Di Carlo v Dubois & Ors

SUPREME COURT OF QUEENSLAND

CITATION: Di Carlo v Dubois & Ors [2007] QCA 316

PARTIES: SALVATORE DI CARLO / (plaintiff/applicant) / v / PHILIP JAMES DUBOIS / (first defendant/first respondent) / PHILIP DUBOIS (MEDICAL) PTY LTD ACN 010 673 864 / (second defendant/second respondent) / DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O'ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES / (third defendant/third respondent) / MICHAEL CORONEOS / (fifth defendant/not party to appeal) / SALVATORE DI CARLO / (respondent/applicant) / v / PHILIP JAMES DUBOIS / (first applicant/first respondent) / DENNIS RICHARD OSBORNE, PHILIP JAMES DUBOIS, STEPHEN BENNETT KELLER, PIYOOSH KOTECHA, GARY EDWARD O'ROURKE, MARK JAMES READY, PETER STOREY, CHARLES BRUCE LEIBOWIZ , PETER CHARLES LUSH, NICHOLAS DAUNT, DAVID ALEXANDER NOBLE, PETER FERGUS LEGH trading under the firm name or style of QUEENSLAND X-RAY SERVICES / (second applicant/second respondent) / MICHAEL CORONEOS / (not party to appeal)

FILE NO/S: Appeal No 1388 of 2006 / Appeal No 3622 of 2007 / SC No 1281 of 1996 / SC No 412 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time/General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 28 September 2007

DELIVERED AT: Brisbane

HEARING DATE: 17 September 2007

JUDGES: Keane and Muir JJA and Cullinane J / Judgment of the Court

ORDER: 1. Application for extension of time in Appeal No 1388 of 2006 refused / 2. Application for extension of time in Appeal No 3622 of 2007 refused / 3. Applicant to pay costs of the respondents in each application on the indemnity basis

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant's action against respondents was dismissed – where applicant's appeals to Court of Appeal and High Court were dismissed – where applicant seeks further appeal in reliance upon fresh evidence – whether extension of time should be granted / APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant brought new action to set aside judgment on basis of fraud – where claim and statement of claim struck out – whether extension of time should be granted to allow applicant to appeal / Beil v Mansell (No 1) [2006] 2 Qd R 199; [2006] QCA 173, applied / Boughen v Abel [1987] 1 Qd R 138, applied / Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, applied

COUNSEL: The applicant appeared on his own behalf / G A Thompson SC, with P L Feely, for the respondents

SOLICITORS: The applicant appeared on his own behalf / Flower & Hart Lawyers for the respondents

1. THE COURT: The applicant was the plaintiff in an action for damages for personal injury allegedly inflicted by the negligence of the present respondents on 29 May 1993. While the applicant was undergoing a CT scan administered by the respondents, he suffered an anaphylactic reaction to a contrast agent with which he had been injected for the purposes of the CT scan. The applicant, who was at the time receiving psychiatric treatment for the symptoms of post-traumatic stress disorder, claimed that he suffered a serious degeneration in terms of the symptoms of this existing disorder by reason of his reaction to the contrast medium. His case against the respondents was that he had told a neurosurgeon, Dr Coroneos, who had been treating him, that he did not want to be injected for the purposes of the CT scan, and that Dr Coroneos had passed this instruction on to the respondents.

2. The applicant commenced his action against the respondents and others, including Dr Coroneos, on 14 February 1996. The action was tried in November 2002, after an earlier trial was aborted in October 2001 upon the applicant's seeking leave to amend his statement of claim. The action was dismissed against the respondents by judgment delivered on 16 July 2003. The learned trial judge held, inter alia, that no instruction of the kind which the appellant allegedly gave Dr Coroneos was passed on to the respondents.

3. The applicant appealed against the judgment. That appeal was dismissed by this Court on 7 May 2004. On 21 March 2005, the High Court of Australia refused the applicant's application for special leave to appeal.

