LOGAN J:
1 Mr Brian Jorgensen (BJ), the applicant and Mr Alan Jorgensen (AJ), the first respondent are twin brothers. AJ is also deeply, bitterly and enduringly divided with BJ about the sale of 9 of 20 units in the "Rainbow Motor Inn Unit Trust" (the Rainbow Trust) in 1992, previously held by the trustee of a trust, the Jorgensen Family Trust, controlled by AJ (Alan's Trust) sold by the receiver of Alan's Trust assets and the transfer in 2014 (2014 share transfer controversy) of 9 of 11 shares in Grancroft Pty Ltd (Grancroft), the corporate trustee of the Rainbow Trust in 2014.
2 That fraternal division and its enduring quality are evident enough just from the plethora of litigation instituted in relation to that sale and that transfer. The depth and bitterness of the division was starkly underscored for me by AJ's oral submissions when appearing at both the case management and trial phases of this proceeding, after its allocation to me as docket judge. AJ is, of course, perfectly entitled to test in a court of competent jurisdiction whether there is any substance in law in his sense of injustice about the sale and transfer, and long ago sought to do just this. As with any litigant, invoking such jurisdiction entails compliance with the practice of the court concerned. Endeavours to subvert unfavourable outcomes in the chosen court by collateral litigation in other courts are apt to provide grounds for applications such as the present. AJ has, with respect, become obsessive, garrulous, querulous and readily disposed to ascribe impropriety to judicial officers who vex him or his proxies in litigation related to his sense of injustice.
3 BJ submits that the conclusion to be drawn from the evidence in this proceeding, particularly that detailing the plethora of litigation and the various court orders made, is that the Court should grant his application for orders under s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against AJ, and any entity controlled by him, from instituting, or causing to be instituted, any proceeding with respect to, connected with or arising out of the Rainbow Trust and/or Grancroft, and for like orders against the other respondents. AJ and the other respondents resist the making of any such order.
4 It is now necessary to detail, as established by the evidence, the plethora of litigation by reference to which BJ submits that the Court should make the orders sought.
5 The plethora commences in 2015 when Mantonella Pty Ltd (Mantonella) commenced a proceeding in the Cairns Registry of the Supreme Court of Queensland (SC 15 of 2015) (Cairns proceeding) against Grancroft, Mainrace Pty Ltd (Mainrace) and BJ. Mantonella is controlled by AJ. Grancroft and Mainrace are controlled by BJ. The background to the Cairns proceeding was summarised as follows by Henry J in an interlocutory judgment delivered in that proceeding on 30 June 2015 in respect of an application for security for costs by the defendants, heard on 1 April 2015, Mantonella Pty Ltd v Grancroft Pty Ltd & Ors [2015] QSC 191, at [2] - [15]:
[2] The plaintiff company filed an originating application, in its capacity as trustee of the Jorgensen Family Trust, on 9 January 2015 seeking relief under r 643 of the Uniform Civil Procedure Rules ("UCPR") with respect to the ownership of shares in the Rainbow Motor Inn Unit Trust.
[3] The plaintiff's claim relates to an historic dispute between the plaintiff's director, Alan Jorgensen, and the third defendant Brian Jorgensen, who controls the first and second defendant companies. The plaintiff company, Mantonella Pty Ltd ("Mantonella") did not exist in the era of the dispute.
[4] Alan and Brian Jorgensen are twin brothers. Together, they purchased the Rainbow Motel in October 1977. In 1985, the Rainbow Motor Inn Unit Trust was formed for the purpose of holding the brothers' interests on trusts for their respective families.
[5] The unit trust provided that the first defendant, Grancroft Pty Ltd ("Grancroft"), would act as trustee of the Rainbow Motor Unit Inn Trust, with Brian Jorgensen and the twins' mother, Patricia, appointed as directors. Alan Jorgensen deposes that as he was self-employed at the time, it was agreed he not be a director of Grancroft, in case it prejudiced future loan applications for the motel's development.
[6] The Rainbow Motor Inn Unit Trust comprised 20 units. Nine of these units were held by Nicholas John Holdings Pty Ltd, a company controlled by Alan Jorgensen, in its capacity as trustee of the Jorgensen Family Trust. The remaining 11 units were held by Nevgold Pty Ltd, a company controlled by Brian Jorgensen, in its capacity as trustee of the Brian Jorgensen Family Trust.
[7] The current unit holders of the Rainbow Motor Inn Unit Trust are Nevgold Pty Ltd, with 55 per cent, and Mainrace Pty Ltd, with 45 per cent. Brian Jorgensen is also a director of Mainrace Pty Ltd. It is the circumstance under which Mainrace Pty Ltd came to hold the units previously held by Nicholas John Holdings Pty Ltd which is at the heart of this dispute.
[8] Alan Jorgensen represents the plaintiff, Mantonella, in these proceedings, purportedly in his capacity as its director. He alleges that a dispute arose between the brothers in about August 1992 when Grancroft ceased making profit distributions from the unit trust to the beneficiaries, after six years of doing so. He claims this was done without consulting or notifying Patricia as co-director of Grancroft, and Alan as director of Nicholas John Holdings Pty Ltd as trustee for his family's trust. Curiously, in his affidavit filed 9 January 2015, Alan Jorgensen deposes that following a profit distribution from the Rainbow Motor Inn Unit Trust in 1991 and before any dispute had arisen, it was decided prudent that further profit distributions be put on hold due to a pending property settlement with Alan's former wife, Sandra, and due to uncertainty over dealings with the ANZ Bank with respect to Alan and his company, Nicholas John Holdings Pty Ltd.
[9] In 1989, Nicholas John Holdings Pty Ltd granted a fixed and floating charge over its assets in favour of the ANZ Bank. This charge included those assets held by the company in its capacity as trustee of the Jorgensen Family Trust.
[10] In 1991, Nicholas John Holdings Pty Ltd filed its annual return with ASIC, the result of which indicated that the value of the company's assets equalled the sum of its liabilities, yielding a net asset position of $0.00.
[11] In January 1992, the ANZ Bank appointed Robert Kus as receiver and manager of property of Nicholas John Holdings Pty Ltd described as 'the whole of the assets whatsoever and wheresoever held by Nicholas John Holdings Pty Ltd as trustee of the Jorgensen Family Trust'. This included the nine units of the Rainbow Motor Inn Unit Trust.
[12] In April 1992, Robert Kus was replaced as receiver and manager by Peter Gerard Ryan.
[13] Following an approach by Mr Ryan, the third defendant caused his company Mainrace Pty Ltd, as trustee of the Brian Jorgensen Family Trust No. 2, to enter into an agreement to purchase the nine units held by Nicholas John Holdings Pty Ltd for a price of $125,000. The third defendant deposes this price was the ascribed value of the units under a Report as to Affairs completed by Alan Jorgensen in his capacity as director of Nicholas John Holdings Pty Ltd.
[14] By late 1992 Alan Jorgensen was aware that Mainrace Pty Ltd, as trustee for the Brian and Evelyn Jorgensen Family Trust, had acquired the 45 per cent share of the unit trust held by Nicholas John Holdings Pty Ltd for $125,000.
[15] Some 22 years later he initiated the present proceeding.
[emphasis in original]
6 I respectfully adopt that summary for the purposes of the present proceeding. For reasons given in that interlocutory judgment, Henry J made the following orders in the Cairns proceeding on 30 June 2015:
1. The plaintiff [Mantonella] give security for the defendants' costs up to the close of pleadings and disclosure in the sum of $35,000 in a form satisfactory to the Registrar of the Court on or before 21 July 2015.
2. Further proceedings are stayed pending compliance with order 1.
7 Neither by the time appointed by the order made on 30 June 2015 nor for that matter thereafter has Mantonella given security for costs in the Cairns proceeding. Mantonella has never applied for leave to appeal to the Queensland Court of Appeal against that interlocutory order. Accordingly, that interlocutory order has taken effect according to its terms. The Cairns proceeding remains stayed.
8 After the security for costs application in the Cairns proceeding had been heard and before that application had been determined, but not, I find, by coincidence, Mijac Investments Pty Ltd (Mijac) (purportedly as joint trustee of Alan's Trust), the fourth respondent in the present proceeding, commenced proceedings in the Supreme Court of New South Wales (matter 2015/158675) against BJ and Grancroft (the First NSW Proceeding). Mijac is also the fourth respondent in the present proceeding. It is another company controlled by AJ. On 6 July 2015, AJ filed an Amended Notice of Motion in the First NSW Proceeding varying the relief and adding AJ (in his own right) and a Mrs Patricia Jorgensen (Mrs Jorgensen) as plaintiffs. Mrs Jorgensen (since deceased) was the mother of BJ and AJ.
