Practice and procedure - Motion to set aside part of deed of settlement and consequential orders of the Court - Fraud alleged - Mode of procedure

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235

Hip Foong Hong v H Heotia and Co [1918] AC 888

Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217

Lewandowski v Lovell (1994) 11 WAR 124

Mickelberg v The Queen (2004) 29 WAR 13

Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691

Ansett Transport Industries (Operations) v Newtons Travel Services Pty Ltd (in liq) [1990] VicRp 3; [1990] VR 37

Birkett v James [1978] AC 297

Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130

Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 18 WAR 334

de Lasala v de Lasala [1980] AC 546

Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134

Hughes v Gales (1995) 14 WAR 434

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Jonesco v Beard [1930] AC 298

Luxford v Reeves [1941] VicLawRp 25; [1941] VLR 118

McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529

Nichols v Carpenter [1974] 1 NSWLR 369

Permanent Trustee Co (Canberra) Ltd (as Executor of Estate of Andrews) v Stocks & Holding (Canberra) Pty Ltd (1986) 15 ACTR 45

R v Smith [2002] NZCA 335; [2003] 3 NZLR 617

Snowy Mountains Hydro­Electric Authority v Cicic (1964) 81 WN (Pt 1) (NSW) 232

Stern v Friedmann [1953] 2 All ER 565

"TK" v Australian Red Cross Society [1989] 1 WAR 335

Tuckett v Blake (1988) 14 VLR 264

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: The applicant, Lovell, seeks orders including orders to set aside a deed of settlement and consent orders made pursuant to it, discontinuing certain actions and a declaration of abuse of process.

3 It is entirely understandable that the applicant would want to be publicly vindicated in the circumstances outlined by Pullin JA, whose reasons I have had the benefit of reading in draft.

4 But there are real obstacles in the way he has chosen to do that. The evidence most recently given by Lewandowski by affidavit and orally, admitting to corrupt and unlawful behaviour in relation to the Mickelbergs, and indeed in his action and that of Hancock against the applicant, does, on the face of it, reveal an abuse of process, amongst other things. However, Lewandowski's evidence goes only to his own conduct and that of Hancock. The other police officers or former police officers concerned, who are plaintiffs in a number of the subject actions, deny any knowledge of, or involvement in, those activities and have filed affidavits to that effect.

5 The applicant's claims against them have not been tried, much less proven, and Lewandowski's evidence does not relate to them. Their actions were discontinued pursuant to the deed of settlement. Furthermore, the parties to that deed are not parties to this appeal and are not before the Court. In addition, there were, of course, other consequences which flowed from the deed. One was the payment to the applicant of a substantial sum of money. If the deed were to be set aside, that money would have to be repaid (possibly with interest). The applicant has said nothing about that.

6 The applicant's motion in this appeal is not an appropriate way of trying the issues which would necessarily need to be tried and resolved before the deed and the discontinuances based on it could be set aside.

7 So far as the actions by Hancock and Lewandowski themselves are concerned, they were actions in defamation which did not survive their deaths and so cannot be revived in any event.

8 I would also accept the submissions by Ms Ridley for the appellants she represents, that this Court does not have jurisdiction to make the orders now sought.

9 The substantive action was discontinued. There cannot be an appeal in an action which has been discontinued, unless the action is first reinstated. That has not been done. Furthermore, the decision the applicant seeks to have overturned is a decision of the Full Court of the Supreme Court. That has been replaced by this Court (see eg s 38 Acts Amendment (Court of Appeal) Act 2004 (WA)). There is no appeal from one Bench of this Court to another Bench of this Court - any appeal would have to be by way of special leave to appeal to the High Court.

10 Beyond that, there is no practical outcome to be achieved, and even with jurisdiction, a court ought not to make pointless orders.

11 I otherwise agree with the conclusions expressed by Pullin JA for the reasons he gives.

12 PULLIN JA: This is a motion by the respondent who is self-represented for:

(i) so much of a deed of settlement dated 20 September 1996 which relates to actions said to be subject of this appeal and in particular action numbers CIV 1331/85 Lovell v Lewandowski; CIV 1562/86 Billing v Lovell; CIV 2119/86 Hancock v Lovell; CIV 2120/86 Henley v Lovell; CIV 2121/86 Hooft v Lovell; CIV 2122/86 Henning v Lovell; CIV 2123/86 Round v Lovell; CIV 2124/86 Tovey v Lovell; FUL 26/1992 Lewandowski & Ors v Lovell; FUL 54/1992 Lovell v Billing; FUL 108/1992 Lewandowski v Lovell; Appeal P6/1994 (High Court) Lovell v Lewandowski & Ors; FUL 5/1995 Lovell v Lewandowski & Ors;

(ii) consent orders made on 24 September 1996 by Registrar Powell in chambers which orders discontinued the actions referred to above. (Paragraph 2 of the motion).