4. There are now two applications before this Court whereby the applicant seeks to be permitted to renew his claims against the respondents.

5. Before we discuss the arguments agitated in this Court, it is necessary first to summarise the nature of the applications before the Court, then to set out in some greater detail the material evidence at the trial of the action in November 2002 and the reasons for judgment of the learned trial judge.

The applications

6. On 27 January 2005, the applicant located the CT scan images produced on 29 May 1993. More than a year later, on 20 February 2006, the applicant sought an extension of time within which to file a further notice of appeal to this Court against the decision of 16 July 2003 in reliance upon the CT scan images. This application is CA No 1388 of 2006. In it the applicant seeks a new trial of the original action. The grounds of the proposed appeal are:

Fresh evidence has been found since the judgment which is of probative value and significance that taken with the evidence already given at the trial will in all probability decide issues in favour of the applicant.

The fresh evidence tends to establish that the judgment was obtained by the fraudulent evidence of the witness, Graham Brown.

The fresh evidence consists of:

Photographic images of the CT scan taken by the respondents of the applicant's head and cervical spine on 29 May 1993.

The fresh evidence shows that the respondents put forward a fraudulent case at the trial.

7. On 30 August 2006, the applicant filed an application in this Court seeking relief from the obligation to disclose the CT scan images to the respondents. This application was, in the end, not vigorously pursued, and was dismissed on 18 October 2006. The application was misconceived, there being at that time no appeal on foot which raised any question as to the relevance of the CT scans, much less whether the applicant had an obligation to disclose the CT scan images. On the hearing of that application, Senior Counsel who then appeared for the applicant indicated to the Court that CA No 1388 of 2006 would be discontinued once a new action had been commenced to set aside the judgment on the ground that it had been procured by fraud.

8. On 15 January 2007, the applicant filed a claim and statement of claim seeking to set aside the judgment of 16 July 2003 on the basis that it was obtained by fraud on the part of the respondents. The respondents applied to have the new action struck out. On 28 March 2007, the new claim and statement of claim were struck out by the Chief Justice. The applicant filed a notice of appeal against this decision on 28 April 2007, ie one day late, as the result of an oversight by the applicant's research assistant. This matter is CA No 3622 of 2007. The applicant seeks an extension of time within which to file the notice of appeal in CA No 3622 of 2007.

9. The applicant argues that this Court should apply a liberal approach to the determination of his applications so that justice can truly be done. It must be borne in mind, however, that the applicant seeks by the applications now before this Court to reverse the outcome of litigation in respect of events which occurred more than 14 years ago and which, on the face of things, concluded in favour of the respondents more than two years ago. The determination of these applications depends on the application of legal principles which reflect the importance of finality in litigation.

10. Of the several reasons for circumspection on the part of the court in allowing litigation to be re-opened, the first in importance is the consideration that interest rei publicae ut finis sit litium (the public interest requires an end to law suits).¹ One must also acknowledge the length of time which has elapsed since the events which gave rise to this litigation. The law recognises that the prospects of a fair trial of issues, which must ultimately be determined by reference to the credibility of oral testimony about events which occurred long ago, fade with the passage of time.² In order to explain the nature of the issues, it is necessary to turn to the evidence in the original trial.

The evidence at trial

11. The applicant is, and was at relevant times, a practising barrister. The first respondent, Dr Dubois, is a radiologist. The second respondent is a company on behalf of which it is alleged the first respondent was acting in the provision of radiological services and medical treatment to the applicant. The third respondent was a medical partnership of which the first respondent was a member. It was alleged that the third respondent was acting for the first respondent in the provision of radiological services and medical treatment to the applicant. Dr Coroneos, who was the fifth defendant in the proceedings but is not a respondent to either of the applications before this Court, is a specialist neurosurgeon and a friend of the applicant.