9 On 31 July 2015, AJ (purportedly as trustee of Alan's Trust) commenced further proceedings in the Supreme Court of New South Wales (matter 2015/224142) against BJ and Grancroft (the Second NSW Proceeding).
10 On 7 August 2015, the First NSW Proceeding was dismissed by the Supreme Court of New South Wales on terms that the defendants' costs be their costs in the Second NSW Proceeding.
11 On 4 September 2015, AJ filed a summons in the Second NSW Proceeding, seeking to add Mrs Jorgensen as a plaintiff and to change the relief sought.
12 The fate of the Second NSW Proceeding and further detail as to the controversy concerning the 2014 share transfer controversy are to be found in the judgment of Brereton J (as his Honour then was) in Jorgensen (as trustee for Jorgensen Family Trust) v Grancroft Pty Ltd [2015] NSWSC 1723, delivered on 12 November 2015. His Honour, at [7], offered the following detail as to the 2014 share controversy:
7. It also appears that, on 17 March 2014, Mrs Jorgensen executed a share transfer of six shares in Grancroft to Mijac Investments Pty Ltd, a company associated with Alan Jorgensen. However, it appears that she may also have, on 13 April 2014, executed a share transfer dated 18 March 2014 of all her nine shares in Grancroft to Brian Jorgensen. It is that transfer of the nine shares to Brian Jorgensen that is at the heart of the present proceedings, although the circumstances by which Mainrace claims to have become entitled to the nine units formerly held by the Alan Jorgensen Trust have also been raised.
I respectfully adopt his Honour's description.
13 For present purposes, the material order made by Brereton J on 12 November 2015 was that, pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the Second NSW Proceeding be transferred to the Supreme Court of Queensland. His Honour's reasons for making that order included, at [22], "the current proceedings have no connection whatsoever with New South Wales and can only be brought in New South Wales because of the (Qld) Jurisdiction of Courts (Cross-Vesting) Act 1987, which gives to this Court the jurisdiction of the Supreme Court of Queensland." That conclusion followed what was, with respect, a reflective and instructive analysis of the operation of private international law concepts in relation to convenience and appropriateness of forum in circumstances of shared jurisdictional competency as between State Supreme Courts within the one nation and their interplay with the cross-vesting legislative scheme. As a result of that analysis, his Honour, at [21], opined, "it seems to me strongly arguable that the proceedings in this State are an abuse of process, as they raise the identical issue that is being litigated by the plaintiff (albeit currently through in earlier trustee) in the Queensland proceedings". It was not necessary for Brereton J to reach any concluded view as to whether the Second NSW Proceeding was in fact an abuse of process but that arguably they had that quality was one factor which influenced his Honour's conclusion that it was appropriate to transfer them to the Supreme Court of Queensland. Upon their transfer to the Supreme Court of Queensland the Second NSW Proceeding became No 12602 of 2015 in that court.
14 On 16 December 2015, BJ filed an application in the Supreme Court of Queensland (Qld vexatious proceedings application) under the Vexatious Proceedings Act 2005 (Qld) (Vexatious Proceedings Act) for orders against AJ, Mantonella and Mijac that they not institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Trust.
15 Before that application could be heard and determined, AJ's daughters Trudy Leanne Jorgensen (TLJ), the sometime second respondent in the proceeding (since deceased) and Jimeale Jorgensen (JJ) commenced proceedings by Originating Application No 641 of 2016 in the Queensland Supreme Court (proceeding 641/16) against Potinak Pty Ltd (Potinak) as trustee of the Rainbow Trust and Mainrace as trustee of the Brian Jorgensen Family Trust No 2. Potinak is another company controlled by BJ. The principal relief sought in that proceeding was under the Trusts Act 1973 (Qld) (Trusts Act) so as to:
… remedy the dishonest decisions that have been made by the Trustee and its Directors of the First Respondent. In particular, the Trustee's refusal to comply with the most crucial Provision of the Trust Deed, which was to distribute the assets of the 30 year Trust on its Termination Date, whereby the Registered Beneficiaries were to receive their share once 30 June 2015 had arrived, but did not. Instead, the Trustee has tried to replace the Applicants' family trust's 45% entitlement, with the Trustee's Directors' own company, Mainrace Pty Ltd, where the Applicants' family is being defrauded over $10,000,000 [sic].
16 On 2 February 2016, Daubney J ordered that proceeding 641/16 be adjourned until 17 February 2016 and further ordered that:
(a) the applicants to pay the defendant's costs fixed in the sum of $13,200 by 15 February 2016; and
(b) if the costs were not paid in time, the Originating Application would stand struck out (upon an affidavit being filed verifying the lack of payment).
The costs were not paid in accordance with this order. An affidavit dated 15 February 2016 verifying that was filed in the Supreme Court of Queensland. Accordingly, the order of 2 February 2016 took effect according to its terms and proceeding 641/16 has been struck out. For present purposes, the relevance of proceeding 641/16 is that it is to be regarded as an endeavour by persons related to AJ to agitate issues relating to the Rainbow Trust by litigating against entities associated with BJ.
17 On 11 March 2016, TLJ filed an originating application in the Townsville Registry of the District Court of Queensland (proceeding D66/16) against Potinak, BJ, Mainrace and Grancroft. Regard to the originating application discloses that this application also claims relief under the Trusts Act and is directed to the conduct of BJ in relation to the sale of 9 of 20 units in the Rainbow Trust in 1992. Shortly thereafter, the solicitor for the named respondents filed an affidavit in proceeding D66/16 summarising the effect and result of proceedings previously instituted in relation to the Rainbow Trust and the 1992 sale of units. TLJ filed a notice of discontinuance of proceeding D66/16 on 29 March 2016.
18 On 24 June 2016, TLJ and the third respondent, Farmers Fruit Box & Plastics Pty Ltd (FFB) (then called Teksid Pty Ltd), commenced proceedings in the Townsville Registry of the District Court of Queensland (proceeding D180/16) against Potinak, BJ, Mainrace, Grancroft and Mrs Jorgensen. FFB is a company of which:
a. AJ is the sole director;
b. AJ and TLJ are the shareholders; and
c. TLJ and JJ were at various times directors.
19 On 26 July 2016, BJ applied in the Supreme Court of Queensland for the transfer of the proceeding D180/16 to the Supreme Court and for vexatious proceedings orders against TLJ and FFB in relation to the Rainbow Trust.
20 On 5 September 2016, Daubney J gave judgment in respect of the Qld vexatious proceedings application: Jorgensen v Jorgensen [2016] QSC 193. The substantive orders made by his Honour were:
1. The applicant Brian Laurence Jorgensen has leave to apply for a vexatious proceedings order under the Vexatious Proceedings Act 2005.
2. Pursuant to s 6(2) of the Vexatious Proceedings Act 2005, it is ordered that the first respondent Alan Jorgensen, or any entity controlled by the first respondent (including each of the second respondent and the third respondent) shall not without the leave of the Court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.
Mantonella and Mijac were the second and third respondents in the Qld vexatious proceedings application. The respondents were also ordered to pay BJ's costs on the standard basis.
21 Later that same month, on 30 September 2016, Henry J gave judgment in relation to BJ's application in proceeding D180/16: Jorgensen v Jorgensen [2016] QSC 235. The substantive orders made by his Honour were:
1. [P]ursuant to s 25(1) of the Civil Proceedings Act 2011, proceeding D180/2016 in the Townsville Registry of the District Court of Queensland is transferred to the Cairns Registry of the Supreme Court of Queensland;
2. [P]roceedings D180/2016 is permanently stayed;
3. Trudy Jorgensen shall not, without leave of the court institute or cause to be instituted any proceedings with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust.
The respondents to that application (the plaintiffs in proceeding D180/16) were ordered to pay BJ's costs on the standard basis.
