Court of Appeal (ACT)|2016-07-22|Before: Elkaim J

Davis Samuel Pty Ltd v Commonwealth of Australia (No 2) [2016] ACTCA 26 (22 July 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Davis Samuel Pty Ltd v Commonwealth of Australia (No 2)

Mr Allan Paul Endresz and Mr William Forge are to pay the respondents' costs of the application.

PRACTICE AND PROCEDURE - application to set aside judgment ex debito justitiae - abuse of process

Supreme Court Act 1933 (ACT), ss 37J, 37E(2)(a), 37O(1)(a)

Court Procedures Rules 2006 (ACT), rr 30, 30(4), 5603, 6906

Craig v Kanssen [1943] 1 KB 256

Crane v Director of Public Prosecutions [1921] 2 ACT 299

In the matter of HIH Insurance Limited (in liquidation; De Bortoli Wines (Superannuation) Pty Ltd & anor v McGrath & ors [2014] NSWSC 774

Self-Represented (Eighth Applicant, also appeared for Ninth, Eleventh and Twelfth Applicants)

1. This application was filed in the Court of Appeal on 8 July 2016. I have sat in this matter as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).

2. The application is stated to be brought on behalf of the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Appellants. These parties, some of whom are corporate entities, were the appellants in an appeal decided by Burns J on 30 June 2016 (Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22).

3. The application was filed by Mr Allan Paul Endresz (the Eighth Appellant) on behalf of himself and the balance of the above appellants.

4. The application before me today could be described as the latest step in a saga of hearings that commenced in June 2008. This was the date that Refshauge J commenced hearing a case in which Mr Endresz was a defendant to an action brought by the respondents.

5. The application seeks a remedy ex debito justitiae. This remedy is often associated with cases in which there has been a denial of natural justice. For example in Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589 Rich J said:

It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v Kanssen, [1943] 1 KB 256 at 262). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial (Crane v Director of Public Prosecutions, [1921] 2 AC 299 at 332-3).

6. The respondents' approach is that I should not consider the application because it is, of itself, incompetent. A number of reasons have been given for this submission. I summarise them as follows:

(a) The court is functus in the proceedings in which the application is made. The only avenue for any amendment to be made to the orders already made in the proceedings would be by way of the slip rule (r 6906, Court Procedures Rules 2006 (ACT)).

(b) The decision of Burns J was a decision of a single judge constituting the Court of Appeal. S 37E(2)(a) of the Supreme Court Act 1933 (ACT) does not allow for an appeal from a judge sitting in this capacity to the Court of Appeal. Accordingly any appeal can only lie to the High Court.

(c) The application is an abuse of process for a number of reasons. These include the existence of an application already made before Refshauge J in respect of which His Honour has reserved his decision.

(d) In addition the respondents have pointed out that to the extent that the application is brought on behalf of corporate entities, those entities are in liquidation and the liquidators have not given their consent to the application.

7. I would add to the respondents' list of preliminary issues that there are no 'statements of consent' provided by the lay applicants enabling Mr Endresz to appear on their behalf. This is with the exception of Mr William Forge who has appeared today and participated in the hearing.

8. It is appropriate to deal with the preliminary points first.

9. I do not agree that the court is necessarily functus. This is because the remedy, assuming it is applicable, must be available even to an apparently final decision. Again using the question of a denial of natural justice as an example, if a decision was made in the absence of a party, without that party having been made aware of the hearing, then the remedy would be available notwithstanding that the decision would otherwise be regarded as final.

10. I also disagree with the respondents' second point. It is correct to say that the decision of a single judge constituting the Court of Appeal is to be treated as a decision of the Full Court. Accordingly the only appeal, subject to the rules of the High Court involving leave, is to the High Court. However, where the remedy is available it is not sought as an act of appeal, rather it is pursued as an exercise of the Court's inherent jurisdiction in relation to its own decisions. This is essentially the same point that I made in relation to the proceedings being functus. Again my decision assumes that the remedy is available.

11. The next issue is whether there is an abuse of process arising from the application in which the decision is presently reserved before Refshauge J. The court has an inherent power to regulate its process and to prevent an abuse of this process.

12. An abuse of process may arise in different ways. These include the pursuit of a claim or remedy that has already been attempted or the failure to pursue the claim or remedy at an earlier or more appropriate time. This may be akin to an estoppel but may also be seen as an abuse of process where there is a fresh application to achieve an unavailable result.