(b) an order that this appeal be "declared null & void" and the judgment of Master Adams made 11 February 1992 "dismissing the actions for want of prosecution be restored" . (Paragraph 3 of the motion).

(c) An order allowing the cross-appeal. (Paragraph 4 of the motion).

(d) A declaration of abuse of process in respect of the seven consolidated actions referred to below and the action CIV 1562 of 1986. (Paragraph 4 of the motion).

(e) alternatively, a declaration that "each of the actions the subject of the appeal and cross-appeal and of Billing ... is ...an abuse of process" and be struck out on the basis of fresh evidence now available to the Court in the form of:

(i) the evidence of Anthony Lewandowski from 27 September 2002 to the Court of Criminal Appeal in Mickelberg v The Queen (2004) 29 WAR 13;

(ii) the affidavit of Anthony Lewandowski sworn 30 September 2003 and filed in this appeal;

(iii) the judgment of the Court of Criminal Appeal in Mickelberg v The Queen. (Paragraph 5 of the motion).

(f) orders that the court "have regard" to certain affidavits filed in this appeal and affidavits filed in CIV 2034/2003, CIV 2250/1990 and CIV 1562/1986. (Paragraph 6 of the motion).

(g) an order for costs of the appeal and the actions.

(h) the appellants to pay the respondent's cost of the appeal and of the actions on an indemnity basis forthwith.

13 Early in March 1985 a book called the "The Mickelberg Stitch", written by the respondent, was published. The book concerned the investigation and prosecution of the Mickelberg brothers in relation to the theft of gold from the Perth Mint in 1982.

14 On 19 March 1985, the appellant Lewandowski (now deceased) was granted an ex parte interim injunction restraining the sale and distribution of the "The Mickelberg Stitch". Lewandowski was a detective involved in the investigation of the theft of the gold from the Mint.

15 On 21 March 1985, Lewandowski issued a writ CIV 1331/1985 claiming damages for libel in relation to the "The Mickelberg Stitch", and a chambers summons to extend the interim injunction which had been granted. The statement of claim in its later amended form complained that the words published in the "The Mickelberg Stitch", in their natural and ordinary meaning, meant, and were understood to mean, that Lewandowski fabricated evidence, gave false evidence in court, conspired to concoct a case against a suspect and assaulted people to gain evidence.

16 On 26 March 1985, the interim injunction was struck out for want of the supporting affidavit. On 17 May 1985, an application by Lewandowski for an interlocutory injunction restraining the respondent from selling or distributing the "The Mickelberg Stitch" was granted.

17 On 18 October 1985, an appeal by the respondent against the interlocutory injunction was allowed. The injunction was discharged because the respondent said to the Full Court that he proposed to justify the defamatory statements contained in "The Mickelberg Stitch".

18 On 16 May 1986, E G Billing, a policeman who worked in the Police Scientific branch and was involved in the Perth Mint theft investigation, issued a writ in CIV 1562 of 1986 claiming damages for libel in relation to the words published in "The Mickelberg Stitch". The imputations pleaded were that Billing participated in a conspiracy to concoct a case against Raymond, Brian and Peter Mickelberg or any one or other of them, and that Lewandowski participated in the fabrication of fingerprint evidence against Raymond Mickelberg.

19 On 9 September 1986, policemen by the name of Hancock, Henley, Hooft, Henning, Round and Tovey issued writs in CIV 2119 - 2124/1986 claiming damages for libel in relation to "The Mickelberg Stitch". The six actions CIV 2119 - 2124/1986 were consolidated with Lewandowski's action CIV 1331/1985 ("seven consolidated actions"). Billing's action was not consolidated with them. The respondent applied to strike out the seven consolidated actions for want of prosecution and in the alternative sought an order that the actions be permanently stayed. The respondent also applied for a permanent stay of the Billing action.