22 An appeal by TLJ and FFB against the orders made by Henry J in proceeding D180/16 was subsequently dismissed by the Queensland Court of Appeal: Jorgensen v Jorgensen [2017] QCA 110 (Jorgensen v Jorgensen). Notably, having recited the history of litigation concerning the Rainbow Trust to that point, the same history as I have recited above, Sofronoff P (at p 4) (with whom Gotterson JA and North J agreed) made this observation in respect of proceeding D180/16 and of the security for costs order made by Henry J in the Cairns proceeding in 2015:
The current proceedings were calculated to evade the effect of the order that his Honour made that the Alan Jorgensen interests provide security for costs before proceeding with the claims. All of the subsequent proceedings raise the same grounds of complaint against the same class of defendants; for that reason alone, they are textbook examples of abuse of the Court's process. They also evidence an incorrigibility in the behaviour of the plaintiffs who are all associated with Alan Jorgensen that justifies the injunction that was granted. It is the only possible effective relief against this conduct.
That observation does not, of course, bind me in relation either to TLJ or FFB, or any of the other respondents, AJ included, to the present application. However, approaching the subject afresh and by reference to s 37AO of the FCA Act for the purpose of determining the present proceeding I respectfully agree with it. Moreover, subsequent litigious events, to the detailing of which I now turn, serve only to underscore its accuracy.
23 The vexatious proceedings orders respectively made by Daubney and Henry JJ, in conjunction with the emphatic affirmation of occasion for the latter by the Court of Appeal, appear, on the evidence, to have brought to a close a pattern of litigation in relation to the Rainbow Trust in the courts of the State of Queensland, but only in those courts.
24 On 7 June 2018, Mrs Jorgensen (purportedly as trustee of Alan's Trust) commenced proceedings in this Court's New South Wales District Registry (proceeding NSD979/2018) against BJ, Grancroft, Miller Harris Lawyers, Mr Justin Cadman and another respondents. Miller Harris Lawyers have been the solicitors for BJ and interests related to him in all of the litigation instituted on and from 2015 in relation to the Rainbow Trust. Mr Cadman was once Grancroft's accountant. In response, the respondents applied for the proceeding to be dismissed or permanently stayed, and for vexatious proceedings orders against Mrs Jorgensen pursuant to s 37AO(2) of the FCA Act. On 20 August 2018, by consent, the Court (Markovic J) ordered proceeding NSD979/18 be dismissed pursuant to s 31A of the FCA Act and, pursuant to s 37AO(2) of that Act, made vexatious proceedings orders against Mrs Jorgensen preventing her from litigating in relation to the Rainbow Trust.
25 On 7 January 2019, TLJ (purportedly as trustee of Alan's Trust) commenced proceedings in the Court's New South Wales District Registry (proceeding NSD83/19) against Mr Cadman and Mrs Jorgensen. The proceeding was expressed to be an application "under the Corporations Act 2001, pursuant to SECS 241 and 53AD Business affairs of a Trust". Further examination of the originating application discloses that "the Trust" is the Rainbow Trust and that, in substance, proceeding NSD83/19 was an endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding. On 14 February 2019 BJ and Grancroft applied to be added as respondents in proceeding NSD83/19 and for the proceeding to be transferred to the Court's Queensland District Registry.
26 The present proceeding was commenced on 8 March 2019 with 22 March 2019 being appointed as the date for its first case management hearing. On 22 March 2019, both proceeding NSD83/19 and the present proceeding came before Gleeson J for case management. At that time, AJ, who appeared, without objection, for TLJ, informed her Honour, "I'm pretty well the principal of the whole trust situation, and I represent the applicant and also the applicant seeking to substitute for Trudy Jorgensen for future proceedings." That proposed substitute was PPB Co Pty Ltd (PPB Co), yet another company controlled by AJ, which, so AJ informed her Honour, was the "new co-trustee" of Alan's Trust. In respect of proceeding NSD83/19, Gleeson J made an order for the joinder of Grancroft. She also made provision for any interlocutory applications by Grancroft or for the substitution of PPB Co to be returned at the next case management hearing. That was fixed for 9 May 2019. Reflecting an exchange which had occurred in the course of the case management hearing, her Honour annotated the order made on 22 March 2019 that, "[i]f the notice of discontinuance is filed by Friday 5 April 2019, there will be no order as to costs". In the result, proceeding NSD83/19 was discontinued by TLJ on 5 April 2019.
27 Also on 22 March 2019, Gleeson J adjourned the present proceeding for further case management on 9 May 2019.
28 On 1 May 2019, AJ (purportedly as trustee of Alan's Trust) commenced proceedings in the Court's New South Wales District Registry (proceeding NSD756/19) against Mr Cadman and Mrs Jorgensen. The originating application states that, "This Application is made under the Federal Court Rules ADR Part 28.1, 28.4, Corporations Act 2001 pursuant to SECS 241 and 247A and 53AD Business affairs of a trust, on the facts stated in the supporting affidavit of Alan Bradley Jorgensen dated 20th April 2019". The "trust" is the Rainbow Trust and, like proceeding NSD83/19, proceeding NSD756/19 was, in substance, an endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding. The only notable additional feature was an endeavour to have the Court order that the merits of those issues be case appraised or determined by a referee.
29 On 9 May 2019, Gleeson J ordered that the present proceeding be transferred to the Queensland District Registry. As a consequence, a Queensland resident judge, Collier J, assumed responsibility for its case management. Her Honour case managed the present proceeding in conjunction with proceeding NSD756/19, for which her Honour also had docket judge responsibility.
30 Under cover of an email to Mr McGrath of Miller Harris Lawyers dated 2 July 2019, AJ enclosed a copy of a Notice of Cross-Claim in the present proceeding in which he as a cross-applicant, and purportedly as trustee of Alan's Trust, named Miller Harris Lawyers, Mr Cadman, Grancroft, BJ and BJ's wife as cross-respondents.
31 At a case management hearing for the present proceeding on 4 July 2019, Collier J ordered the joinder of PPB Co. Notably, her Honour also made these orders:
3. Other than in relation to proceedings in NSD756/2019, the Respondents themselves and through any entities that they control, neither institute nor cause to be instituted, proceedings nor take or cause to be take, steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd, until the determination of the originating application or other Order of this Court.
4. No proceeding or application of the type referred to in Order 3 be accepted for filing until the determination of the originating application or other Order of this Court.
The effect of these orders was that the notice of cross claim was not accepted for filing in the present proceeding. That does not mean that it is irrelevant in terms of deciding whether the relief sought by BJ should be granted. Regard to the notice of cross claim discloses that it, too, is an endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding. At the very least, the relevance of this notice of cross claim lies in the insight it gives in relation to a continuing disposition by AJ, entities controlled by him or his proxies to endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding.
32 Also on 4 July 2019, Collier J listed the present proceeding for substantive hearing on 6 November 2019 and made case management orders directed to that end.
33 In the result, although further interlocutory steps were taken in proceeding NSD756/19, it came to be discontinued by Mr Jorgensen on 5 September 2019. That left on foot in this Court only the present proceeding.
34 On 21 October 2019, Collier J refused an oral application made that day by AJ for the vacation of the substantive hearing. Also that day, her Honour refused AJ leave to file in the present proceeding an interlocutory application in which he claimed the following relief:
1. That pursuant to Sect 37M Overarching Purpose of the FCA that prior to the proposed Trial of this matter on 6th November 2019, the issue of settling this 37AO matter by simply clarifying the official ownership of the Rainbow Motor Inn Unit Trust, should first be explored. Once the Court ratifies, or otherwise, the Official ownership of the Trust, then this 37AO Application appears no longer be relevant, as all FCA proceedings will naturally cease, as nothing left to argue, as it has been all about the Official Ownership which is easily recognisable by a judge.
2. To that end and pursuant to the Qld Trusts Act 1973 Sect 8 Application to court to review acts and decisions, the First Respondent, who is the principal of the Jorgensen Family Trust, which has always been the legal owner of 45% of the Rainbow Motor Inn Unit Trust, according to the Trust Deed, seeks Orders that the Court Review the illegal decision of the Trustee's Managing Director to try and transfer the Respondents' 45% ownership over to himself, which is highly illegal.
3. Likewise under the above Sect 8, the Court review the decision of that Managing Director to also steal the controlling shareholder's 9 shares, so as to arrest control of that $20,000,000 Trust, just a year before that 30 year Trust was due to vest on 30 June 2015.
4. That because of the Applicant's blatant abuse of his Fiduciary and Trustee Duty, to try and defraud the 2nd Beneficiary of the Trust of at least $10,000,000, that pursuant to Sect 80 of the Qld Trusts Act 1973 Power of court to replace trustees, then the Trustee be replaced, especially given the 30 year Term of the Trust already vested on 30 June 2015.
