Should leave be granted?
50 In Spencer 241 CLR 118; [2010] HCA 28 at [24], French CJ and Gummow J expressly referred to the need for caution to attend the termination of proceedings summarily. Their Honours referred then to several decisions, including Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 [2006] HCA 27 at [46] and Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57], where the language of "a high degree of certainty" was used. The language of "certainty" is the kind of language the plurality appears to suggest is not necessary under s 31A. In that sense, there may be at least a difference in emphasis between the judgment of French CJ and Gummow J and that of the plurality. However I do not understand the plurality judgment to suggest there should be any dispensation with the firm theme of previous authorities: namely, that such a power must be exercised cautiously.
51 The reasons of the primary judge display a high level of certainty, and that can be seen from the expressions used in some of the passages to which I have already referred. In that sense, the primary judge appreciated the threshold which had to be met for summary judgment, and was clearly satisfied that it was met.
52 On the question of Anshun estoppel, his Honour had no doubt that the claims made by the applicant "naturally belonged" in the respective Supreme Court proceedings he identified, particularly because most of the claims would have provided a basis for setting aside orders made against the applicant. Before me, the applicant raised two criticisms of this approach. First, he submitted there was no authority, and no reasons given, for the use by the primary judge of the expression "naturally belonged".
53 This criticism has no merit. The original phrase picked up in Anshun 147 CLR 589 from Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 is "properly belonged". In Henderson, Sir James Wingram VC described the principle as operating
not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
54 Although the primary judge does not expand on his use of the phrase "naturally belonged", there is no error in his use of the phrase. That he meant nothing different by the use of the adverb "naturally" instead of the adverb "properly" is clear from the primary judge's expression of the test in the conventional way at [42] of his reasons.
55 Second, Mr Shaw submitted that, in circumstances where he was bringing claims against eight respondents who were not parties to any of the Supreme Court proceedings, Anshun principles should not have been applied. The position is not as binary as that. Anshun estoppel can apply in circumstances where the parties to the two sets of proceedings are not the same: see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [83]. A change in the identity of the parties does not prevent an estoppel arising where the second proceeding gives rise, or may give rise if successful, to the existence of conflicting judgments: Anshun 147 CLR 589 at 603-604.
56 The reasons of the primary judge do not expressly address the likelihood of conflicting judgments. However, it is apparent from the reasons that certainly in relation to some of the applicant's claims in the Federal Court proceedings, if he succeeded the relief granted would be inconsistent with orders and judgments of the Supreme Court of Victoria. For example, Daly AsJ's assessment of damages orders could not stand consistently with a finding by the Federal Court that all or some of the evidence adduced before her Honour, and on which her orders were based, was procured by fraud, or was false. That finding would need to be made before the damages claimed by the applicant could be awarded by this Court (if they otherwise could be awarded, a matter I do not decide). Similarly, the injunction granted by Judd J in December 2009 is alleged in the Federal Court proceedings to be based on false evidence by Mr King, tenth respondent in the Federal Court proceedings. A judgment of this Court which found that to be the case would be inconsistent at a substantive level with the orders of Judd J which, like any exercise of judicial power, are based on evidence the Court has accepted to be admissible, true and reliable.
57 There is no merit to the applicant's arguments that the primary judge erred in applying Anshun in circumstances where the parties to the proceedings in this Court were different (as to eight of the ten) to those in the Supreme Court proceedings.
58 The applicant made detailed submissions in respect of the primary judge's conclusion that it would be oppressive to permit the Federal Court proceedings to continue, in that they would require Yarranova and Newquay to join issue again with the applicant, this time collaterally, on the same questions as those raised in the Supreme Court. The applicant criticised, for example, the primary judge's observation (at [46]) that "I have the impression that the applicant's general project is to reduce to the absolute minimum the monetary recovery that Yarranova and Newquay are able to achieve from him, whatever their entitlements under orders by [the Supreme Court]." The applicant submitted that it was perfectly legitimate for him, by appeals, applications for stays, and indeed by other proceedings, to seek to reduce what the respondents might recover from him. In particular, as I have already observed, the applicant referred to the nature of most of the applications and proceedings in the Supreme Court and the fact that they were initiated by the respondents. How, he asked rhetorically in submissions, could it be said that the applicant was oppressing or vexing the respondents in those circumstances?