12. The following facts were undisputed at trial. The applicant believed that he had a brain tumour. In May 1993 he went to see Dr Coroneos who advised that, although he was almost certain there was no growth as the applicant feared, the applicant should have a CT scan to put the matter beyond doubt. The applicant and Dr Coroneos went to the third respondent's premises on 29 May 1993 where they met the first respondent and Mr Brown, a radiographer employed by the second or third respondent, who carried out CT scans using a contrast agent injected into the applicant's bloodstream. It was not disputed that the applicant suffered a severe reaction to the contrast agent which the learned trial judge found exacerbated an existing post-traumatic stress disorder.

13. The applicant swore that he had told Dr Coroneos that he did not want any invasive test or one involving risk. Dr Coroneos accepted that that was so. He agreed that he had advised the applicant that there were no risks and that a plain CT scan was all that was required. Dr Coroneos gave evidence that he requested a plain CT scan of the first respondent and that he was not consulted about the taking of a scan enhanced by the use of the contrast agent. Nevertheless such a scan was taken. Although Dr Coroneos was present when the applicant suffered his reaction and had to be given emergency treatment, his evidence was that he did not mention to the first respondent or anyone else that the procedure was contrary to his instructions.

14. Against the defendants, other than Dr Coroneos, the applicant alleged that he was unaware that he would be subjected to a CT scan using contrast agent, that he did not consent to the procedure and that he was not warned of the risks attached to it.

15. The applicant gave an account of a conversation between himself and Mr Brown which included Mr Brown's saying to him, "You'll just feel a little prick". He said he felt something go into his arm and he then suffered an immediate reaction. He "instantaneously started choking, suffered from instantaneous fear … and felt as though his eyes and tongue were swelling". It may be observed that, even on the applicant's account of events, he did not express any objection to being injected with the contrast medium.

"The next step was to place a tourniquet on the patient's arm to find a vein. The patient at this time was out of the scanner in a position where he could access the arm. The radiographer would then draw up the contrast into a syringe by means of a canula. He would check to find if the vein was accessible, swab the area with an alcohol swab and insert a butterfly needle into the vein, securing it with tape. He would then insert the syringe into the fitting and tell the patient that he was going to inject him, that he may feel a warm feeling and maybe a funny taste in his mouth. It would last for about 30 seconds and then go away. He said that he referred to 'injection' not to 'feeling a prick'. The last mentioned word was one that he deliberately avoided using. The injection of the contrast itself took about 15 seconds because of the viscosity of the agent and the time from commencing giving the information about possible sensations to the completion of the injection would be of the order of 30 seconds. After the injection was finished he would disconnect the syringe and go from the room to take the images. With cervical scans it was necessary to come and go from the room, after each image was taken, to realign the machine.

Mr Brown said that he had almost completed the cervical scan when, about 6 or 7 minutes after the injection, the plaintiff said he was having trouble breathing. Mr Brown formed the opinion that he was having a reaction to the contrast and requested medical help. Both Dr Dubois and Dr Coroneos came into the room. He rejected the proposition that the plaintiff had reacted adversely almost as soon as the injection began."

The findings of the learned trial judge

17. The learned trial judge found the evidence of the applicant unreliable. His Honour did not comment specifically on the reliability of Mr Brown's evidence but implicitly accepted his evidence as to procedures followed in relation to administration of CT scans at the time in question. The evidence of Dr Coroneos, that he had relayed to the respondents the applicant's request that he not be injected with a contrast medium, was rejected by the learned trial judge.

18. The learned trial judge did not accept that Dr Coroneos requested a plain scan or that the applicant believed such a request was made. Further, his Honour did not accept that the applicant was not asked about relevant risk factors prior to the administration of the contrast. His Honour found that the applicant was given no direct warning of possible risks arising from a CT scan using a contrast agent; nevertheless, his Honour held that the applicant failed to discharge the onus of proving that he would not have undergone the procedure had he been directly warned. In consequence of these findings the learned trial judge held that the first, second and third respondents did not breach any duty of care to the applicant.