5. Alternative to Order(4), Orders are sought pursuant to the Corporations Act Sect 241 General Powers of the Court for the Controlling shareholder of the legal Trustee, Grancroft Pty Ltd, be allowed to exercise her inherent right, to appoint 2 new Directors to the Trustee Board, who will themselves sort of the legitimate course to take, according to the Trust Deed. Whereas for the last 34 years, Brian Jorgensen has made every decision by himself and violated every imaginable trustee duty and in doing so, has defrauded the 2nd Beneficiary for over $10M, and now seeks to obtain impossible Orders, to prevent himself from ever being brought to court to face justice.
6. Costs Reserved
7. Any other Orders this Court sees fit.
[Emphasis in original]
35 On 23 October 2019, and as apparently foreshadowed, Collier J published reasons for the making of the orders just mentioned on 21 October 2019: Jorgensen v Jorgensen [2019] FCA 1742. These disclose that the proposed interlocutory application was associated with a letter dated 16 September 2019, authored by AJ, in which he stated, inter alia:
…
It would seem that it would be in the interests of justice, that this Application be heard and determined prior to the trial set down for 6th November 2019.
I am overseas until 14th October 2019, so would ask that this Application be heard anytime in October after that date, but before 28th Oct.
In Chambers, without Oral Hearing, "on the papers" is OK by me.
Given that up to 12 Witnesses, as per the list in my attached affidavit, will be required to give evidence at the 6th November trial, it would be appreciated if this Interlocutory Application could be determined at least a week prior.
It is my respectful view that if the Court in this proposed Application, checks the Rainbow Inn Unit Trust Deed and decides who the current registered legal owners are, then the 6 November Trial can be settled without having this trial, as there would be undertakings given by me and my associated parties about not issuing any future proceedings against Brian Jorgensen and his family.
Such a suggested course would I expect, be very much in line with this Court's 37M Overarching Purpose of resolving disputes as economically and efficiently as possible.
As it currently sits, my twin brother seeks illegal and impossible Orders from this Court that he can never be sued by me or my family, for his illegal actions as the Trustee, in transferring my family's long held 45% share in the Rainbow Unit Trust, worth over $10,000,000, to him and his wife's company (at only 1/8th its sworn value at time!).
The Trustee's purported Transfer to himself, is highly illegal and simply not permitted by law, under any circumstances (by Equity's cornerstone "Self Dealing Rule"), yet my twin brother 'childishly', seeks Orders from this Court, to grant him immunity forever! Good grief!
His Lawyers are personally liable under 37M for filing for such illegal Orders, that can never ever be granted and is in Violation of Sect 6 of the Civil Dispute Resolution Act 2011 in failing to file a Form 16 Rule 8.02 Genuine steps statement.
[Emphasis in original]
36 Once again, the interlocutory application, the filing of which was rejected by Collier J, is not a proceeding "instituted" in the Court. It is, though, plainly enough, in substance yet another endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding. It is relevant for the further indication which it provides as to AJ's disposition. That disposition is underscored by the contents of the letter just quoted.
37 So far as the present proceeding is concerned, here matters rested until 5 November 2019.
38 On 5 November 2019, on the initiative of Collier J, the present proceeding was listed for further case management. On that day, and as is stated in an annotation to the order made that day adjourning the trial fixed to commence the following day, her Honour, "independently recused herself from hearing any proceedings relating to Mr Alan Bradley Jorgensen".
39 Her Honour did not publish formal reasons for this recusal. However, a transcript of the case management hearing that day discloses that her Honour offered an explanation to the parties. From that it emerges that, as a result of references in emails sent by AJ to the registry which came to be forwarded to her Honour's chambers, her Honour noticed reference in them to litigation between AJ and the Australian Securities and Investments Commission (ASIC) in the first decade of the present century. Her Honour disclosed that she was a Commissioner of ASIC between 2001 and 2006. She also disclosed that, upon further investigation, she had ascertained that, on 27 February 2004, a judgment had been delivered in this Court in Jorgensen v Australian Securities & Investments Commission [2004] FCA 143 (Jorgensen v Australian Securities & Investments Commission) with AJ being the applicant in that case. Her Honour further disclosed that, while she "did not recall any events or circumstances concerning Mr Alan Jorgensen from my time at ASIC, which is now more than 13 years ago", "it is apparent from this judgment, ASIC was taking an investigatory interest in [AJ] during the time that I was a Commissioner, and that this culminated in further litigation and court cases later in the 2000s". Her Honour stated, "Now that I am aware of this, it would be appropriate for me to recuse myself from further involvement in these proceedings." Her Honour offered each party an opportunity to make submissions on the subject but neither submitted that there was no occasion for recusal.
40 It is not in any way for me to question whether there was occasion for recusal, only to deal with the consequence, which was that docket judge responsibility for the present proceeding was thereafter allocated to me. I should, however, make it plain that, for the purpose of determining the present proceeding, I have had no regard to Jorgensen v Australian Securities & Investments Commission or, for that matter, any other proceeding, interlocutory or otherwise, as between AJ and the ASIC. Further, it has never been part of BJ's case that regard ought to be had to such material for the purpose of determining the present application.
41 After its re-allocation, the present proceeding was listed for case management before me on 18 February 2020. At that time and after hearing from the parties, I adapted existing case management directions to the end of the case being tried for two days, commencing on 23 June 2020. Alas, and through no fault of any of the parties, events overtook the hearing occurring as planned. AJ had departed for abroad, in good faith I add, after the date originally fixed for trial by Collier J. International travel restrictions resulting from the present pandemic came to intrude on his ability to return to Australia so as to appear in person. By April 2020, it had become apparent that it was not practical to hear the case in June 2020 as planned. Accordingly, fresh trial dates were allocated, with the trial fixed to commence on 13 October 2020, and existing pre-trial directions were amended accordingly. At the same time, it became apparent that AJ had attempted to file in the registry an interlocutory application which would have been subversive of the restrictions imposed by Collier J by the orders made on 4 July 2019. Accordingly, I directed that that application not be accepted for filing.
42 On 11 August 2020, AJ filed an interlocutory application in which he sought the following orders:
1. That Orders be made by this Court for the re instatement of the Respondent's secretly removed Cross Claim, which was already filed pursuant to Rule 15.01 Cross Claim by Respondent, before any Order was made by Collier J on 4th July 2019: in Orders 3 and 4 that unlawfully banned any further proceedings or steps be taken by the Respondent.
2. That Orders be made that all the above Orders made by recused judge, Collier J be dissolved, or superseded by new Orders pursuant to the inherent powers of the Court to do so, as new evidence is produced and as the case evolves.
3. That Orders be made that the Applicant comply with the below standard Rules:
[ii] Rule 20.31 Notice to produce documents in pleading or affidavit
[iii] Rule 21.01 Order for Interrogatories
[iv] Rule 22.01 Notice to admit facts or documents
4. That Order be made against the Applicant to reveal the name of the mutual "best friend" of his, and of the Cairns Supreme Court Justice Jim Henry, that he referred to during the May 2015 meeting at his mother's home, with Alan and Patricia Jorgensen, which admission was referred to in many affidavits of Patricia Jorgensen and of Alan Jorgensen, which was never ever denied once, by Brian Jorgensen.
5. That Order be made against the Applicant to put on Affidavit details of the occasions he has outside of the Court Room, met or been in contact with Cairns Supreme Court Judge, Justice Jim Henry.
6. That Order be made that Cairns Justice, Jim Henry put on Affidavit, details of the occasions His Honour has outside of the Court Room, met or been in contact with Brian Jorgensen.
7. That this Court reassess, the October trial date given the inescapable effects of the Corona Virus on travelling from both overseas for the Respondent and his 10 Witnesses, 4 of whom reside in Melbourne which is in heavy lockdown.
8. That Miller Harris Lawyers be Ordered forthwith, to file Form 16 Rule 8.02 Applicants genuine steps statement, which they failed to do.
9. That Orders be made for Miller Harris Lawyers to be available for cross examination and themselves comply with the Orders in paragraph (2) to answer questions given their complicity as shown in Exhibit "ABJ-5" , alternatively they be removed as solicitors or their Affidavits filed in this matter be inadmissible.
10. Costs be reserved
11. Any other Orders the Courts deems fit.
[sic - emphasis in original]
43 On 18 August 2020, I dismissed this interlocutory application and made other interlocutory orders which included:
4. The first respondent (Mr Alan Jorgensen) be permitted to appear at trial by audio visual means using the Microsoft Teams platform or by audio means using that platform or such other means as the Court may specify in the event that he files an application so to do on or before 30 September 2020.
