Von Risefer & ors v State of Qld [2005] QCA 136

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - OTHER MATTERS - where application made to strike out notice of appeal - where appeal made against order for summary judgment - where trial judge found appellants had no prospect of succeeding on any part of their claim - where notice of appeal identified no arguable basis on which decision of trial judge might be doubted - whether notice of appeal should be struck out

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - OTHER MATTERS - where application made to strike out notice of appeal - where application not served on appellants - where no claim for relief made in appeal - whether court should strike out notice of appeal on own motion

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - TRANSFERS AND CONSOLIDATIONS - where applications made for transfer of appeal proceedings to another jurisdiction - where notice of appeal struck out - whether any utility in transferring proceedings - whether applications for transfer should be dismissed

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS - where appellants alleged bias because appeal judge had previously participated in decision averse to appellants' interests - whether any basis for reasonable apprehension of bias established

Land Title Act 1994 (Qld), s 127

Uniform Civil Procedure Rules 1999 (Qld), r 16, r 31, r 371

Second appellant/second applicant appeared on her own behalf and on behalf of the first and third appellants/first and third applicants in Appeal No 7913 of 2004

B J Clarke for the respondent in Appeal No 7913 of 2004

Second appellant/second respondent appeared on her own behalf and on behalf of the first and third appellants/first and third respondents in Appeal No 2776 of 2005

B J Clarke for the respondent/applicant in Appeal No 2776 of 2005

Second appellant/second applicant appeared on her own behalf and on behalf of the first and third appellants/first and third applicants in Appeal No 7913 of 2004

C W Lohe, Crown Solicitor for the respondent in Appeal No 7913 of 2004

Second appellant/second respondent appeared on her own behalf and on behalf of the first and third appellants/first and third respondents in Appeal No 2776 of 2005

C W Lohe, Crown Solicitor for the respondent/applicant in Appeal No 2776 of 2005

[1] THE COURT: On 11 March 2005, the learned primary judge ordered, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), that there be judgment for the State of Queensland, the sixth defendant in Action No BS 9123 of 2003 commenced by the plaintiffs. From this judgment the plaintiffs appealed on 6 April 2005 in Appeal No 2776 of 2005. The sixth defendant has now applied, pursuant to r 16 and r 371 of the UCPR and the inherent jurisdiction of the Court, to have the notice of appeal struck out and the appeal dismissed on the grounds, inter alia, that it is vexatious and an abuse of the process of the Court. In the alternative, the sixth defendant applies for security for costs of the appeal. The plaintiffs resist the sixth defendant's application.

[2] Mrs von Risefer, on behalf of the plaintiffs, objected to the presence on the Court of Keane JA because of his participation in an earlier decision of this Court adverse to her.[1] The particular ground of objection advanced by Mrs von Risefer was that Keane JA had displayed bias against her because of his acceptance of submissions made on behalf of the parties opposed to the plaintiffs in that case. It also seemed that Mrs von Risefer was of the view that, either the decision of the Court of Appeal in that case, or the decision from which the appeal was brought, had been made or has been regarded by the Court of Appeal as a consent order, so that she had been denied a fair hearing. It is quite clear that neither the parties in either of those earlier decisions, nor the Court, could have been of the view that the plaintiffs were consenting to the orders which were made against them. The proceedings were hotly contested. The plaintiffs showed no basis for a reasonable apprehension of bias on the part of Keane JA, much less a basis for a conclusion that Keane JA might actually be biased against them.[2]

[3] Before dealing with the substance of the sixth defendant's application, it is necessary to mention some other applications. First, there is an application by the plaintiffs filed on 31 March 2005, whereby the plaintiffs sought the transfer of Appeal No 7913 of 2004 to the "State of Victoria". That appeal was against a judgment given on 16 August 2004 in favour of the first to fifth defendants in Action No BS 9123 of 2003. On 4 April 2005, the Court of Appeal struck out the plaintiffs' notice of appeal against the judgment given in their favour. The sixth defendant was a party to Appeal No 7913 of 2004 although no relief was sought against the sixth defendant in that appeal and the sixth defendant had not been a party to the application for judgment made by the first to the fifth defendants in the action.

[4] The sixth defendant also sought to apply for the dismissal against it of Appeal No 7913 of 2004. The plaintiffs opposed the hearing of this application on the basis that they had not been served. That was so, but, having regard to the absence of any claim for relief against the sixth defendant, we consider that this Court should, of its own motion, strike out Appeal No 7913 of 2004 as against the sixth defendant. This is because, in our view, to persist with that appeal against the sixth defendant, when the appeal has already been struck out as against the other defendants, and when no relief was ever actually claimed by the plaintiffs against the sixth defendant, would be an abuse of process. Mrs von Risefer could not point to any prejudice that the plaintiffs might suffer by reason of the dismissal of the plaintiffs' appeal in Appeal No 7913 of 2004 against the sixth defendant.