19. It is far from apparent that the difference between the evidence of the applicant and Mr Brown, concerning the timing of the applicant's adverse reaction to the injection of the contrast medium, was of any importance at all to the trial judge's findings that the applicant had ample opportunity before the injection was administered to object to that course if he truly did not consent to that course, and that Dr Coroneos had not relayed to the respondents the applicant's instruction in this regard. In relation to these matters, the learned trial judge said:

"Unfortunately, the best evidence on this issue is unobtainable. Each of the images taken on the day would have had the time imprinted on it. However, the practice did not archive the photographs and electronic images were only kept for 6 to 12 months after the procedure. The plaintiff gave evidence that his copies could not be located. He was unsure whether he had ever had them. He looked where he kept his other X-rays and at his chambers but had not found them. He said that he only looked for them about a week before the trial when a request was made by the solicitors for the first to third defendants. He was unaware whether they contained information that would throw light on the issue of how far into the procedure it was before he had his reaction.

I am satisfied that the plaintiff's recollection of the timeframe of the proceedings cannot be accurate. The evidence of how the procedure is performed and a lack of any reason to suppose that the procedure was not followed in this case is inconsistent with his evidence. There are separate steps of putting on the cuff to find a vein, insertion of the butterfly needle, and the explanation of possible sensations (even if it was brief). In my view the steps prior to the injection would cause a person whose firm intention was not to have an invasive procedure to question what was happening. The opportunity to do so existed for sufficient time for the process to be questioned. Depending on the view of the evidence taken there was about a minute to four minutes involved. The view just expressed is not intended to suggest that failure to do so of itself would constitute consent to the procedure in all circumstances. The fact that no question was raised at the time about what was happening is a circumstantial fact which, along with others, points to the conclusion referred to later."⁴

The fresh action

20. In the fresh action, the applicant seeks an order that the judgment entered against him on 16 July 2003 be set aside on the ground that it was obtained by fraud. He also seeks an order that "costs made subsequent to the judgment be set aside, including appeal costs" and that "proceeding No 1281 of 1996 be re-listed for a trial". The statement of claim alleges that Mr Brown gave false evidence to the effect that:

(a) The applicant's adverse reaction to the injection occurred some six or seven minutes after the injection; and

(b) The procedure was almost completed before the reaction occurred.

21. It is alleged that, contrary to Mr Brown's evidence, the applicant's reaction occurred immediately after the injection, no "slices" were taken immediately after the injection, the procedure was suspended and the plaintiff was taken to an emergency care unit.

22. This case concerning Mr Brown's alleged false evidence is built around two propositions. The first is the evident falsity of the assertion by Mr Brown of a recollection concerning relevant events in about March 2002, and at the time of the trial, despite an earlier assertion in a statement to the respondents' former solicitors on or about 29 August 2000 that he had no such recollection and despite the circumstance that he had no documentary evidence from which he could refresh his recollection. The second proposition is the allegation that Mr Brown's second statement was made only after the respondents' solicitors Flower & Hart made numerous requests for the applicant to confirm that he did not have possession of the images of the CT scan and after such confirmation was given. The requests for such confirmation are said to support the inference that it was only after Mr Brown could be assured that no documentary evidence would be forthcoming to contradict his version of events surrounding the CT scan procedure that he was prevailed upon to profess a recollection which he did not have.

23. It should be said immediately that the evidence before the primary judge shows that the respondents' requests for the CT scans commenced after Mr Brown had given his second statement. And, indeed, the particulars furnished by the applicant of these allegations state that these requests were first made in November 2002, ie well after Mr Brown's second statement was given.

The contentions of the parties

24. The respondents contend that the applicant's delay since his discovery of the CT scan images should disqualify him from the favourable exercise of any discretion in this Court to permit him to continue to prosecute his claim against them by either of the applications before the Court. The respondents point particularly to the circumstance that the applicant, a practising barrister, cannot claim to be ignorant of the rules of procedure, and that his delays exhibit a degree of disregard for the rules of procedure and the rights of other parties.