5. The second respondent (Ms Trudy Leanne Jorgensen) be removed as a party to the proceeding.
6. Ms Tieu My Nguyen be added as the sixth respondent to the proceeding.
44 The specification for application in advance for a remote mode of appearance was occasioned by experience gained by that time of the impact on the exercise of judicial power of public health restrictions. That impact was not just confined to the disruption and sometimes prevention of physical appearances in court by or on behalf of parties, but also extended at times to the ability of parties to access direct video-link facilities. In turn, this led over the course of last year to frequent resort for remote appearances to computer based, digital audio-visual platforms (Microsoft Teams in the case of the Court) and, sometimes, just to the use of a telephone conference, either from locations in Australia or abroad. Experience dictated that the variable quality of these remote modes of communication and the variable facility with them of parties or their legal representatives necessitated rehearsal in advance of the proposed means of communication so as to identify and, if possible, address before a hearing date any difficulties.
45 BJ consequentially filed and served a further amended originating application taking up these changes to the respondent parties and claiming relief against Ms Nguyen in like terms to that sought in respect of AJ and other respondents.
46 The removal of TLJ as a respondent party was occasioned by her death after the commencement of the proceeding. To avoid confusion, I have not directed a re-numbering of respondent parties as a consequence of TLJ's removal as a party. Occasion for the joinder of Ms Nguyen was found in her having, on 29 July 2020, instituted, purportedly as a co-trustee and beneficiary of Alan's Trust a proceeding in the Supreme Court of New South Wales (matter 2020/221724) naming Grancroft, as trustee of the Rainbow Trust, as respondent. Regard to the relief claimed in matter 2020/221724 discloses that it is, in substance, another endeavour to agitate issues which were, or could have been, raised in the Cairns proceeding. In her accompanying affidavit, filed in matter 2020/221724, Ms Nguyen described herself as AJ's "de facto wife". She also stated:
5. Given Alan J's conflicting family loyalties with these destructive legal proceedings following the deaths of his mother, Patricia Jorgensen ["Pat J"] 4 months ago and his daughter, Trudy, 3 weeks ago, then I have been appointed as a Co-Trustee of the JFT to better deal with this "Abel and Cain", twin brother fight. I therefore have dual grounds in which to issue these proceedings against Grancroft, which out of blatant greed, defrauded Alan J's family which is now my family too, for over $15,000,000 by failing to distribute the assets of the Rainbow Trust when it vested on 30 June 2015, pursuant to its Trust Deed.
47 Ms Nguyen, I find, is a proxy for AJ's grievances concerning the Rainbow Trust. I accept BJ's submission that the subject matter, formatting and language of the originating summons and Ms Nguyen's affidavit filed in matter 2020/221724 when compared with originating processes and affidavits filed in litigation instituted (or as to cross-claims sought to be instituted) either by AJ or others in his interest after the Cairns proceeding as detailed above, make it inherently likely that Ms Nguyen is acting in concert with AJ. As AJ's interlocutory application dismissed on 18 August 2020 discloses, he in his own right is persistent in seeking to agitate issues which were, or could have been, raised in the Cairns proceeding.
48 The trial fixed to commence on 13 October 2020 did commence that day.
49 Even though AJ had not, as required, made application by 30 September 2020 to appear remotely, arrangements were nonetheless made so that he could appear by telephone from abroad (Bali, in Indonesia) on 13 October 2020.
50 On 13 October 2020, BJ appeared by counsel and solicitor present in court in Brisbane. AJ appeared by telephone from abroad. Ms Nguyen also appeared. AJ sought to appear for her and Ms Nguyen confirmed she wished him to speak for her. Her command of English was noticeably limited. Although such representation was possible by leave, I did not consider it in her interest for AJ to make submissions on her behalf. At the heart of the exercise of a discretion to grant such leave is "the public interest in the attainment of the ends of justice": Damjanovic v Maley [2002] NSWCA 230, at [83], (2002) 55 NSWLR 149, at 162 - 163. I considered that the nature of the plethora of litigation instituted and conducted since the security for costs order was made in the Cairns proceeding and the centrality of AJ's direct or indirect involvement in that litigation told against permitting AJ to represent Ms Nguyen. I considered that to permit him to represent her, in light of that involvement, would be subversive of the public interest mentioned and of Ms Nguyen's personal interest as a respondent to an application of the present kind, given the issues raised. I did permit AJ to act as a "Makenzie friend" (qv McKenzie v McKenzie [1971] P 33) for her.
51 I also did not consider it in the interests of any of the corporate respondents to grant leave for AJ to appear for them. Rule 4.01(2) in the Federal Court Rules 2011 (Cth) (Rules) provides that, "[a] corporation must not proceed in the Court other than by a lawyer" but r 1.34 grants a discretionary power to dispense with this requirement in the circumstances of a given case. Relevant to the exercise of that discretion are the importance in the administration of justice that those permitted to appear before the Court owe a responsibility to the Court to ensure that the Court is properly informed and not misled, the interest of BJ in having the proceeding dealt with without unnecessary delay and the public interest in the effective, efficient and timely disposal of litigation: Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (unreported, Sup Ct, NSW, Mahoney AP, Powell JA, O'Keefe AJA, 6 September 1994); Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595. Once again, having regard to each of those considerations, I considered that the involvement of AJ just mentioned told against the granting of leave. None of the corporate respondents sought to appear by a legal practitioner.
52 A proposed cross-claim and related affidavit by Ms Nguyen became Exhibit 2 in the proceeding. I reserved the question as to whether to permit this cross-claim to be filed. It, too, seeks to raise issues which were, or could have been, raised in the Cairns proceeding. To permit it or the related affidavit to be filed would be to countenance an abuse of process. The whole history of endeavours to subvert the effect of the security for costs order made by Henry J in the Cairns proceeding, notably including AJ's unsuccessful interlocutory application in the present proceeding to file a cross claim raising like issues, demonstrates why this is so. Leave to file that cross claim is therefore refused.
53 Exhibit 2 also came to contain a plethora of other material upon which AJ sought to rely. As identified by AJ in the course of the hearing on 13 October 2020, this comprised:
(a) an affidavit of BJ of 6 August 2015;
(b) an affidavit of Mrs Jorgensen of 13 March 2018;
(c) a chronology dated 20 October 2015;
(d) an affidavit of AJ dated 8 May 2019;
(e) written submissions of AJ dated 21 October 2019;
(f) an affidavit of AJ of 31 July 2020;
(g) a notice to produce dated 22 October 2019;
(h) AJ's interlocutory application dated 17 August 2020;
(i) related to (h), the cross-claim AJ attempted to file in July 2019;
(j) an interlocutory application of AJ dated 14 April 2020 (the subject of an interlocutory order of 16 April 2020 that it not be accepted for filing);
(k) interlocutory applications of Ms Nguyen in the present proceeding dated 21 September and 1 October 2020;
(l) a copy of Quince v Quince [2020] NSWSC 326.
54 Given the exigencies of a trial conducted partly by telephone conference from abroad, it was convenient to direct that these further documents be incorporated in Exhibit 2, subject to such just objection as BJ might make. BJ objected to the admission of these documents on the basis of relevance.
55 As to that objection:
(a) The affidavit of BJ of 6 August 2015 and the affidavit of Mrs Jorgensen of 13 March 2018 are not relevant to the issues raised by the present application. To admit them would be to embark on a course subversive of the orders made in, and consequential staying of, the Cairns proceeding.
(b) The chronology dated 20 October 2015 is not relevant to the issues raised by the present application and is not, in any event evidence of anything contained therein.
(c) The affidavit of AJ dated 8 May 2019 in proceeding NSD 979/2018. It was made by AJ, as AJ deposes in the affidavit "in support of seeking Leave for the Amending of our Original Application NSD 979/2018, where the Applicant Patricia Jorgensen ATF Jorgensen Family Trust ["JFT"] is being replaced by Alan Jorgensen ATF Jorgensen Family Trust". Putting aside the many argumentative passages in it, the contents of the affidavit are not relevant to the issues raised by the present application. To admit the affidavit would be to embark on a course subversive of the orders made in, and consequential staying of, the Cairns proceeding.
(d) AJ's affidavit of 31 July 2020 - the same observations and conclusions as are made in sub-paragraph (c) are applicable.