20 In 1990 the respondent issued a writ in action CIV 1093/1990 against the Western Australian Police Union of Workers ("the Police Union") and its official PJE Stingemore. In this the respondent claimed damages for libel by the Union and Stingemore as a result of words published by them on Channel 9 about "The Mickelberg Stitch". Another action CIV 2250/1990 was commenced by the respondent against the Union seeking damages for libel in a magazine.

21 On 11 February 1992, Master Adams struck out the seven consolidated actions and declined to make an order permanently staying those actions. The Master dismissed the respondent's application for a permanent stay of the Billing action.

22 On 28 February 1992, Lewandowski and the other plaintiffs in the seven consolidated actions appealed in this appeal (FUL 26/1992) against Master Adams' decision striking out those actions. Lovell then cross-appealed against the Master's refusal to permanently stay the seven consolidated actions. The respondent also instituted an appeal (FUL 54/1992) against Master Adams' refusal to stay the Billing action. On 13 May 1992, Master Adams ordered an inquiry as to damages suffered by the respondent in the action by Lewandowski as a result of the injunction granted on 19 March 1985 and the interlocutory injunction granted on 17 May 1985. Lewandowski appealed against this order in appeal FUL 108/1992.

23 Appeal numbers FUL 26/1992, FUL 54/1992 and FUL 108/1992 were all heard together. On 24 March 1994, in Lewandowski v Lovell (1994) 11 WAR 124, the Full Court allowed the appeal in FUL 26/1992 by Lewandowski and the other plaintiffs in the seven consolidated actions and dismissed the cross-appeal by the respondent. The appeal by the respondent in appeal FUL 54/1992 was dismissed and the appeal by Lewandowski in appeal FUL 108/1992 was allowed. The effect of all this was that Master Adams' order striking out the seven consolidated actions was set aside. The respondent's cross-appeal and his appeal against Master Adams' refusal to stay the Billings action were dismissed and the order that there be an inquiry as to damages suffered by the respondent in relation to the injunctions, granted on Lewandowski's application, was set aside.

24 Steps were then taken to bring the seven consolidated actions and Billing's action to trial. However before trial, and on 20 September 1996, a deed of settlement was executed by Lovell, the Police Union and Stingemore. Pursuant to that deed of settlement the respondent was to be paid a substantial sum of money once the Police Union received notices of discontinuances from the plaintiffs in the seven consolidated actions and the Billing action and the plaintiffs in other actions and the appellants in some of the appeals referred to above and other appellants in other appeal. Details about these other proceedings were set out in the first schedule to the deed. It was agreed that a consent order should be made discontinuing the actions CIV 1093/1990, CIV 2250/1990 and an appeal FUL 54/1994 (concerning some aspect of the litigation between the respondent and the Police Union). Consent orders were then made discontinuing those three proceedings, the seven consolidated actions, the Billing action and other proceedings referred to in the first schedule to the deed of settlement.

25 Over five years later, on 5 June 2002, Lewandowski swore an affidavit concerning his part in the investigation into the Mint theft and on 27 September 2002 in the hearing of the appeals CCA 136 and 137 of 2002, Lewandowski gave evidence. He said in the affidavit and in his evidence that he and Detective Donald Hancock had assaulted Peter Mickelberg, fabricated a written record of an interview with Peter Mickelberg and given false testimony at the trial of the Mickelbergs. The hearing of the appeal was completed on 12 December 2003. The Court of Criminal Appeal regarded Lewandowski as an unsatisfactory witness but held that his evidence was capable of acceptance by a jury. As a result, on 2 July 2004, based on that evidence, judgment was delivered in Mickelberg v The Queen (supra) allowing the Mickelbergs' appeals against their convictions.

26 On 30 September 2003 an affidavit sworn by Lewandowski was filed in these proceedings. He swore that he had never "actually" given any instructions for his defamation action against the respondent. He said the Police Union would "just send me something" and he would sign it or swear it if it was an affidavit. He said he never had any intention of going to trial.

27 The respondent alleges that the other plaintiffs in the seven consolidated actions and Mr Billing, never intended to go to trial on their defamation actions and that they brought the actions for the ulterior motive of deterring investigation or exposure of criminal conduct by the police in the Mint fraud investigation. The respondent therefore alleges fraud on their part.