25. The applicant, on the other hand, relies upon evidence by Prof Warwick Middleton, a psychiatrist who has treated the applicant, to the effect that the applicant's delays are examples of avoidant behaviour which are sequelae of the trauma associated with the incident of 29 May 1993 rather than evidence of any intentional disregard for the rules of procedure.

26. It is well-established that the Court's discretion to extend the time for an appeal under r 748 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") is unfettered.⁵ It may be accepted, for the sake of argument, that Prof Middleton's evidence does provide some support for the view that the applicant should not be regarded as having deliberately or recklessly flouted the rules of procedure. That having been said, however, the exercise of this Court's discretion in relation to the extension of time to allow the further pursuit of the applicant's claim against the respondents cannot be determined without taking into account the circumstances that the applicant has had a trial on the merits and an appeal from the judgment rejecting his claim, and that the respondents' case, that they did the applicant no wrong, has been vindicated by each court by whom the claim has been considered.⁶

27. It is of great importance in the administration of civil justice that litigation is not allowed by the courts to become an instrument of harassment and oppression.⁷ There is, objectively speaking, an undeniable element of vexation in the applicant's insistence on attempting to maintain his appeal in relation to the original action and, at the same time, pursuing an action to have the judgment in the original action set aside. It has long been established that the pursuit of the same relief by two causes of action in separate proceedings between the same parties is presumptively oppressive.⁸ This element of vexation is aggravated in the present case by the circumstance that, contrary to the intimation made to this Court in October 2006, the applicant did not withdraw CA No 1388 of 2006 once his new action had been commenced. It therefore falls to this Court to determine which of the two proceedings, if any, should now be allowed to continue.

The extension of time for the appeal: CA No 1388 of 2006

28. It is clear, we think, that this Court should not extend the time to enable a second appeal to proceed. In this regard, in addition to the considerations we have already mentioned, there is the circumstance that this Court has heard and determined the applicant's appeal in relation to the original judgment. Even if this Court's functions in relation to the original action are not exhausted, the authorities show that the usual course is to leave the applicant to pursue the remedy of an action to set aside the original judgment for fraud.¹⁰

29. There is no reason at all not to follow that course here. No real prejudice would be caused to the applicant if this course were to be adopted: at best for the applicant, the resolution of CA No 1388 of 2006 in his favour would result in a new trial. The applicant has already pleaded the basis on which a new trial should proceed in the action the subject of CA No 3622 of 2007. And this Court was told, on the applicant's behalf, that CA No 1388 of 2006 would be withdrawn once the fresh action had been commenced: there can hardly be any real prejudice to the applicant in his being required to honour the indication freely given to the Court on his behalf.

The new action: CA No 3622 of 2007

30. As to the new action, this Court would exercise its discretion to facilitate the further prosecution of this action if there were apparent merit in the contention that the applicant has suffered a miscarriage of justice by reason of fraud by the respondents.

31. It is well-established by authority that, so far as an action to set aside a judgment on the ground of fraud is concerned, the court must be satisfied that there is a real prospect of the fraud alleged being established. In Wentworth v Rogers (No 5),¹¹ Kirby P, as his Honour then was, stated the following principles:

"First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.

Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment; Cabassi v Vila (at 147, 148); Baker v Wadsworth (1898) 67 LJ QB 301; Everett v Ribbands (at 145, 146). The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Sheddon v Patrick (at 643).

Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment." (emphasis added)

32. These principles were stated in the context of a decision summarily disposing of a statement of claim: the application of these principles is decisive against the applicant. In argument in this Court, the applicant relied heavily on the observation by Kirby P, earlier in his reasons in Wentworth v Rogers (No 5),¹² that an application to strike out a statement of claim which seeks to set aside a judgment on the ground of fraud should succeed only where the claim is "manifestly groundless", and where to allow it to proceed "would involve useless expense" in accordance with the well-known formulation of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW).¹³ Kirby P suggested that the General Steel test and the heavy burden placed on a party who seeks to set aside a judgment alleged to have been procured by fraud may be reconciled on the basis that: "The existence of a previous judgment and the need, in the public interest, to bring litigation of issues to a close, may make the task of the court, in an application to strike out a statement of claim, easier to perform."¹⁴

