material for senior counsel to be briefed for a mediation in September and October 2000. He asserts that a mediation agreement was signed on 3 October 2000 and that he then proceeded to Sydney on 9 November 2000 when he learned that Davey Products would not participate in the mediation. The affidavit exhibits a mediation agreement signed by Mr Brookfield and signed on behalf of Davey Products, but not by the mediator. It has an addendum dated 3 October 2000 that Davey Products (now Yevad Products Pty Ltd) would participate in the mediation only if the parties agreed on a timetable at the preliminary conference for the disclosure of each party's case and the hearing of the mediation and that the Brookfield interests prior to the mediation indicated the claims they made and their bases and a detailed formulation of the amounts they claimed. He says that he is preparing a brief for the Australian Federal Police as a result of his enquiries, and proposes to pursue charges of perjury and fraud in light of the fresh evidence he has received (which he has not put before the Court except in the very general way described). He concludes that affidavit by saying that he has no control over the time frame that the Australian Federal Police will take to conduct its investigation but he expects to be advised from time to time by them. 15 Davey Products issued the motion of 6 December 2000. In addition to the application to dismiss the proceeding, in the event that that application was unsuccessful they identified the interlocutory orders sought to prepare the matter for trial. That motion was supported by affidavit. I note that, inter alia, it establishes that Septic Products Australia Pty Ltd ("Septic") is no longer registered. The liquidator assigned the rights to any legal action Septic had against Davey Products to Mr Brookfield so as to authorise him to pursue the action on behalf of Septic, and the liquidator resigned as liquidator of Septic in September 1998. 16 No notice was given by the applicants of any orders to be sought on 18 December 2000. On that occasion, Mr Brookfield attended. He sought orders, without any affidavit material to support them, (1) to enable Mr Brookfield to subpoena two named employees of Davey Pumps Pty Ltd to be cross-examined as to the adequacy of the discovery previously given in the proceeding in which the primary judgment was given, and (2) that Davey Products identify in the affidavit and annexures of Dallas Wilsdon of 30 July 1995 filed in the proceeding in which the primary judgment was given as to where the pump failures experienced by six named proprietors of identified business are identified, and (3) that Davey Products make enquiries of each of its State officers around Australia for material that they currently have in their possession relating to failures of the Lowara range of pumps, and (4) that 810 pages of material, access to which Mr Brookfield has been provided by Davey Products be supported by affidavit on oath as to the source of those documents, that is who had possession of them from the time of the original order of discovery in the proceedings in which the primary judgment was given. 17 Mr Brookfield made a number of assertions of fact which he claimed warranted those orders. Counsel for the respondent objected to the Court acting on allegations of fact without affidavit material in support of them. In the light of my previous directions, I indicated that I would not have regard to the assertions made by Mr Brookfield unless they were supported by affidavit. That was not the first occasion he had been told that. He did not then indicate that he wished for further time to support those claims by affidavit. As no proper factual foundation for the making of those orders has been made out, despite the directions previously given, I decline to make them. It is not necessary to consider whether the orders sought could properly be made in any event.

CONSIDERATION OF THE DISMISSAL MOTION 18 The Court has, in the directions given in this matter from time to time, including the indulgences granted to the applicants, been mindful of Mr Brookfield's position as a litigant now appearing in person. In the Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 ("Wentworth") Kirby P, with whom Hope and Samuels JJA agreed, said at 536-537:

"the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly illexpressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out." 19 In this matter, it has been the applicants theme as I understand the points of claim, that Davey Products fraudulently concealed documents from the Court and from the applicants in the course of its discovery in the proceeding in which the primary judgment was given. In Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 ("Quade") the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) addressed whether an appellate court should set aside a judgment on the ground of fresh evidence becoming available after the trial. Their Honours said at 141-142 that there is a stringent rule in that ordinary class of case, supported by considerations of both justice and public interest, that the appellate court should be persuaded that if the new evidence had been available at the trial and had been adduced, an opposite result would have been produced or that it was highly likely that an opposite result would have been produced, and further that reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial. 20 That general principle that a judgment, regularly obtained, should not be disturbed without some insistent demand of justice, was also enunciated in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 per Williams, Webb, Kitto and Taylor JJ agreeing with Dixon CJ at 444. It is desirable in the public interests that there be finality in litigation in other than the truly exceptional case. In Quade, their Honours then said at 142:

"The position is, however, different in a case such as the present where the unavailability of the evidence at the trial resulted from a significant failure by the successful party to comply with an order for the discovery of relevant documents in his possession or under his control. The application to that category of case of the general rule that a new trial should only be ordered on the ground of fresh evidence if it is "almost certain" or "reasonably clear" that the opposite result would have been produced if the evidence had been available at the first trial would, particularly where the failure was deliberate or remains unexplained, serve neither the demands of justice in the individual case nor the public interest in the administration of justice generally. In so far as the demands of justice in the individual case are concerned, it will cast upon the innocent party an unfairly onerous burden of demonstrating to virtual certainty what would have happened in the hypothetical situation which would have existed but for the other party's misconduct. In so far as the public interest in the administration of justice generally is concerned, it would be likely to ensure to the successful party the spoils of his own default and thereby encourage, rather than to penalise, failure to comply with pre-trial orders and procedural requirements." 21 It was in the light of that observation that on 12 April 2000 I declined Davey Products' application to dismiss the proceeding or to strike out the particulars of claim. 22 Davey Products contends that the course of the proceedings now demonstrates that the maintenance of the claim is an abuse of the process of the Court: O 20 r 2 of the Federal Court Rules. It acknowledges that the order sought should be made only in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Walton v Gardiner (1993) 177 CLR 378 at 393. In Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 it was pointed out that the categories of abuse of process are not closed. 23 I have reached the view that the present proceedings do constitute an abuse of the process of the Court. There are a combination of factors which lead me to that view. The applicants have not provided proper particulars of the fraudulent conduct alleged against Davey Products, despite the gravity of those allegations. The persistent failure to provide such particulars, particularly in the face of repeated directions by the Court to do so, itself suggests that the applicants made those allegations without the capacity properly to particularise them: cp. Nolan v Administrative Appeals Tribunal (1997) 47 ALD 689. The persistent refusal to comply with the directions of the Court, despite the indulgences granted from time to time, is conduct which cannot be tolerated indefinitely. The procedures of the Court, including the giving of directions from time to time, are intended to ensure that matters which come before the Court are dealt with fairly and expeditiously. They are to ensure procedural fairness for both applicants and respondents. The applicants in this matter have clearly demonstrated that they will not comply with the Court's directions in a timely fashion. Even in the face of the motion of Davey Products, the applicants have not proffered the particulars ordered either immediately or at any time in the future. It is unfair to Davey Products to be confronted with such serious general allegations without proper particularity (as O 12 r 5 of the Rules recognises). It has been facing those general allegations since 27 November 1998. Yet the Court is being asked to allow the applicants' claims to proceed despite that non-compliance with the Rules, and with its directions, apparently indefinitely. 24 Moreover, the applicants' persistent failure to comply with the directions given, not just in relation to the particulars, or to endeavour to do so, has meant that the matter has been adjourned from time to time without progressing at all. There is no proven foundation for the orders which the applicants now seek to pursue, and no warrant therefore for the making of those orders. The applicant has not sought a further extension of time within which to provide the particulars which have been ordered. Despite the attempts of the Court to procure or to direct the applicant along a more conventional path for the conduct of this litigation, those attempts have proved fruitless. As far as I can see, the applicants are pinning all their hopes upon the Court making the orders in the nature of discovery which are set out above, of which no notice was given and for which no evidentiary foundation was provided. As they are refused, presumably the applicants seek to await the outcome of the putative prosecution which they hope will ensure. They have not indicated how otherwise they proposed to progress the matter. Mr Brookfield was conscious, as I noted as early as August 1998, of the need to have material available to confidently assert fraud in a proper way before proceeding with his claim. Either his subsequent investigations have revealed a picture much more extensive than that which he anticipated, or he has abandoned that consciousness when instituting and maintaining these proceedings. 25 As is apparent from the orders which the applicants now seek, they are more in the nature of orders for a general inquiry into the quality of the discovery given by Davey Products in the proceeding leading to the primary judgment. The nature of those orders now sought also suggests to my mind, in conjunction with the way the applicants have conducted the proceeding to date, that they are intent upon using the proceedings as a vehicle for some form of inquiry as to the extent to which that discovery was inadequate, and as to the reasons for that suspected inadequacy. I think that purpose involves seeking a collateral advantage beyond that which the applicants are entitled to: cp. Second Life Decor Pty Ltd v Comptroller-General of Customs (1994) 53 FCR 78. In reaching that view, I am mindful of the claims of the applicants that they were deprived of a fair trial in the proceeding leading to the primary judgment by reason of the inadequate discovery of Davey Products. That issue was addressed by O'Loughlin J in the reasons for decision given on 19 May 1998. I suspect that the applicants' claims (that is, the suspicions of the applicants as to the inadequacy of that discovery) are more extensive than they were presented at that time. The Court should be slow to allow procedural failings on the part of the applicants being the cause of their inability to redress injustice caused by Davey Products' failing to give proper discovery. But that is but an allegation at present, and the target of such an allegation is entitled to be protected by the Court's procedures to ensure such an allegation is determined fairly and in a timely manner. The applicants have, by their conduct of the proceedings to date, shown that the Court's directions to achieve a fair and expeditious resolution of that allegation will not be complied with. 26 Accordingly, I have reached the view that the conduct of the present proceedings by the applicants does amount to an abuse of the process of the Court.