13. In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said that proceedings should be stayed as an abuse of process "if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings" (at 393).

14. In In the matter of HIH Insurance Limited (in liquidation); De Bortoli Wines (Superannuation) Pty Ltd & anor v McGrath & ors [2014] NSWSC 774, Brereton J said at paragraph 23:

Moreover, there may be an abuse of process where the technical requirements of the doctrines of res judicata and/or issue estoppel are not satisfied, for example, where even though the cause of action in the second proceedings could not have been brought in the first, it nonetheless constitutes an attempt to relitigate the same events and subject matter.

15. At the beginning of his judgment, Brereton J referred to a dismissal for an abuse of process "on the basis that the proceedings are frivolous or vexatious and amount to an abuse of process by reason that they amount to an attempt to relitigate matters that have already been determined, or could and should have been determined, in prior proceedings" (paragraph 1).

16. In my view there are two elements to the abuse of process argument in the application before me. First, there are those points taken in the present application which were, could, or should, have been ventilated before Refshauge J. The agitation of those points in this application would, in my view, amount to an abuse of process.

17. Second, there are the points that arise only from the hearing before, and then decision of, Burns J made on 30 June 2016. This category of complaint would involve some act or omission, such as a denial of natural injustice, arising (for the first time) in the proceedings before Burns J.

18. The application is said to rest on one of two bases. The first basis commences:

The Burns Judgment relied upon and confirmed judgments, as amended, made by Refshauge J in the court below on 1 August 2013 and 24 November 2014 (Refshauge Judgments) that are null and void rather than mere irregularities unable to be waived or cured by amendment......

There are then listed complaints about individual "Refshauge Judgments".

19. The application before Refshauge J is dated 26 February 2016. It was heard, and the decision reserved, on 11 May 2016. As with this application, the earlier application was made by Mr Allan Endresz on behalf of a number of other parties.

20. At that stage the matter had not yet been dismissed by Burns J (which occurred on 30 June 2016). A comparison of the parties in each application reveals that all of the parties to the present application were parties to the earlier application. The only difference is that two parties to the earlier application (Kamanga Holdings Pty Ltd and Quancorp Pty Ltd) are not listed in the present application. That difference carries no relevance here.

21. A comparison of the two applications reveals a considerable degree of duplication sometimes involving precisely the same wording. Thus the complaint against Burns J in the first basis in the present application is that he, effectively, ignored the defects in the "Refshauge Judgments". These defects are precisely the subject of the complaints made to Refshauge J in the application made before him.

22. The applicant also says that Burns J should not have proceeded with the hearing before him until Refshauge J disposed of the application that had been filed on 29 February 2016. This point provides a convenient opportunity to deal with a misconception that has clearly, and to some degree understandably, infected the applicants' approach to, and even filing of, this application.

23. The orders made by Burns J are contained in paragraphs 154 and 155 of his judgment. It is necessary to set out paragraph 154:

The appeal will be struck out for want of prosecution under r 5603 of the Court Procedures Rules 2006 (ACT), and the orders made by Refshauge J on 1 August 2013 and 21 November 2014, as amended by his Honour, are confirmed.

24. The words that have led to the misconception appear at the very end of the paragraph where the orders made by Refshauge J are "confirmed". The applicants' reading of this confirmation is that Burns J has specifically endorsed the correctness of the earlier judgments. If that is so, say the applicants, then the defects which are allegedly in the earlier judgments must also infect the judgment of Burns J.

25. I said the misconception was understandable because it involves an understandable reading of the meaning of the word "confirmed". In my view however the confirmation of the earlier judgments is no more than a statement that if the appeal has been dismissed, the judgments remain valid and in force. It is not a statement that Burns J considered argument on any complaints about the earlier judgments and then came to a considered decision that those judgments were correctly made. He has done no more than deal with the application to dismiss the appeal for want of prosecution.

26. The final orders made by Burns J are an expression of the course dictated by s 37O(1)(a) of the Supreme Court Act 1933 (ACT), which states:

(1) The Court of Appeal has the following powers in relation to the order appealed from:

(a) to confirm, reverse of amend the order.....