33. In any event, in Queensland, the position has been authoritatively stated by Connolly J in Boughen v Abel¹⁵ where his Honour adopted the approach of Herring CJ in McHarg v Woods Radio Pty Ltd.¹⁶ Connolly J said:

"There are however limits to the right of a party to prosecute such litigation. At 498 Herring CJ said:

'In considering actions of this kind the Courts have naturally been pressed by the necessity in the public interest of putting some limit to litigation. And they have refused to allow such actions to proceed, unless satisfied that there was a reasonable probability of the fraud alleged being established. Thus when an application is made to stay proceedings, the burden is not on the defendant, as in an ordinary action, to show that the action is frivolous or vexatious or some other reason for staying it. The very fact that what the plaintiff seeks is to set aside a judgment binding upon him, is sufficient to place the onus upon him of showing that he has reasonable prospects of success. And to satisfy this onus the plaintiff must produce evidence of facts discovered since the judgment complained of, which raise a reasonable probability of the action succeeding — Birch v Birch [1902] P 130 at 135-6.

The question is:

Has there been a new discovery of something material in this sense, that it would be a reason for setting aside the judgment if it were established by proof?'

The question thus formulated is in the language of Lord Selborne in Boswell v Coaks (1894) 86 LT 365n at 366.

The report of Boswell v Coaks is printed as a note to the decision in Birch v Birch (1902) 86 LT 364. In that case Williams LJ observed — 'And I think that the court ought to treat as frivolous and vexatious any cause of action in support of which the plaintiff does not produce evidence of facts discovered since the judgment which raise a reasonable probability of the action succeeding.' And Cozens-Hardy LJ, with whom Stirling LJ agreed, after referring to Lord Selborne's speech said — 'It is the duty of the court to receive evidence pro and con as is material to the question whether there really has been, since the former judgment, a new discovery of something material to disturb the former judgment.' See also the report of Birch v Birch in the Law Reports [1902] P 130.

The problem in this type of case, as I see it, is to reconcile two fundamental principles. The first is that fraud vitiates a judgment. Thus in Cabassi v Vila (1940) 64 CLR 130 at 147 Williams J, with whom Rich ACJ agreed, said:

'A judgment which is procured by fraud is tainted and vitiated throughout. If the fraud is clearly proved the party defrauded is entitled to have the judgment set aside in an action (Hip Foong Hong v Neotia & Co (1918) AC 888; Jonesco v Beard (1930) A.C. 298). In some of the older cases in the House of Lords it has been stated that where a judgment has been so obtained it may be treated as a nullity (Shedden v Patrick (1854) 1 Macq HL 535; R v Saddlers' Co (1863) 10 HLC 404 [11 ER 1083]. In the last-mentioned case (1863) 10 HLC 404 [11 ER 1083], Willes J said: 'A judgment or decree obtained by fraud upon a court binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding (Philipson v Lord Egremont (1844) 6 QB 587 [115 ER 220]; Bandon v Becher (1835) 3 Cl & Fin 479 [6 ER 1517]; Shedden v Patrick (1854) 1 Macq HL 535; see also Tommey v White (1853) 4 HLC 313 [10 ER 483]'.'

The second is the public interest in the finality of litigation. These two fundamental principles are reconciled by the requirement that the party seeking to set aside a judgment on the ground of fraud produce evidence of facts discovered since the judgment complained of. Williams J pointed out that in Charles Bright & Co Ltd v Sellar [1904] 1 KB 6, the point was made that actions to set aside a judgment on the ground of fraud do not invite the court to rehear upon the old materials but that fresh facts are brought forward and that the litigation may well be regarded as new and not appellate in its nature, because not involving any decision contrary to the previous decision …" (emphasis added)

[34] The applicant contends that the CT scan images show that Mr Brown's evidence as to the development of the reaction only six or seven minutes after the injection was untrue. If the images had been available, so the applicant's argument goes, the likelihood is that the learned trial judge may have been more inclined to accept the applicant's evidence as reliable.