(e) The notice to produce of 22 October 2019 is an abuse of process and not relevant to the issues raised by the present application.
(f) AJ's interlocutory application of 17 August 2020 had been dealt with. It is relevant in relation to whether AJ has a disposition to endeavour to subvert the security for costs and stay order made in the Cairns proceeding.
(g) AJ's attempted cross claim is relevant for the same reason as given in sub-paragraph (f).
(h) AJ's interlocutory application dated 14 April 2020 the filing of which was rejected is relevant for the same reason as given in sub-paragraph (f).
(i) Interlocutory applications of Ms Nguyen sought to be filed in the present proceeding dated 21 September and 1 October 2020 are each an abuse of process and contain scandalous material. They are relevant in relation to whether Ms Nguyen has a disposition to endeavour to subvert the security for costs and stay order made in the Cairns proceeding and whether she is a proxy for AJ.
56 AJ became noticeably discursive over the course of the hearing, making, without evidentiary foundation, similar allegations to those made in his letter of 16 September 2019. He also became noticeably garrulous as the hearing progressed, especially as he encountered a ruling contrary to his application in relation to cross-examination. The telephone hearing was interrupted more than once by the phone line cutting out. I did not attribute this to AJ's hanging up but rather just to the vagaries of international telephone communications. AJ made it plain he did not wish to take up a limited right of cross-examination of BJ I had granted to him. Eventually, there was an abrupt cessation of communication by AJ after I had urged him to reconsider not taking up the limited right of cross-examination. A female voice, apparently that of Ms Nguyen, came on to the line. Her command of English was noticeably limited. It did not prove possible to return AJ to the telephone. In the circumstances, I made directions for hearing to be concluded by way of written submissions and for those directions to be served on the respondents by BJ.
57 On 14 October 2020, a Mr Bo Zhou, a solicitor in the firm Madgwicks Lawyers, sent an email in the following terms to the Court's registry staff in Brisbane:
We write today on request of Mr Alan Jorgensen to convey that:
1. Mr Jorgensen had a medical episode yesterday that forced him to go to hospital; and
2. That he has been advised by his doctors that he requires at least one week of bed rest until his condition improves.
3. That he cannot attend at the remainder of the hearing as a result.
We advise that we do not act for Mr Jorgensen or Ms Nguyen in these proceedings, but write today to inform the court as requested by Mr Jorgensen.
No medical evidence in relation to AJ's asserted medical condition accompanied this email.
58 Subsection 37AO(4) of the FCA Act makes express provision for what in any event would be a necessary incident of an application for an order restricting an important personal right namely that, "[t]he Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard."
59 I have no reason to doubt, and do not doubt, that this email of 14 October 2020 was sent in good faith, and that the instructions to send it were likewise given in good faith. That does not mean it amounts to evidence admissible for the purposes of the trial. In the circumstances, all that I do is act on the basis that the abrupt, final severance of telephone communication by AJ on 13 October 2020 was not a deliberate cessation on AJ's part. Perhaps it was for the reason of an asserted medical condition, perhaps it was just a failed telephone link. Either way, the provision for written submissions was, and remains, sufficient in my view to discharge such procedural fairness obligations as remained necessary to afford to the parties and, in light of s 37AO(4), the respondents in particular. I am confirmed in that view by AJ's ability, and that of Ms Nguyen, to engage in email correspondence with the Registry after 14 October 2020. It is obvious from this correspondence that they were aware of the order of 13 October 2020 making provision for written submissions. In the result, no written submission was filed thereafter by any respondent. I have, however, taken into account AJ's submission of 21 October 2019, prepared as it was for the purposes of the trial originally fixed to occur before Collier J on 6 November 2019.
60 Neither AJ nor Ms Nguyen nor any other respondent for that matter filed evidence in respect of the substantive application in accordance with the various directions made over time by the Court. Out of an abundance of caution, because no respondent was legally represented, I have nonetheless assumed that AJ relied on his affidavit filed on 13 August 2020 not just in support of his interlocutory application but substantively.
61 AJ's affidavit filed on 13 August 2020, his interlocutory application of 11 August 2020, his interlocutory application dated 14 April 2020 and his proposed cross-claim each indicate a continuing disposition to attempt to agitate issues which were, or could have been, raised in the Cairns proceeding. So, too, does his submission of 21 October 2019. That disposition was also starkly revealed in the oral submissions which he made on 13 October 2020.
62 Before turning to consider whether BJ should be granted any or all of the relief sought by his amended application, it is first necessary to confront and determine AJ's application that I ought to disqualify myself on the basis of bias.
63 Adverse outcomes in relation to interlocutory applications or attempted filings are not proof of actual bias, although I acknowledge that AJ is by no means unique amongst litigants in person in having such a view. Neither is there anything in those outcomes or in the conduct of case management or of the trial itself which, in my view, is capable of giving rise to a reasonable apprehension that I might not bring an impartial and unbiased mind to the hearing and determination of the present proceeding. As to apprehended bias, that is the relevant test: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [31], and the authorities cited at fn 27. All that has occurred and which, reasonably, would be seen to have occurred, is the progression of the proceeding to its final determination in a way which affords the parties an opportunity to be heard in relation to issues properly before the Court. I therefore decline to disqualify myself.
64 Is then BJ entitled to any relief?
65 A salutary starting point in answering the question just posed is an observation made by Kirby J in Lindon v Commonwealth (No 2) (1996) 70 ALJR 541, at 544, "[i]t is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests." That observation was made in the context of an application for the summary dismissal of the proceeding, but it has a much wider resonance. The relief which BJ seeks would not deprive any of the respondents of access to this Court generally but it would inhibit as of right access in particular defined circumstances. The imposition of an inhibition on such an important civic right is not to be taken lightly. It is, however, also to be remembered that a concomitant of the right of access to the courts of law is the exercise of that right in accordance with the practice and procedure of the court concerned, including directions and orders made in relation to practice and procedure. Litigants in person enjoy no special exemptions from a court's practice and procedure. In particular circumstances, judges, registrars and other court officers can and ought to provide assistance to a litigant in person so as to facilitate access to justice but that does not extend to providing judicial advice or to placing them in a superior position to any other party to a proceeding: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 147 ACSR 227.
66 In instituting the Cairns proceeding, AJ sought an exercise of judicial power by a court of competent jurisdiction. AJ made reference, more than once, in his various submissions to fraud in relation to the Rainbow Trust and the 2014 share transfer controversy. Whether or not there was any such fraud is an issue which was, or could have been, raised in the Cairns proceeding.
67 I am prepared to accept, and do accept, that, if the security for costs order made in the Cairns proceeding were itself procured by fraud, this would be relevant to whether or not to grant the relief sought by BJ in the present proceeding. However, reflecting the British heritage of our system of justice and unlike some other countries, judicial proceedings are adversarial, not inquisitorial, in character. It is not just that AJ, Ms Nguyen and other respondents must allege that to be the case in relation to the making of that order. That fact must be proved by them. It is no part of the judicial function to investigate such an allegation.
68 As alleged by AJ, part and parcel of the fraud constituted by the making of the security for costs order in the Cairns proceeding is that Henry J was a party to it because of an alleged personal association with BJ. Perhaps wrongheadedly, it was the existence of that allegation which informed my granting leave to AJ to cross-examine BJ to the limited extent of permitting him to put such an association and related alleged corrupt consequence to him.
69 Conduct of that kind by a judicial officer would amount to an offence against s 120 of the Criminal Code 1899 (Qld) (Code). Conceivably, the allegations made by AJ might entail other offences against Chapter 16 of the Code. The allegation made by AJ is therefore a grave one. He is not obliged in the present proceeding to prove that allegation beyond reasonable doubt, only on the balance of probabilities: s 140(1) Evidence Act 1995 (Cth) (Evidence Act). The character of the allegation is nonetheless relevant to what is to be regarded as acceptable proof: s 140(2), Evidence Act. "[i]nexact proofs, indefinite testimony or indirect references" are insufficient: Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. In the present case, there are not even such proofs, testimony or references in the evidence. There is only, with respect, an animus on the part of AJ, fuelled by vexation as to the effect of a security for costs order. In fairness to BJ and to Henry J, it should be clearly stated that there is no evidence at all that the security for costs order made in the Cairns proceeding was procured by fraud. However, that AJ would make such an allegation without any supporting evidence is yet further proof of his disposition to subvert the effect of that order.