[5] Having regard to the orders made in Appeal No 7913 of 2004, and the order referred to in the preceding paragraph, the appropriate course is for this Court to dismiss the plaintiffs' application filed on 31 March 2005 in Appeal No 7913 of 2004 seeking to transfer those proceedings to the "State of Victoria".

[6] It should be noted, as well, that in the notice of appeal in Appeal No 2776 of 2005, the plaintiffs again seek the transfer of Action No BS 9123 of 2003 to the "State of Victoria". This is a matter to which we shall return.

[7] Before we turn to deal with the sixth defendant's application to strike out the appeal in Appeal No 2776 of 2005, we should also note that the plaintiffs sought an adjournment of the hearing of the sixth defendant's application. That application was served so as to afford the plaintiffs the time prescribed by the UCPR before the hearing date. The application was heard on Tuesday, 26 April 2005. The affidavit of service filed by the sixth defendant states that the application was served on the plaintiffs at their proper address for service on Wednesday, 20 April 2005. The application was therefore served at least two business days before it was to be heard, as required by the UCPR.[3]

[8] Any adjournment would be allowed only as an indulgence to the plaintiffs. No good reason is shown for allowing the plaintiffs the indulgence of an adjournment to enable them further to prepare their response. Mrs von Risefer made written submissions and addressed the Court orally for just under one hour. Nothing she said was apt to suggest that any purpose would be served by adjourning the application to allow her to prepare further submissions.

[9] The plaintiffs are quite evidently determined to persist in hopeless attempts to reopen issues resolved against them in previous litigation by repeating arguments which have been decisively rejected.[4] Mrs von Risefer's insistence that the Court is obliged to hear whatever argument she wishes to advance, however baseless it may be, is misconceived. The Court is not obliged to indulge disappointed litigants who refuse to accept the Court's decisions or to permit the Court's resources to be prevented from dealing with serious disputes. This is especially the case where to indulge a disappointed litigant is to allow successful litigants to continue to be vexed by a party which persists in seeking to reargue issues which have been resolved against it.[5]

[10] The plaintiffs' claim against the sixth defendant arose from the actions of the Registrar of Titles in removing caveats lodged by the plaintiffs, and companies apparently associated with them, which prevented the registration of a transfer of land of which the plaintiffs were registered owners of an estate in fee simple as joint tenants to transferees. The transfer was made pursuant to the exercise of a power of sale by the mortgagee of the land. It was alleged by the plaintiffs that the Registrar acted in breach of a duty of care owed to the plaintiffs.

[11] The learned primary judge found that the caveats were removed pursuant to orders of the Supreme Court. The plaintiffs in their statement of claim had asserted that this was not so. They pleaded that the orders pursuant to which the caveats were removed were the product of forgery, apparently as best one can glean from the pleading, by an unnamed officer or officers in the Registry of the Supreme Court.

[12] The learned primary judge concluded that the plaintiffs' allegations had no basis in fact. The requests to remove the caveats on which the Registrar of Titles acted were each accompanied by duplicate sealed orders of the Court. There is no basis to doubt that the orders had in fact been made on the dates which they bear.

[13] The learned primary judge also considered the plaintiff's "elaborate argument concerning the transfer", which was based on an assertion that those who signed the instrument of transfer on behalf of the mortgagee of the land did not have authority to do so, and concluded that this argument was groundless.

[14] The learned primary judge also dealt with the other arguments advanced by the plaintiffs, all of which his Honour found to be baseless. These included:

(a) the contention that the power of attorney pursuant to which the instrument of transfer was signed on behalf of the mortgagee ceased to be effective because those individuals who had affected its sealing had retired at the time the instrument of transfer was signed. This contention is plainly wrong as a matter of law;

(b) the contention that there was some deficiency in the payment of stamp duty on the transfer. This contention was rejected on the basis that the instrument of transfer bears a stamp showing that Queensland stamp duty has been paid;

(c) the contention that a declaration, signed by the lending manager of the company which was the mortgage manager of the mortgagee of the land, had not been properly authorised by the mortgagee. This contention was rejected on the basis that the declaration was lodged with the transfer executed by the mortgagee.

[15] The learned primary judge held that in removing the caveats, and so permitting the transfer to be lodged, the Registrar of Titles "did no more than give effect to orders of the Court made under s 127 of the [Land Title Act 1994 (Qld)]". In this, his Honour was clearly correct.

[16] Accordingly, the learned primary judge concluded that the plaintiffs had no prospect of succeeding on any part of their claim against the sixth defendant, that there was no need for a trial of their claim and that summary judgment should be given.

[17] The notice of appeal filed by the plaintiffs is a very lengthy document. In large part it is unintelligible.[6] As far as any content can be discerned, it seems to seek to reargue matters resolved against the plaintiffs in previous proceedings that did not involve the sixth defendant as a party and which were resolved adversely to the plaintiffs at trial and on appeal.