[35] The applicant did not produce the CT scan images to the respondents before the hearing of the strike out application, fearing, so it is said, that the respondents may fabricate evidence to deprive them of their evidentiary impact. The applicant did not put the CT scan images before the learned Chief Justice in answer to the respondents' application to strike out his new action. Before this Court, the applicant sought to tender the CT scan images. The respondents objected to this course. This Court reserved its decision whether to receive the CT scan images.

[36] We have concluded that this Court should not receive the CT scan images tendered by the applicant on the hearing of the appeal. These documents were not before the learned trial judge: they were available to the applicant but he chose not to tender them. There is no good reason why the applicant should not be bound by his conduct of the litigation. The CT scan images cannot now be relied upon as facts demonstrative of error on the part of the learned trial judge. The burden of persuasion was upon the applicant. The position adopted by the applicant, presumably advisedly, and to which he adhered until the commencement of oral argument in this Court, meant that it was impossible for his Honour even to begin to form a view in his favour as to whether the CT scan images gave the applicant a prospect of establishing that he has suffered a miscarriage of justice as a result of the fraud he alleges on the part of the respondents. Further, even if the CT scan images show, as the applicant contends, that a plain image was taken first, and that the images using the contrast medium were taken more than two hours later, they do not satisfy the tests discussed by Kirby P in Wentworth v Rogers (No 5).

[37] The applicant's case of fraud focuses upon the fact that, under cross-examination at trial, Mr Brown accepted that he had first been asked to provide a statement of the events in which the applicant was injured by solicitors acting for the respondents seven or eight years later, and that he initially "remembered very little about the event". At the trial, Mr Brown explained that he remembered more things as a result of his mind being "focused on a particular event". The applicant now alleges that Mr Brown provided a statement in March 2002 only after the respondents' new solicitors had pressed him to confirm that he no longer had possession of the CT scan images. As Mr Thompson SC, who appeared with Mr Feely of counsel for the respondents, pointed out, the particulars of attempts by the respondents' solicitors to press for disclosure of the CT scan images identified only requests made long after March 2002. When this was drawn to the applicant's attention during the hearing of the applications, in this Court, the applicant was unable to defend the particulars which he supplied. It is, regrettably, necessary to observe that the irresponsibility involved in making serious allegations without even an arguable basis is of a piece with the applicant's inability to recognise that the CT scan images do not give rise to a real prospect that a different outcome would have been reached in the original action had they been available to the learned trial judge. The applicant's intensively subjective view of his predicament and his feelings of injustice may be understandable as a consequence of his psychiatric afflictions, but litigation cannot be resolved in accordance with the subjective perspective of one side of the dispute.

[38] The applicant's new case of subornation of perjury is simply without substance. It may well be that Mr Brown's evidence of the timing of the applicant's reaction was mistaken; but that does not mean that he was guilty of perjury or that he conspired with the respondents to give perjured evidence. Absent some basis for suggesting that Mr Brown's evidence was not merely mistaken, but deliberately and fraudulently so, the applicant cannot hope to displace what Thesiger LJ referred to In re Hallett's Estate; Knatchbull v Hallet¹⁷ "the presumption of a man's innocence of crime".

[39] The respondents' application to strike out the new action was upheld by the Chief Justice on the basis that the case of fraud which the applicant seeks to make does not pass beyond suspicion and speculation. We respectfully agree with the Chief Justice that the applicant has not shown that he can establish by admissible evidence either that Mr Brown perjured himself or that the respondents or their solicitors instigated that perjury. The improvement in Mr Brown's recollection which is of such concern to the applicant is not so wholly implausible as to be explicable only by the respondents and their solicitors procuring Mr Brown to give perjured testimony. The applicant accepted that if an innocent explanation is available to explain the changes in Mr Brown's recollection, then it will be preferred to an explanation which depends on a finding of fraudulent intent.

