Did the primary judge misapply the legal principles for going behind a judgment?
41 In ground 2 Mr Dean alleged that the primary judge erred by misapplying the legal principles governing the circumstances in which a court exercising jurisdiction in bankruptcy may go behind a judgment. The argument in support of the ground, however, went further. Without applying for leave to amend the notice of appeal, Mr Selimi contended that the primary judge erred by failing to go behind the judgment. Since no objection was taken to this course, however, I propose to deal with the argument. Together these two propositions were largely founded on the primary judge's remarks at [5], to which I have already referred, and what his Honour went on to say at [6]-[7]:
6 The principles in relation to going behind a judgment have been more recently summarised by Flick J in Ramsay Health Care Australia Pty Limited v Compton [2015] FCA 1207 at 13 to 17 and also in the helpful summary of the principles by Wigney J in Katter v Melhem [2014] FCA 1176 at 69 to 81. Those principles identify of the first question is whether the discretion should be exercised to go behind the judgment.
7 In the present case, the circumstances surrounding the making of the consent order were not addressed by the judgment debtor, nor did the judgment debtor disclose the fact that he had filed a defence or identify circumstances as a result of which it could be said there was a ground to challenge the compromise reflected in the consent orders in the proceedings. In these circumstances, I am not satisfied that the discretion to reopen the judgment should be exercised.
42 Mr Selimi criticised the references in [5] and [7] to the reopening of the consent orders or the judgment. He submitted that this was indicative that his Honour had applied the wrong test, as the court does not reopen a judgment when it goes behind it. The judgment remains on the record, the court is simply not bound to consider it conclusive evidence of the debt.
43 The language his Honour used was certainly inapt to describe the statutory task. When a court decides to inquire into the existence of the debt, it does not set aside the judgment; it has no power to do that: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (Full Court) at 588. Rather, it "goes round the judgment, and inquires into the subject matter" for the purpose of satisfying itself that the petitioning creditor founds his petition on a "good debt": In Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636 (Lord Esher MR).
44 Without more, however, these inapt expressions do not indicate that the primary judge applied the wrong test for determining whether he should inquire into the existence of the underlying debt.
45 In his written submissions, Mr Selimi contended that, while the primary judge cited "the applicable principles" summarised in Ramsay v Compton at [13]-[17] and Katter v Melhem at [69]-[81], the principles were "demonstrably misapplied" because, instead of inquiring into the existence of a genuine underlying antecedent debt, his Honour misdirected himself by inquiring into the separate and distinct question of whether the subsequent compromise was vitiated by duress and by focussing on Mr Dean's failure to set aside the consent judgment. This submission was based on certain remarks of Barwick CJ (with whom Windeyer and Owen JJ agreed) in Wren v Mahony (1972) 126 CLR 212 at 223-4.
46 It is convenient to start with the summary in Katter v Melhem which was adopted by Flick J in Ramsay v Compton. In the present case, as in Katter v Melhem, but unlike Ramsay v Compton, there was no application to have the question of whether to go behind the judgment dealt with separately, in advance of a determination as to whether a sequestration order should be made. In Katter v Melhem, Wigney J said at [69]-[81]:
Relevant principles - "going behind" a judgment
69 The existence of a judgment is prima facie evidence of a debt: Corney v Brien (1951) 84 CLR 343 (Corney v Brien) at 355 (Fullagar J). However, a judgment is never conclusive in bankruptcy and the Court has a discretion to "go behind" the judgment to investigate whether there was a good debt to support it: Corney v Brien at 347 (Dixon, Williams, Webb, Kitto JJ), 353-354 (Fullagar J).
70 The Court will not, however, inquire into the consideration for a judgment as a matter of course: Wren v Mahoney (1972) 126 CLR 212 at 222-223 (Barwick CJ). Whilst the circumstances in which the Court will inquire into the validity of a judgment debt are not closed (Commonwealth Bank of Australia v Jeans [2005] FCA 978 (Commonwealth Bank v Jeans) at [15]) and there is no inflexible rule (Re Wong; Ex parte Kitson (1979) 27 ALR 405; Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708 (Chancliff) at [90]), it is possible to identify a number of guiding principles.