27. The view I have just expressed was accepted to be correct by counsel for the respondents. The result is that success on the outstanding application before Refshauge J would not be nullified by the order of Burns J that the earlier judgments had been confirmed. If Refshauge J set aside the judgments he had made then, other than perhaps in relation to costs, the judgment of Burns J, although remaining valid, would not affect the orders made in the applicants' favour by Refshauge J.

28. This interpretation is also consistent with the refusal of Burns J to delay the hearing of the application before him until after the application before Refshauge J was dealt with. In fact, it is clear from the transcript that this was recognised by Burns J (at P-58 [25]).

29. Returning then to the matters referred to as the first basis in this application, if they constitute an attempt to address the same arguments that were or should have been contained in the application before Refshauge J, then I think there is an abuse of process. In my view that is the case.

30. In essence, the applications appear identical or, at least, very similar, but for two aspects:-

(a) First, in the application dated 26 February 2016, at point 2 of the 'grounds of application', the applicants state that the judgment and orders were made against all applicants except the first defendant (Davis Samuel Pty Ltd) and the sixth defendant (CTC Resources NL). However, in the current application, at point 1(c), those two parties (Davis Samuel Pty Ltd and CTC Resources NL) are included.

(b) Second, as already noted, Kamanga Holdings Pty Ltd and Quancorp Pty Ltd are not included in this current application, despite being included as applicants in the application of 26 February 2016.

31. There is another point that is relevant. The orders made by Burns J, sitting as the Court of Appeal, are not open to appeal in this court. The currently reserved decision of Refshauge J however, once delivered, will be subject to the normal rules of appeal applying to a decision of a single judge. This emphasises the abuse of process involved in running the same arguments as were canvassed in the application before Refshauge J.

32. Turning now to the hearing before, and decision of, Burns J, the second basis for relief advanced is:

The Court, in the exercise of its inherent jurisdiction, failed to observe the due processes of law and act judicially to avoid rendering the Burns Judgment inefficacious or bringing the administration of justice into disrepute.

33. No allegation is made in respect of the decision, or hearing before, Burns J which would suggest any entitlement to the remedy that is sought. If however, the complaint is that which I have discussed above, in relation to the 'confirmation' of the earlier judgments, then for the reasons that are set out above the complaint obviously falls away.

34. Although strictly unnecessary, I will now deal with the representation issue. The starting point is r 30 of the Court Procedures Rules 2006 (ACT). Under this rule, an individual may start and carry on a proceeding in a court either in person or by a solicitor. A corporation may also participate through a solicitor or, with the court's leave, "by an officer or employee of the corporation authorised by the corporation to represent it" (r 30(4)).

35. Starting with the lay parties, other than Mr Endresz and Mr Forge (who appeared for themselves), none of them appear by a solicitor. There are no letters giving Mr Endresz authority to appear on their behalf.

36. In addition, I think the application must be regarded as a new step in the matter. The decision of Burns J (subject to the result of the decision reserved by Refshauge J) brought the proceedings to an end. I would therefore not be content to rely on any permission granted at an earlier time.

37. Mr Endresz said that he could arrange for written indications of consent from the lay parties if required. Having regard to my final decision on this matter I will not require him to do so. However if any other steps are to be taken in these proceedings he should be aware that this aspect needs to be addressed.

38. The corporate appellants are all in liquidation. They can only act through their respective liquidators. There is nothing to suggest that the liquidators have any involvement in the application. The leave that may be obtained through r 30(4) is not available where the corporation is in liquidation, other than to, arguably, the liquidator.

39. Mr Endresz conceded this point and abandoned the application to the extent that it was made on behalf of any of the corporate entities.

40. Having decided that the application is either an abuse of process (relating to the application before Refshauge J) or without foundation (relating to the decision of Burns J), the application must be dismissed.

41. I discussed this possible result with Mr Endresz and Mr Forge. They accepted that in this event they would have to bear the costs of the application.

(a) The application filed on 8 July 2016 is dismissed.

(b) Mr Allan Paul Endresz and Mr William Forge are to pay the respondents' costs of the application filed on 8 July 2016.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim

Procedures Rules 2006

Davis Samuel Pty Ltd v Commonwealth of Australia

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Judgment (66 paragraphs)

Davis Samuel Pty Ltd v Commonwealth of Australia (No 2) [2016] ACTCA 26 (22 July 2016)

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