[40] Even if the CT scan images showed that Mr Brown was wrong in his evidence of the timing of the applicant's adverse reaction to the injection of the contrast medium, it would not follow that this would tend to throw doubt upon, either the learned trial judge's finding that the applicant had ample opportunity to object to the injection of the contrast medium if he really did not consent to that course, or the learned trial judge's rejection of Dr Coroneos' evidence that he had relayed the applicant's objection to an injection with a contrast medium to the respondents.

[41] The applicant argued on the hearing of the applications in this Court that the content of the CT scan images showed that one plain scan was carried out more than two hours before any images were taken with the coloured medium. He says that this tends to show that he reacted immediately to the injection of the coloured medium; and to call into doubt the accuracy of the evidence of Mr Brown and Dr Dubois. But if the CT scan images establish what the applicant contends, that does not alter the circumstance that there was a core of recollection common to both Dr Dubois and to Dr Coroneos, which was that they were both present at the time when the applicant suffered his reaction to the injection of the coloured medium and that there was no suggestion at that time by Dr Coroneos that the injection was contrary to the applicant's instruction. Indeed, to the extent that there was a plain CT image taken before the applicant was injected with the contrast medium, that would tend to highlight, adversely to the applicant's case, the failure of Dr Coroneos, and of the applicant himself for that matter, to make any attempt to intervene to prevent the injection of the contrast medium.

[42] The applicant also argued that, insofar as the respondents relied upon r 171 of the UCPR to strike out the applicant's new action as opposed to merely striking out the applicant's statement of claim in the new action, r 171 authorised only the striking out of the pleading. The applicant fails to appreciate that, once the court decides to strike out a statement of claim, if leave to replead is not given, and in this case it was not sought, then there is no basis on which the action can go forward. In any event, the court has the inherent jurisdiction, recognised in Boughen v Abel, to strike out proceedings to set aside judgments on the ground of fraud where those proceedings are hopeless, and their further prosecution would be vexatious or an abuse of process.¹⁸

[43] For these reasons, we accept the respondents' submission that there is no sufficient merit in the proposed appeal against the decision to strike out the applicant's claim to warrant the exercise of the discretion to extend time so as to enable the appeal to proceed.

Conclusion and orders

[44] We would refuse the applications for an extension of time in CA No 1388 of 2006 and CA No 3622 of 2007.

[45] The pursuit of these applications was quite unreasonable in that, by any objective measure, they were bound to fail. It may be said that the applicant should not be held to standards of reasonable conduct because of his psychiatric difficulties; but the respondents should not be required to meet any part of the burden of costs generated by the applicant's unreasonable attempts to reverse the outcome of his dispute with them. The applicant should, therefore, pay the costs of the respondents in each application on the indemnity basis.

Footnotes

1. D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17 [34]. ↩

2. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550, 551 – 555. ↩

3. Di Carlo v Dubois & Ors [2003] QSC 204 [50] – [51]. ↩

4. Di Carlo v Dubois & Ors [2003] QSC 204 at [52] – [53]. ↩

5. Beil v Mansell (No 1) [2006] 2 Qd R 199. ↩

6. Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207 – 208 [38] – [42]. ↩

7. von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681 at 685 – 686 [14] – [15], 687 – 688 [22]. ↩

8. McHenry v Lewis (1882) 22 Ch D 397; Rutt v Metropolitan Underwriters (Australasia) Ltd [1929] SASR 426; Moore v Inglis (1976) 50 ALJR 589; Henry v Henry (1996) 185 CLR 571 at 591. ↩

9. Cf O'Connor v Pitcairn (1901) 27 VLR 53. ↩

10. Jonesco v Beard [1930] AC 298 at 300; McDonald v McDonald (1965) 113 CLR 529 at 535. ↩

11. (1986) 6 NSWLR 534 at 538 – 540.