[18] More importantly for present purposes, insofar as the notice of appeal is intelligible, it identifies no arguable basis on which the decision of the learned primary judge might successfully be challenged on appeal. In particular in this regard:

(a) It articulates no argument which might lead this Court to take a different view of the facts found by his Honour; and

(b) It articulates no argument to throw doubt on the conclusion that the Registrar of Titles did not breach any duty to the plaintiffs in removing the caveats pursuant to orders of the Court in accordance with s 127 of the Land Title Act 1994 (Qld).

(c) It does not identify any basis on which the caveats could have even arguably been sustained save by the attempt to reargue issues decided against the plaintiffs by Byrne J and the Court of Appeal in litigation which has been concluded.[7]

[19] Mrs von Risefer argued that neither r 16 nor r 371 of the UCPR supported the sixth defendant's application. It is unnecessary to resolve this argument. The sixth defendant also invoked the inherent jurisdiction of the Court to support its application. The jurisdiction of the Court to prevent abuse of the Courts' processes by bringing a vexatious appeal to a summary end is not in doubt.[8]

[20] This jurisdiction must be exercised with great caution;[9] but this is a clear case for its exercise. In this regard:

(a) It is clear and obvious that the appeal must fail. The notice of appeal fails to articulate an arguable basis on which the Court of Appeal might differ from the conclusions of the learned primary judge;

(b) Further, to require the applicant to respond to the contentions adumbrated in the notice of appeal would, in itself be oppressive; and

(c) Finally, much of the notice of appeal is given over to making scandalous assertions of criminal misbehaviour which are irrelevant to the issues between the parties; the Courts' processes should not be permitted to be used as a vehicle for the pointless repetition of evidently baseless allegations of fraud.[10]

[21] The notice of appeal should, in our view, be struck out and the appeal dismissed. This makes it unnecessary to deal with the sixth defendant's alternative application for security for costs of the appeal.

The plaintiffs' application for transfer of Action BS No 9123 of 2003

[22] So far as the first to fifth defendants are concerned, this action has been decided in their favour; and the appeal against that decision has been struck out as against them. So far as the sixth defendant is concerned, the effect of the order which we would make means that the judgment of 11 March 2005 dismissing the plaintiffs' claim is upheld. Accordingly, there would be no utility in granting the plaintiffs' applications to transfer the action or the appeal. Both of these applications should be dismissed.

(a) The plaintiffs' notice of appeal in Appeal No 2776 of 2005 is struck out and the appeal is dismissed.

(b) The plaintiffs must pay the sixth defendant's costs of the sixth defendant's application to be assessed on the standard basis.

(c) The plaintiffs' application dated 31 March 2005 filed in Appeal No 7913 of 2004 is dismissed.

(d) The plaintiffs' application for transfer of Action No BS 9213 of 2003 contained in the notice of appeal in Appeal No 2776 of 2005 is dismissed.

(e) The plaintiffs' appeal against the sixth defendant in Appeal No 7913 of 2004 is struck out.

[1] von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109; Appeal No 7913 of 2004, 15 April 2005.

[2] See Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293 - 294; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 - 345; Trustees of the Christian Brothers v Cardone [1995] FCA 1309; (1995) 57 FCR 327 at 333 - 334; Maurkov v University of Tasmania (2004) FCAFC 159; T1 of 2003, 17 June 2004 at [16] - [18]; Dudzinski v Centrelink (2003) FCA 308; Q15 of 2003, 4 April 2003 at [4] - [5].

[3] Uniform Civil Procedure Rules 1999 (Qld) r 31(5).

[4] See von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109; Appeal No 7913 of 2004, 15 April 2005.

[5] Cocker v Tempest [1841] EngR 242; (1841) 7 M & W 502 at 503 - 504[1841] EngR 242; , 151 ER 864 at 865; Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 66 SR (NSW) 335 at 344; Bhamjee v Forsdick (Practice Note) [2003] EWCA Civ 1113; (2004) 1 WLR 88 at 93.

[6] Cf Gamester Pty Ltd v Lockhart [1993] HCA 79; (1993) 67 ALJR 547 at 549.

[7] See Permanent Trustee Co P/L v von Risefer & Anor [2000] QSC 164; SC No 4257 of 1998, 9 June 2000 and von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109; Appeal No 7913 of 2004, 15 April 2005.

[8] Madden v Kirkegard Ellewood and Partners [1983] 1 Qd R 649; Burgess v Stafford Hotel Ltd (1990) 3 All ER 222; Re Cameron [1996] QCA 37, (1996) 2 Qd R 218; Gibbs v Triscott [2000] QCA 332; Appeal No 4810 of 2000, 15 August 2000; von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109; Appeal No 7913 of 2004, 15 April 2005.

[9] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 - 130.

[10] Cashin v Cradock [1876] 3 Ch D 376; Butler v Crowley & Greenhalgh Solicitors [1999] QSC 339; SC No 6521 of 1996, 11 November 1999.