71 First, the Court looks with suspicion on consent judgments and default judgments: Corney v Brien at 348 (Dixon, Williams, Webb and Kitto JJ) citing Latham CJ in Petrie v Redmond (1942) 13 ABC 44 at 48-49. Where the judgment in question is a default judgment, it appears that the Court will always "go behind" the judgment if there is what it regards as a bona fide allegation that no real debt lay behind the judgment: Corney v Brien at 357-358 (Fullagar J).
72 Second, if the judgment in question followed a full investigation at a trial at which both parties appeared, the Court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out: Corney v Brien at 356-357 (Fullagar J). In Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 86, Fry LJ said: "this power has never, so far as I am aware, been extended to cases in which a judgment has been obtained after issues have been tried out before a [c]ourt". In Corney v Brien, Fullagar J said (at 358) that he had not been able to find any such case since Fry LJ made this statement in 1888.
73 Third, where judgment has been entered in pursuance of a compromise, grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened: Corney v Brien at 357 (Fullagar J). That is because it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 (Harrison v Charalambous) at [9].
74 Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not generally be reopened: Corney v Brien at 357. The presumption in such circumstances is that it is difficult, although not impossible, to impugn the compromise: Harrison v Charalambous at [9]. One instance where the Court may go behind a judgment in these circumstances is where both parties knew the original claim was not a bona fide claim and the judgment or compromise was obtained by dishonesty known to both parties: Ex parte Banner; In re Blythe (1881) 17 Ch D 480 (Re Blythe). If, however, counsel had full knowledge of all relevant facts, and no suspicion of unfairness or impropriety in the compromise arises, a court may decline to go behind a judgment submitted to on the advice of counsel: In re A Debtor [1929] 1 Ch. 125; Chancliff at [100]; Smith v Abbott, Stillman & Wilson [2007] FCA 1256.
75 The fact that the debtor may have been pressured by his legal advisers to compromise the claim, despite the merits of his defence, will not generally be sufficient to warrant going behind the judgment entered pursuant to that compromise. That will particularly be the case where the judgment creditor was unaware of, or was not implicated in, the alleged undue pressure: Harrison v Charalambous at [11]…
76 It is implicit in this statement that the mere fact that the compromise may not have been "in accordance with the true merits of the claims made" will not be sufficient to impugn the compromise. Such a circumstance alone will therefore not warrant the Court going behind the judgment.
77 Fourth, the Court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced and would not support a finding that there was, in truth, no debt at all: Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at 589; Olivieri v Stafford (1989) 24 FCR 413 (Olivieri v Stafford) at 431-432 (Gummow J); Re Cosimo Longo Ex parte: Cosimo Longo [1995] FCA 1324 at [23]-[25]; Cumins v Deputy Commissioner of Taxation (2008) 172 FCR 425 at [7]-[10]; Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77 (Re Riviere) at 83-84.
78 The particular circumstances of any given case may no doubt throw up other considerations relevant to whether the Court should exercise its discretion to go behind a judgment. Where the judgment debtor seeks to go behind the judgment on particular grounds, it is difficult to see why it would not be a relevant consideration that those grounds could have been, but were not, raised in opposition to the judgment, or in an application to set aside the judgment. Parties are ordinarily bound by the way they have chosen to conduct litigation. The fact that, for whatever reason, a party did not put particular arguments before the court that made (or refused to set aside) the judgment does not mean that there was no relevant hearing on the merits: Commonwealth Bank v Jeans at [18]-[21]; Olivieri v Stafford at 424 (Beaumont J).
79 The question whether the judgment is to be reopened or "gone behind" at all will usually involve some preliminary investigation of the merits of the attack of the judgment: Corney v Brien at 358. That question can and often is dealt with as a preliminary question: see for example Commonwealth Bank v Jeans. Once the Court decides that it will go behind the judgment "the whole [of the] matter is open": Corney v Brien at 358. Where it is legitimate to go behind a judgment entered after trial, there would effectively be no alternative but to retry the whole case.
80 The parties in this matter did not ultimately ask the Court to decide the question whether the Court should go behind the judgment as a separate preliminary question. The evidence relied on by the parties was relied on for all purposes.
81 It is, however, obviously necessary to first determine whether the discretion should be exercised. If not, it is unnecessary to go further.