59 It is, I accept, possible to see the applicant's side of that criticism. If the applicant had been a corporation, legally represented, this long sequence of litigation might be characterised as nothing more than "hard fought". However, as the primary judge concluded (at [46]), the real vice in the current proceedings in this Court is that they seek collaterally to impugn the processes, judgments and orders in other courts (the Victorian Supreme Court, the Court of Appeal and the Federal Circuit Court) and collateral proceedings of that kind - "another … stratagem" as the primary judge described them - are capable of being seen as vexatious. In Ann Street Mezzanine Pty Ltd (in Liq) v Beck (2009) 175 FCR 532; [2009] FCA 333 at [31]-[32], Finkelstein J explained why such a collateral attack is an abuse of process, by reference to Hunter v Chief Constable of West Midlands Police [1982] AC 529:
Unlike issue estoppel which requires an identity of parties, an abuse of process may prevent a person from making a collateral attack on a judgment in an action with a different party. For instance, sometimes a person who has had a full opportunity to present his whole case will not be permitted to reargue the case. In Hunter v Chief Constable of West Midlands Police [1982] AC 529 (the Birmingham Bombers case) the accused had been convicted of murder based on alleged confessions made during interviews with the police. At trial, the accused contested the confession contending they been obtained under duress. Following a voir dire the confessions were admitted into evidence. Further, the jury must have rejected the evidence of the accused concerning the assault because they were convicted of murder. Thereafter Hunter, one of the accused, sued the police for assault. His action was struck out. Lord Diplock (with whom the other Law Lords agreed) acknowledged there was no issue estoppel. Nevertheless, the collateral attack on the jury's verdict was not permitted because it was an abuse of process in that the proceedings constituted a collateral attack upon a final decision which had been made by a court of competent jurisdiction in previous proceedings in which Hunter had had a full opportunity to contest the decision: Hunter [1982] AC at 541.
The basis of the decision in Hunter is that a person is not to be permitted to litigate a second time what has already been decided against him in another case.
60 In my opinion, the feature to which I have just referred is the most critical consideration supporting the primary judge's order for summary judgment. The Federal Court proceedings must of their nature collaterally impugn the processes and judgments of other courts, in circumstances where the appellate processes in those other courts have been available and utilised when the applicant saw fit. Where the underlying disputes between the parties have already been the subject of judicial determination, asking a court which is otherwise a stranger to those disputes to make findings about the giving of false evidence, the suborning of witnesses, the engagement in fraudulent conduct - all abuses of the processes of those other courts - will bring the administration of justice into disrepute. Appellate processes, and claims in those courts' original jurisdiction where there has been fraud or perjury, are there to correct such alleged abuses of process, and to bring finality for the parties.
61 On the bankruptcy proceedings in the Federal Circuit Court, and any connection between those and the allegations in the Federal Court proceedings, the primary judge relied on Anshun estoppel, oppression and bringing the administration of justice into disrepute: at [50]. He was correct to do so.
62 Separately from Anshun, the primary judge also examined the applicant's argument that he was largely proceeding against different parties in the Federal Court. Having analysed the nature of the allegations against those respondents, and found most of them legally wanting, the primary judge concluded that the concept of abuse of process (both as to oppression and bringing the administration of justice into disrepute) should apply as against the other respondents against whom proper allegations are made: namely; MAB and MAB Docklands Pty Ltd. There is no error in the primary judge's approach on this matter.
63 The primary judge also dealt separately with the TPA claims (at [57]-[59]) and found they had no reasonable prospects of success because, rather than the conduct occurring in trade or commerce, it occurred in the setting of, making, reviewing and resisting of court orders. He also dealt briefly, but in my respectful opinion correctly, with the s 53A(2) claim: see [58] of the reasons.
64 In summary, the applicant has no reasonably arguable case of error against the orders and judgment of the primary judge. The primary judge's emphasis on oppression was open to him on the evidence, even if the applicant might see the use of that word as inappropriate as between him and the respondents. Further, the primary judge was in my respectful opinion correct in identifying the applicant's proceedings as bringing the administration of justice into disrepute, and in his identification of the circumstances of Anshun estoppel.
65 More critically, there is no aspect of the applicant's submissions on the application for leave to appeal which persuades me the applicant has any prospects of success on an appeal which must ultimately be decided on the principles set out in House v The King (1936) 55 CLR 499.
66 The applicant has been deprived of any hearing of the merits of his damages claims, which is a significant matter and, from his perspective, a significant prejudice. He is not legally represented and therefore his ability to deal with matters such as Anshun estoppel and the interstices of abuse of process arguments is limited. I have taken those matters into account in reaching my conclusion, but they did not outweigh the very clear lack of prospects for the applicant's claims, nor the underlying abuse of the process of this Court which inheres in them.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.