70 The power to make such an order under s 37AO of the FCA Act is engaged if the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. In Fuller v Toms (2015) 234 FCR 535, at [31] (Fuller v Toms), the Full Court stated:
Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament via the Vexatious Actions Act 1869 (UK) (59 & 60 Vict. C. 51) of a need for a power to effect just such a balance.
71 In Fuller v Toms, at [33], the Full Court referred with approval to observations made by Pagone J in Garrett v Federal Commissioner of Taxation (2015) 147 ALD 342 in relation to the word, "frequently" and to an exposition of it by Perry J of applicable principles in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449:
33 In Garrett v Federal Commissioner of Taxation, at [8], Pagone J observed of the word "frequently" in s 37AO that it, "has its ordinary meaning and is not given a specific statutory meaning for the purposes of s 37AO(1) (the former O 21, r 1 of the Federal Court Rules had imposed the higher threshold of the need to establish that vexatious proceedings had been conducted 'habitually, persistently and without reasonable grounds')". We agree. As did Pagone J, we adopt as correct the following exposition offered by Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (the HWY Case) of the meaning of that word as found in s 37AO(1)(a):
5.3.5 Were vexatious proceedings instituted or conducted by Mr Jarvie "frequently"?
110 Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings "frequently". As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [11]:
It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb "frequently" could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law - see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported - Supreme Court NSW, Holland J - 29 March 1978).
111 Without detracting from the seriousness of the consequences of such an order, the use of the term "frequently" nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted "habitually and persistently". That test had been said to imply "more than great frequency", the word "[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; 'persistently' suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness": Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J.
112 The term "frequently" is a relative term and "must be looked at in the context of the litigation being considered": Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the Court may find that a person has instituted or conducted vexatious proceedings "frequently" even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 at [77] (Barker J).
113 Thus in Fuller, for example, the applicant against whom a vexatious proceedings order under s 37AO was made had commenced five separate proceedings over a period of approximately five years. Having regard to the circumstances and the conduct of those various proceedings, Barker J was satisfied that the applicant had "frequently" instituted and conducted proceedings of the type contemplated by s 37AO notwithstanding that "the number of proceedings may be considered small". Similarly, in Jones, in determining whether the applicant had "frequently" instituted proceeding for the purposes of former O 63, r 6(1) of the High Court Rules, Toohey J held that the five proceedings initiated by the applicant during a six year period "readily answer[ed] that description".
114 In short, there being no numerical threshold prescribed by Part VAAA itself, the question of whether an applicant has "frequently" instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case.
72 Under the terms of the deed governing Alan's Trust, AJ holds the office of "Appointer": see p 15 of the trust deed (annexed to the affidavit of BJ, filed on 19 June 2019). As "Appointor", AJ has power to remove a trustee of that trust, to appoint an additional trustee(s) and to appoint a new trustee(s): cl 16(a) of the trust deed. Looking at the plethora of litigation detailed above, I have no doubt, and find, that AJ has exercised his power as Appointor whenever he considered it forensically expedient in his determined endeavours to subvert the operation of the security for costs order made by Henry J in the Cairns proceeding.
73 For the purposes of s 37AO, the Second NSW proceeding was a proceeding "instituted" by AJ. The definition of "proceeding" for the purposes of the FCA Act (see s 4) includes, "an incidental proceeding in the course of, or in connexion with, a proceeding". Thus, the summons filed by AJ in the Second NSW proceeding on 4 September 2015 is also, for the purposes of s 37AO, a "proceeding" "instituted" by AJ. Each of these proceedings was vexatious in that they formed part of an endeavour by AJ to subvert the effect of the security for costs order made by Henry J in the Cairns proceeding on 30 June 2015. I also respectfully concur with the observation made by Brereton J in relation to the Second NSW proceeding, quoted above, that it was within the jurisdiction of the Supreme Court of New South Wales solely by virtue of the operation of the cross-vesting scheme. The subject of that proceeding had no connection with New South Wales.
74 The First NSW proceeding was instituted not by AJ but by Mijac, which I find to be his emanation. Viewed against the whole of the plethora of litigation detailed above, the First NSW proceeding can be seen to be the first example of a pattern whereby AJ or an entity controlled by him or a proxy institutes an alternative proceeding to meet the contingency of an adverse outcome in existing litigation. The amended application which AJ filed in the First NSW on 6 July 2015 so as to add himself and Mrs Jorgensen as plaintiffs was, given the s 4 definition of "proceeding", a proceeding instituted by AJ. Coming so soon after the security for costs order in the Cairns proceeding, the timing of that application was unlikely to have been a coincidence.
75 The First NSW proceeding concerned issues which were, or could have been, raised in the Cairns proceeding. The subject of the First NSW proceeding had no connection with New South Wales and was within the jurisdiction of the Supreme Court of New South Wales solely because of the operation of the cross-vesting scheme. It was for these reasons a vexatious proceeding. The attempted addition of AJ and Mrs Jorgensen as plaintiffs did not change this feature. The application to secure the addition of AJ and Mrs Jorgensen as plaintiff parties was therefore vexatious.
76 Although neither proceeding 641/16 nor proceeding D66/16 was instituted by AJ, his daughters TLJ and JJ were, I find, his proxies. The timing of the institution of these proceedings was not coincidental, nor was their subject matter. Each, I find, was an endeavour by AJ to have in place an alternative to the Cairns proceeding and to his then current endeavour to subvert the effect of the costs order made in that proceeding. Each was transparently subversive of the security for costs order made in the Cairns proceeding. For these reasons, each was a vexatious proceeding. Their present relevance is the indication they provide of the willingness of AJ to use a proxy to advance his perception of injustice in relation to the Rainbow Trust and the 2014 share transfer controversy. Proceeding D180/16 is another example of this type of vexatious proceeding. So, too, are proceeding NSD979/18 and proceeding NSD83/19 filed in this Court.
77 Proceeding NSD756/19 was both instituted and conducted by AJ. It was, as I have found, an endeavour to re-agitate issues which were, or could have been, raised in the Cairns proceeding. It was, transparently, subversive of the effect of the security for costs order made in that proceeding. It was therefore a vexatious proceeding.
78 I have already indicated that the notice of cross claim given by AJ, the filing of which was prevented by the order made by Collier J on 4 July 2019, is relevant for the insight which it offers as to AJ's disposition. It may have a further relevance, although not, in the circumstances of the present case, to any different end. By s 37AO(6) of the FCA Act, in deciding whether to be satisfied in terms of s 37AO(1), the Court may have regard to, inter alia, "proceedings … attempted to be instituted … in any Australian court". The general position is that a counterclaim is regarded as a proceeding in its own right: Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202, at 217 - 222, per Menhennitt J; see also Henriksens Rederi A/S v THZ Rolinpex; The Brede [1973] 3 WLR 556, at 561 - 562, per Lord Denning MR. The equivalent in this Court of a counterclaim is a cross claim. That is instituted by the filing of a notice of cross claim: r 15.02 in the Rules. Subject to the requirement for the giving of such a notice (as opposed just to including a cross claim in a pleading), it seems to me that the governing rule, r 15 in the Rules, does not alter this general position. It is therefore at least arguable that, when AJ sought to file his notice of cross claim in the present proceeding, he was, for the purposes of s 37AO of the FCA Act, attempting to institute a proceeding in an Australian court namely, this Court. It is not, however, necessary to institute any concluded view on this subject. That is because, even if the notice of cross claim cannot be so regarded, AJ in any event, having regard to the proceedings which AJ has instituted and conducted, as just detailed, and to adopt a description used by Sofronoff P in Jorgensen v Jorgensen, exemplifies a "textbook [example]" of a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. His attempted filing of a cross-claim in the present proceeding underscores his disposition to vexatious litigation in respect of the Rainbow Trust and the 2014 share transfer controversy, even if it cannot be regarded as the attempted institution of a proceeding in terms of s 37AO(6).
79 As to s 37AO(6), the same observations may be made in relation to the notice of cross claim Ms Nguyen attempted to file in this proceeding.