47 It can readily be seen that the proposition that the primary judge erred in inquiring into the question of "whether the subsequent compromise was vitiated by duress" and focussing on Mr Dean's failure to set aside the consent judgment is directly at odds with what Wigney J said at [73]. In contrast to his written submissions, however, in oral argument Mr Selimi submitted that Wigney J erred at [73] (and by logical extension, so too, Fullagar J in Corney v Brien at 357) in saying that grounds must be shown for challenging the compromise before the subject matter of the judgment will be reopened. This was not a submission made to the primary judge and I reject it. It is against the weight of authority.
48 In Wolff v Donovan (1991) 29 FCR 480 (Wolff) at 486 Lee and Hill JJ (with whom Davies J agreed, adding some remarks of his own) said:
The existence of the judgment is prima facie evidence of the debt: see Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633 at 636-637. No doubt it will be relevant that the judgment debtor has made no attempt to set aside the judgment although failure so to do may be explained, as it was in the present case, by the fact that the debtor lacked funds to pursue this course. It was, however, made clear by Lord Esher in Re Flatau; Ex parte Scotch Whisky Distillers Ltd (1888) 22 QBD 83 at 85-86 that the court will not go behind the judgment as a matter of course but only if appropriate circumstances are shown to exist.
(Emphasis added.)
49 Indeed, in Re A Debtor [1929] 1 Ch 125 at 127 (which was followed by Cooper J in Re Longo; Ex parte Longo (1995) 57 FCR 523 at 529 and upon which, it will be seen, Mr Selimi relied for another purpose) Astbury J, with whom Clauson J agreed, declined to go behind the judgment where counsel for the debtor failed to show that there was anything in the circumstances of the compromise to justify such a course:
True it is that the Bankruptcy Court may, upon a prima facie case being shown, go behind a judgment for the purpose of satisfying itself that the debt enforceable thereunder was a real debt. But here counsel for the appellant has failed to show anything in the circumstances of the compromise which raises any such suspicion of unfairness or impropriety as to justify this Court in looking behind the judgment to inquire into the consideration for the debt or the propriety of the compromise.
See also Smith v Abbott Stillman & Wilson [2007] FCA 1256 at [18] (Ryan J).
50 In Wren Barwick CJ said at 224:
The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor's debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment : to what is its consideration.
51 But the Chief Justice was at pains to point out that there was no inconsistency between what he was saying and anything said in Corney v Brien.
52 The Chief Justice's remarks should be read in context. Wren was not a case where the judgment debt was the sole foundation for the petition, as the Chief Justice emphasised at 221. To the contrary, the petition relied heavily on the terms of the deed, the obligations under which the debtor allegedly failed to honour, culminating in the entry of judgment against him: see Wren at 216-218. The Chief Justice did not expressly or impliedly rule out a consideration of the circumstances in which a consent judgment is obtained.
53 In any case, it is patently not irrelevant to a determination of whether reason has been shown to question the existence of the underlying debt to consider whether there is reason to go behind the agreement. Indeed, it may be highly relevant. Nor does it follow, as Mr Selimi appeared to suggest, that it is irrelevant whenever the debtor puts on evidence to challenge the underlying debt. As Wigney J explained in Katter at [79], in a passage with which Mr Selimi did not take issue, whether the discretion should be exercised to go behind the judgment usually involves a preliminary investigation of the merits of the attack upon it. That will ordinarily, if not inevitably or necessarily, involve an inquiry into the circumstances in which the judgment was obtained. After all, as his Honour put it in Katter, it is the compromise, rather than the claim that was compromised, which is the foundation for a consent judgment. In such a case it may not be enough to attack the antecedent debt because, unlike a judgment entered after a contested hearing, the consideration for the compromise often involves a number of factors, some of which may be completely unrelated to the debt.
54 Mr Selimi also submitted that it was apparent that the primary judge asked himself the wrong question from a comment his Honour had made during argument. In the hearing below, Mr Selimi took his Honour to the following statement by Astbury J in In re a Debtor at 127, cited by the plurality (Dixon, Williams, Webb and Kitto JJ) in Corney v Brien at 347:
True it is that the Bankruptcy Court may upon a prima-facie case being shown, go behind a judgment for the purpose of satisfying itself that the debt enforceable thereunder was a real debt.
55 Mr Selimi then submitted that "what the applicant debtor needs to show is a prima facie case for going behind the judgment". His Honour responded:
Well I don't think that's the correct principle today … The correct principle is that you have to demonstrate in respect of a compromise where there is a consent order whether there are grounds for challenging the compromise sufficient to the judgment being reopened. So you've got to address the compromise, which is why I draw your attention to the fact in this case your client had filed a defence of then entered into a consent order.