28 The policemen in the seven consolidated actions (other than Lewandowski and Hancock, both of whom have died) and Billing, have all sworn affidavits in opposition to the notice of motion. They all swear that the evidence they gave at the criminal trial of the Mickelbergs in the District Court was true and correct. They all depose in their affidavit that they believed they were defamed in the "The Mickelberg Stitch" and all of them, except Henley, say that they were not aware of any criminal conduct on behalf of any officers involved in the Perth Mint fraud investigation. So far as Henley is concerned, his affidavit deposes to the fact that he saw Peter Mickelberg after Peter Mickelberg was interviewed at the Belmont CIB office (where Lewandowski said that Peter Mickelberg was assaulted). Henley's affidavit deposes to the fact that he saw no evidence of any injuries on Peter Mickelberg and that Peter did not complain about his treatment. This Court was also provided with copies of affidavits sworn by Messrs Billing, Round, Hooft, Tovey and Henning in the defamation actions each of them had brought. In the case of each affidavit the policeman deposes that the defamation proceedings had not been instituted to deter investigation or exposure of any criminal conduct and that until settlement of the action, their intention was always to proceed to trial.

29 The respondent's allegations of fraud against the surviving policemen therefore remain unproven assertions in these proceedings and the assertions are denied on oath by Messrs Billing, Round, Hooft, Henley, Tovey and Henning.

30 The discontinuance orders can only be set aside if the deed of settlement is set aside. That is because, as a matter of construction of the deed, it seems reasonably plain that the parties contemplated that the settlement to which the deed gave effect would have the effect of putting an end to a variety of related proceedings, including the seven consolidated actions. The reason for that, we were given to understand during Mr Lovell's submission to us, was that the Union was contributing funds towards the costs of the plaintiffs in the seven consolidated actions.

31 In Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 696 - 697, Handley JA spoke of the nature of the jurisdiction invoked to set aside a consent judgment. Reference was made to Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243 - 244 where the High Court said concerning the compromise of an action:

"... The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice ... but there is a dictum of Lindley LJ which is distance enough '... nor have I the slightest doubt that a consent order may be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses .... To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if the agreement cannot be invalidated the consent order is good.' Huddersfield Banking Co Ltd v Lister [1895] 2 Ch 273 at 280."

32 Handley JA also referred to authority which supported the conclusion that as a matter of convenient practice, jurisdiction to set aside a consent order should be invoked by a new action brought for that purpose and not by a motion in the original proceedings. In particular he referred to Hip Foong Hong v H Heotia and Co [1918] AC 888 at 894 where the Privy Council, although noting that a motion for a new trial is an "available weapon", which may in some cases be more convenient, said:

"... where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined ..."

33 The deed of settlement cannot possibly be set aside in this appeal for two reasons. First, this appeal was an appeal instituted by the appellants against Master Adams' decision striking out the seven consolidated actions. This appeal has nothing to do with the consent orders which were made discontinuing the seven consolidated actions and other litigation after the appeal was disposed of. Secondly, even if there were no other reason, the deed of settlement is a deed the parties to which are the respondent, the Police Union and Mr Stingemore. The Police Union and Mr Stingemore are not parties to this appeal. No order could be made setting aside the deed in whole or in part without hearing from the Police Union and Mr Stingemore. They could not be heard on this motion because they are not parties to the proceedings.

34 By saying that separate proceedings would be necessary to set aside the deed of settlement, I do not mean to encourage the respondent to do so. If orders were made to set aside the orders discontinuing the actions by Lewandowski and Hancock it would result in the actions being re-enlivened. Hancock and Lewandowski are now dead. Their actions for defamation could not be reinstated because the actions, if they had been on foot when they died, abated with them. See Fleming: "Law of Torts", 9th ed, 741. Defamation actions were expressly excluded from the preserving effect of s 4 of the Law Reform (Miscellaneous Provisions) Act 1941. Thus, it seems to me that an order could never be made which, to any degree, put the actions by Lewandowski and Hancock back on foot.

35 The respondent also seems to assume that Lewandowski's confessions in affidavits and in evidence to the Court of Criminal Appeal, and the decision of the Court of Criminal Appeal in Mickelberg v The Queen (supra), must necessarily lead to the conclusion that the defamation actions by parties other than Lewandowski were an abuse of process. That is not so. The affidavits of the policemen referred to above show there to be a real contest about this issue.

36 Finally, I refer to par 3 of the motion, which in effect asks this Court to reverse the orders made by the Full Court in this appeal. Assuming there is jurisdiction to do so (as to which see the discussion in Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217), I would, in the exercise of discretion, refuse to consider whether this should happen while the deed of settlement remains undisturbed by any court order.

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