80 As to Ms Nguyen, her institution of proceeding 2020/221724 in the Supreme Court of New South Wales is a transparent attempt to subvert the security for costs order made in the Cairns proceeding. As I have found, she is a proxy for AJ, acting in concert with him. Indeed, she is but the latest proxy. It is no coincidence that she assumed that role after the deaths of other individuals who had hitherto fulfilled that role namely, TLJ and Mrs Jorgensen, as is revealed by the detailing above of the plethora of litigation. Proceeding 2020/221724 is a manifestation of the pattern, also so revealed, of AJ using his power as Appointor of Alan's Trust so as to have in place, via a proxy individual or corporate entity controlled by him, litigation subversive of the orders in the Cairns proceeding. In addition to Ms Nguyen, FFB and Mijac have each earlier fulfilled such a role. These two corporate respondents have each acted in concert with AJ. It is patent, too, that PPB Co was intended by AJ to fulfil a like role as the "new co-trustee" of Alan's Trust.
81 By s 37AO(1) of the FCA Act, it is provided:
(1) This section applies if the Court is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.
82 Section 37AO was one of the provisions inserted into the FCA Act by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). In the Explanatory Memorandum circulated by the Attorney-General in respect of the Bill which became that Act, the following statement is made, at [265], in respect of what became s 37AO(1)(b) of the FCA Act:
265. However, where it is claimed that the person is `acting in concert' with another person, the Court will have to be satisfied that the second person was subject to a vexatious proceedings order or had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. This is designed to ensure that a person who is already subject to a vexatious proceedings order or at risk of such an order could not avoid its consequences by arranging for another person to initiate proceedings instead. This approach is consistent with the provisions enacted in vexatious litigant laws in Queensland (Vexatious Proceedings Act 2005) the Northern Territory (Vexatious Proceedings Act 2007) and New South Wales (Vexatious Proceedings Act 2008).
This statement, with respect, offers an accurate summary of the purpose of s 37AO(1)(b) of the FCA Act. In turn, Queensland's Vexatious Proceedings Act, mentioned in the passage quoted from the Explanatory Memorandum, was developed on the initiative of the Standing Committee of Attorneys-General as a template for nationally consistent legislation: Smith S, Maverick Litigants (Maverick Publications, 2009) p 60. It is a law reform measure, designed to address a weakness in an earlier focus just on a person "who habitually and persistently and without any reasonable ground institutes vexatious legal proceedings", the origins of which focus may be traced to the Vexatious Actions Act 1896 (UK). That weakness was that this focus did not prevent a vexatious litigant, if so disposed, engaging proxies or others acting in concert to circumvent the personal application of a vexatious litigant order or amenability to such an order. The present case offers a "textbook example" of that type of behaviour and how the wider focus of the template operates to address it.
83 On the findings I have made, I am satisfied that s 37AO(1)(a) of the FCA Act is applicable to AJ. He has frequently both instituted and conducted vexatious proceedings in Australian courts. I am also satisfied, for the reasons given above, that s 37AO(1)(b) is applicable to each of Ms Nguyen, FFB and Mijac. They have each, acting in concert with AJ, a person to whom s 37AO(1)(a) of the FCA Act applies, instituted or conducted vexatious proceedings in an Australian court.
84 BJ is entitled to a vexatious proceedings order under s 37AO of the FCA Act as against AJ, Ms Nguyen, FFB and Mijac adapted to preventing, without leave, the institution of a proceeding in relation to the Rainbow Trust or the 2014 share transfer controversy. The formulation adopted by the Queensland Supreme Court for the targeting of the orders made under the Vexatious Proceedings Act is, in my respectful view, apt also for the orders under s 37AO.
85 As BJ correctly conceded in submissions, PPB Co has not instituted or conducted any proceeding. On 22 March 2019, before Gleeson J, AJ foreshadowed an application for the substitution of PPB Co for TLJ. However, in the result, no joinder application was filed, or sought to be filed, in accordance with the directions her Honour made that day. In these circumstances, I do not consider that it can be concluded that PPB Co has attempted to institute a proceeding. Thus, neither s 37AO(1)(a) nor s 37AO(1)(b) of the FCA Act is applicable to it.
86 BJ submitted that s 23 of the FCA Act was a source of power to restrain PPB Co from instituting a proceeding in relation to the Rainbow Trust or the 2014 share transfer controversy.
87 Section 23 of the FCA Act is a source of power within jurisdiction, not a source of jurisdiction. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, at 622, Deane J (Mason CJ, Wilson and Dawson JJ agreeing) observed "the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction." BJ has invoked a jurisdiction conferred by s 37AO of the FCA Act. Further, as Lander J observed in Rana v Commonwealth of Australia [2008] FCA 907, at [55], "[t]his Court has an implied incidental power to prevent an abuse of its processes." Further, the categories of abuse of process remain open: Rogers v The Queen (1994) 181 CLR 251, at 286, per McHugh J.
88 I have no doubt, based on AJ's statement to the Court on 22 March 2019 and his control of PPB Co, that PPB Co was, on 22 March 2019, acting in concert with AJ. I also consider it inherently likely in light of these facts and the pattern revealed in the plethora of litigation detailed above that, unless subject to some form of restraint, PPB Co may be used by AJ as a vehicle for vexatious litigation in this Court in relation to the Rainbow Trust and the 2014 share transfer controversy. Of course one option might be just to wait and see whether this likelihood becomes an actuality. If it did, BJ might then seek an order under s 37AO of the FCA Act against PPB Co. That would visit yet further expense upon BJ in addition to the expense which he has already incurred in meeting a plethora of vexatious litigation instituted by AJ, his proxies or entities controlled by him in this Court, the Queensland Supreme Court and in the New South Wales Supreme Court. Further, BJ has already been put to the expense of seeking and obtaining vexatious proceedings orders in the Supreme Court of Queensland. The later institution of proceedings in this Court and in the New South Wales Supreme Court is proof perfect of AJ's continued disposition, even in light of the experience of the making of those orders in the Queensland Supreme Court to continue to seek to subvert the security for costs order made in the Cairns proceeding. In my view, it is necessary in order to prevent the subversion of the orders which are to be made in the exercise of the Court's jurisdiction under s 37AO in this proceeding additionally to subject PPB Co to a requirement that it not, without leave first had and obtained, institute in this Court a proceeding in relation to the Rainbow Trust or the 2014 share transfer controversy. I consider that, in terms of s 23 of the FCA Act, such an order is "appropriate". Further, I do not consider that s 37AO is exhaustive of this Court's powers to prevent an abuse of its processes.
89 BJ also sought, again in reliance on s 23 of the FCA Act, an ancillary restraint on the exercise by AJ of his power as Appointor of Alan's Trust to appoint yet further additional or replacement trustees so as to institute yet further litigation subversive of the security for costs order made in the Cairns proceeding. The plethora of litigation detailed above offers eloquent proof of AJ's disposition so to exercise that power. In order to ensure the efficacy of the orders which will be made under s 37AO and to prevent any further abuse of process by AJ, his individual proxies or corporate entities controlled by him, I consider it is necessary to grant such ancillary relief, once gain directed to the preventing of a proceeding in this Court in relation to the Rainbow Trust or the 2014 share transfer controversy. In addition to s 23 of the FCA Act, power to make an order of this kind is in any event found in s 37AO(2)(c) of that Act. That is because such an order is appropriate in relation to AJ so as to assist in the prevention of any attempt by him to subvert the operation of the primary restraint upon him.
90 BJ, understandably, sought that the restraint extend to other courts but I do not consider it within power to make an order of that width. Therein may lie one weakness in the current template model in respect of the prevention of vexatious litigation. Related to that and as this case so effectively demonstrates, the capacity of a truly determined vexatious litigant, and AJ is a paradigm example, to forum shop and oppress the target of grievance, and BJ is that, should never be underestimated. Once a superior court has made orders of the kind made by the Queensland Supreme Court as outlined above, there ought, in my view, be provision for their entry in a national register of vexatious litigants and a related, rebuttable presumption requiring leave of the court concerned before initiating process is accepted for filing that any proposed litigation by a person on that register in any other Australian court relating to the same subject matter is vexatious.
91 For these reasons, there will be orders in respect of BJ's application to the extent indicated above.
92 As to costs, costs should, in respect of AJ, follow the event. As to the corporate respondents, each has been served but none has entered an appearance via a lawyer. Further, for the reasons indicated, I declined to grant leave to AJ to make submissions on their behalf. Ms Nguyen appeared but did not make any submission either orally or later in writing. For reasons given above, I declined to grant leave to AJ to represent her. This absence of active contradictor participation may be relevant in relation to whether to award costs against these respondents, if sought. I shall therefore make provision for BJ to make such application, if any, as he may be advised, within a short time, in relation to an order for costs against these respondents. In the event that there is no such application, there will be no order as to costs as against these respondents. For the present, as against these respondents, costs stand reserved.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.