56 The exchange is confusing. If, by these comments, his Honour is to be taken as saying that the debtor does not need to establish a prima facie case for going behind the judgment, then I would respectfully disagree. Indeed, Ms Power, who appeared for Pepper, readily accepted that the test was as Mr Selimi put it, although at times it is expressed differently. In Wren v Mahony, for instance, the Chief Justice did not speak of a "prima facie case", but of "reason [being] shown for questioning whether behind the judgment … there was in truth and reality a debt due to the petitioning creditor". Other cases speak of "substantial reason" (see, for example Re Hughes; Ex parte Geo M Hume Pty Ltd (unreported, Merkel J, 29 July 1997). Indeed, it may be that the phrase "prima facie case" in this context needs to be approached with caution. There is no analogy to the "prima facie case" required in an application for interlocutory relief, where the moving party bears the legal onus of establishing its case, albeit only to a prima facie standard. Here, the debtor does not carry any legal onus. What he bears is a tactical or evidential onus to demonstrate that there is reason to go behind the judgment: Wolff at 487 (Lee and Hill JJ).
57 I do not think that his Honour was disputing these principles. Rather, I think his Honour understood Mr Selimi to be saying that it was sufficient that he show there was a prima facie case that there was no underlying debt. His Honour was concerned that, in the case of a consent judgment, the judgment debtor needed to address the compromise before the Court would go behind the debt. That is consistent with what Wigney J said in Katter v Melhem (at [73]) and with the authorities to which his Honour refers at that point.
58 In any event, comments by a judge in the course of argument cannot provide a foundation for a submission that he or she ultimately applied the wrong test. As Adamson J observed in Dang v R [2014] NSWCCA 47 at [32] (Simpson and Davies JJ agreeing at [1] and [2] respectively):
It is an important part of procedural fairness that a judge will, at times, express views in the course of oral argument. However, judgment is necessarily suspended until all evidence has been adduced and all submissions made. Only then can all matters be considered, a decision made and reasons for decision given in the remarks on sentence. The remarks comprise the reasons. The reasons are not to be discerned from the exchanges in the course of the hearing, since the latter may constitute no more than the articulating of a proposition propounded for the purposes of argument and, at best, the expression of a preliminary view.
59 Unless the judge informs the parties that his or her reasons should be taken from what he or she said in the course of the argument, it is not to the point that the judgment is delivered ex tempore.
60 The remaining questions, then, are:
(a) whether the primary judge failed to consider whether there was a prima facie case for going behind the judgment;
(b) whether his Honour failed to give any weight to Mr Dean's evidence which, it is said, establishes that he is not in debt to Pepper because of a fraud perpetrated upon him by Mr Camiolo;
(c) whether, if so, that would be an appealable error; and,
(d) in that event, whether this Court should come to a different conclusion.
61 In the face of his Honour's reasons, I am unable to conclude that he failed to consider whether there was a prima facie case for going behind the judgment and, hence, that he asked himself the wrong question.
62 On the other hand, I accept that he did not give any weight to Mr Dean's evidence concerning the circumstances in which he came to be saddled with the debt. But I am not satisfied that in doing so, his Honour fell into appealable error and, having regard to that evidence, even if I were I would not come to a different conclusion.
63 Mr Dean's case presupposes that his evidence was entitled to be given any weight.
64 The difficulty lies in the substance and quality of the evidence.
65 At the hearing before the primary judge, Mr Selimi submitted, in effect, that the underlying debt did not exist due to "fraud, in essence, in relation to execution of documents", which he said was "alleged" in paragraphs [22]-[24] of Mr Dean's affidavit. Those paragraphs read:
22 The subject vehicle was allegedly bought using my name and finance documents signed by me to obtain finance. I did not give permission to any person to sign my name or use my signature on any documents or to take possession of a Motor Vehicle in my name.
23 I am informed and verily believe that the subject car was released to someone who posed as Noor Dean. I also understand that at the time of these acts, the said Camiolo was posing to other people that he was Noor Dean, A Solicitor and Principal in the Firm of MLC Lawyers.
24 Weeks went by I heard nothing about the motor vehicle. I believe that my signatures were forged or lifted by the said Camiolo, who had persuaded me that I should take over his substantial business and Companies including his Family Trust and be the sole Director of his companies whilst he dealt with his marital problems and several Court Cases.