THE APPROPRIATE ORDER 27 Order 20 r 2 empowers the Court, in such a case, to stay or dismiss the applicants' claim. I propose to stay the claim made by motion of 27 November 1998 until further order, rather than to dismiss it. Whether that is properly described as a permanent stay is a moot question. Any stay order may be the subject of an application that it be lifted. I intend, by that order, to avoid a claim that the order finally determines the rights of the parties on the question which the motion raises so as to give rise to any issue estoppel or res judicata: Cooper v Williams [1963] 2 QB 567. I adopt that course because, if it be the case that Davey Products' discovery in the proceeding leading to the primary judgment was deliberately and significantly inadequate, the public interest in the administration of justice would not be served by securing to Davey Products the spoils of that default because of the way in which the present claim has been conducted. I have had regard to the difficulties which confront a litigant in the circumstances of the applicants in procuring evidence to make out their allegations. It has already been found that its discovery was less than full, but beyond that I do not intend to give any indication to suggest that the applicants' allegations are correct. They are but allegations. If they wish to revive their claim, however, they will now need the leave of the Court to lift that stay order or be faced with the prospect that any fresh proceeding will itself be dismissed. I anticipate that the stay order will not be lifted unless the applicants seek leave to pursue fresh proceedings, properly and fully pleaded, and supported by cogent affidavit evidence in a form which would be admissible at trial, in terms in which the interests of the public in the administration of justice may lead to the relief then sought. Of course, I cannot and do not determine what factors will be relevant to the exercise of any such discretion if the Court is called upon to exercise it. Clearly, though, further delay on the part of the applicants will expose them to the risk that Davey Products may suffer prejudice by or during that delay so that a fair trial of any claim is no longer possible. 28 I see no reason why the costs of the applicants' motion of 27 November 1998 (that is, the current proceeding), and including the costs of the present motion of Davey Products, should not be taxed and paid by the applicants to Davey Products. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate: Dated: 22 February 2001 Counsel for the Applicants: The applicant, Ian Walter Brookfield, appeared in person

Counsel for the Respondent: Mr J White with him Mr S Hannaford