66 Importantly, while Mr Dean asserted at [22] that he "did not give permission to any person to sign [his] name or [use] his signature on any documents", he did not deny signing the guarantee upon which he was sued and which gave rise to the judgment debt. Indeed, he did not mention the word "guarantee", let alone, as might have been expected of a lawyer if he was alleging that his signature had been forged on a guarantee, annex the guarantee to his affidavit, point to the signature and state that it was not his or that he did not put it there.
67 Later in the affidavit, at [27], Mr Dean stated that he "underst[oo]d that the Finance Application for a Motor Vehicle was accepted on the basis of some fraudulent Tax Returns this man proffered to the Finance Company including false Bank information". In the following paragraph he said that he "underst[oo]d" that the motor vehicle was received by Mr Camiolo who went to the Moonee Ponds car yard "with an authority allegedly signed by [Mr Dean] and took possession of the said Motor Vehicle". The source of these understandings is entirely obscure. What is more, it is not at all clear what finance application he is talking about, or what the authority presented to the car yard has to do with execution of the guarantee. It is common ground that the guarantee was executed on 5 November 2010. Yet, as I have said, all the events described in the affidavit are said to have occurred in or after January 2011.
68 Quite apart from the fact that the dates render the contents of the affidavit irrelevant, a good deal of the evidence is unreliable on its face. The affidavit was replete with hearsay, conjecture, and inadmissible lay opinions. Mr Dean repeatedly referred to what he understood and believed, instead of what he did, said or perceived.
69 The mere fact that Mr Dean's evidence was not challenged does not mean that the primary judge was obliged to accept it or to place any weight upon it. Nor was his Honour required to go beyond what Mr Dean actually said to draw an inference in his favour to connect these vague and confusing allegations to the underlying debt (such as an inference that Mr Dean's signature on the guarantee document was forged).
70 In any case, even if the evidence is taken to relate to the execution of the guarantee, at no stage did Mr Dean explain why he did not raise the matters in his defence in the Local Court proceedings. Nor did he explain why, in those circumstances, he consented to judgment. Nor did he account for his failure to file a notice of opposition to the creditor's petition or to contest the bankruptcy notice.
71 Furthermore, if the fraud said to "unravel" the underlying debt is that he did not sign any of the relevant documents, that allegation is entirely inconsistent with the defence he filed in the Local Court. His defence was that the vehicle the subject of the hire purchase agreement was never delivered or received and for that reason he had no obligation to make payments to the finance company. In [2] he admitted to signing documents relating to the "alleged purchase" and in the first particular [3] he stated:
On or about 5 Nov 2010, [he] signed the documents in the presence of a representative of Capitol (sic) Finance …
72 While he disagreed with the terms of the guarantee as pleaded, he admitted at [6] to entering into the guarantee.
73 That is not all. The contemporaneous business records tendered by Pepper include numerous statements from Mr Dean in which he acknowledged his liability to Pepper. The following instances are sufficient to illustrate the point.
74 On 24 January 2011, the documents record that during a lengthy telephone conversation with an officer or employee of Capital Finance, David Wilson, Mr Dean said that he understood his obligations under the guarantee and said that he realised now that he should not have done so. On 29 January 2011, in another telephone conversation, the records show that Mr Dean advised again that he understood his obligations "as [they had] discussed 'over and over and over' (these were the guarantors words)".
75 On 3 February 2011, Capital Finance's records indicate that Mr Dean wrote a letter to it in the following terms:
Re: Contract No: 517760
Camiolo Corporation - Breach of Terms & Conditions - Credit
[1] I refer to the above matter and to my discussion since January with David of your Company. I have provided a Personal Guarantee in relation to this financing. I am aware of my responsibilities under the said Personal Guarantee and am cognisant of the fact of breaches leading to referral to a Credit Agency.
[2] Mr. Emannuel (sic) Camiolo who is one of the beneficiaries of the Camiolo trust is presently in possession of the subject vehicle which is financed through your Company. He had undertaken to make regular and timely payments to your Company. This he has not done to-date despite a number of promises and undertakings.
[3] Early this morning, Mr Camiolo advised this office that he intended to refinance the subject vehicle with GE Finance. He is working with a Financial Adviser to reorganise his finances and to pay out Capital Finance at the earliest possible time the outstanding balance plus costs and charges. Mr John Adicho, Managing Director of "Eight Point Capital Pty Ltd" … intends to contact you or David to discuss settlement/repayment plans in respect of this matter. I hereby authorise Mr Adicho to contact you and to provide all information for settlement of the outstanding repayments and to arrange for alternative finance over the subject vehicle.
[4] I also advise that I have resigned as the Director and Trustee of this Company in view of the constant and repeated un-kept promises by my client Mr. Emmanuel Camiolo with regards to repayment. A copy of my resignation and the re-appointment of a new Director is enclosed for your information.
[5] I believe that Mr. John Adicho and 8 Point Capital P/L are able to obtain refinance and thus repay all outstanding monies to Capital Finance.
[6] I therefore seek a further 14 days, to provide through Mr. Adicho alternative plans with your office to pay out the debt due to Capital Finance.
[7] I therefore seek your further indulgence to allow: -
(i) Mr John Adicho to contact your representatives and to discuss payment of the outstanding amount and make suitable payment arrangements,
(ii) the re-financing alternative and
(iii) the provision of a further guarantee from the present director;
76 There followed Mr Dean's name, office address, telephone and fax number and email address. The letter was copied to Mr Camiolo and Mr Adicho.
77 The fourth paragraph of this letter appears to be entirely at odds with Mr Dean's apparent insinuation that his signature had been forged on the letter of resignation from Camiolo (see [65] above).
78 Mr Dean offered no explanation for any of this material. In particular, he did not suggest that he did not make the statements attributed to him or that the letter to which I referred did not come from him. Having failed to persuade the primary judge not to admit these records into evidence, his counsel simply chose to ignore them.
79 Further, neither in [48] nor anywhere else in his affidavit did Mr Dean make any attempt to connect the threats he said Mr Camiolo had made to his decision to agree to judgment being entered against him. He did not say that he was cowed by the threats. Indeed, he said nothing about their effect on him. He did not explain why contesting Pepper's actions would get Mr Camiolo into trouble over the car. He did not identify when the threats were made. (For all we know they could have been made after he signed the consent judgment.) In any case, even if his account were to be taken as a reason for not contesting the proceeding or for failing to file evidence, he did not explain why he actively consented to the judgment. Nor did he explain why, if he had consented to judgment out of fear, he now felt safe enough to air the allegations.
80 During the course of argument in the court below, Mr Selimi acknowledged there was a lack of detail in the affidavit. He also accepted that there was no direct evidence of an actual threat leading to the execution of the consent orders. When his Honour asked him how, then, he could get to "a prima facie case of duress in respect of the compromise", Mr Selimi replied:
Well, in my submission, the prima facie test is satisfied when one has regard to the nature of the character that the applicant feared and if one looks at the content of the matters in paragraph 46 … they're rather graphic - in my submission, in terms of a prima facie case for reopening the matter, it does set out what he fears from this person and the inference that I would invite your Honour to draw is that by reason of the applicant's belief as to the nature of the character that he was dealing with, he feared agitating this matter in open court. And if the truth came out in terms of the criminal dealings of this rogue, then the applicant feared not only for himself but for his family. That is a fair construction of paragraph 46 and that's as high as I can put it on the evidence, your Honour.
81 These submissions were not repeated on appeal. Instead, as I have already explained, Mr Selimi tried to persuade the Court that his Honour was in error in considering this matter at all.
82 The allegations Mr Dean made in his affidavit are very serious but the lack of detail is troubling, particularly as he is a lawyer.
83 Mr Dean had an opportunity to improve his evidence. When the matter was first listed before the primary judge a week earlier he drew counsel's attention to "the potential deficiencies with the affidavit evidence". For some unexplained reason, however, the opportunity to rectify the deficiencies was not taken.
84 In the present case, the evidence in Mr Dean's affidavit fell far short of establishing a prima facie case that the conduct of the alleged fraudster had contributed to Mr Dean's decision to agree to judgment in Pepper's favour or that he did not sign the guarantee and therefore incur the debt.
85 Ms Power of counsel, who appeared for Pepper, contended that any conduct by a third party (like Mr Camiolo) could not be relied upon to impeach Pepper's rights against Mr Dean. Supplementary submissions were filed by both parties on this question, but in view of the conclusion I have reached about the evidence, it is unnecessary to decide the point.
86 Ground 2 of the amended notice of appeal should be dismissed.