Solicitors:
Plaintiff: Self-represented
First & Second Defendants: Turks Legal
Third & Fourth Defendants: Cowell Clark
File Number(s): 2018/00379388
[2]
INTRODUCTION
Before the Court for determination are three notices of motion which call for consideration whether the principal proceedings should be determined summarily and, if not, the terms upon which they might be permitted to continue.
[3]
THE DEFENDANTS' MOTIONS
Two of the three notices of motion were filed on 20 March 2019 by parties which, for convenience, are characterised as defendants. Each motion seeks an order (pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 NSW) for the summary dismissal of the principal proceedings or, alternatively, an order (pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005) for the plaintiff's statement of claim to be struck out.
One of those notices of motion has been filed by Rural Bank Ltd and Bendigo & Adelaide Bank Ltd, together described as "the Banks". The other notice of motion was filed by Elders Rural Services Australia Ltd and Elders Ltd, together described as "the Elders Parties".
It is convenient to describe the defendants as "the Banks" and "the Elders Parties" because the designations they have been given by the plaintiff in various documents lack consistency.
Subject to one qualification, the form of statement of claim sought to be propounded by the plaintiff (a former solicitor) on the hearing of the motions before the Court (and sought by the Banks and the Elders Parties to be struck out) is a document marked for identification as MFI P2. The qualification is that, as formally noted during the hearing of the motions, the plaintiff has expressly abandoned any claim for relief in the principal proceedings against the solicitors respectively known as "Turks Legal" and "Cowell Clarke" (respectively, the solicitors for the Banks and the Elders Parties) or Mr DAC Robertson, counsel for the Elders Parties: Transcript pages 26-28.
Although MFI P2 names the Elders Parties as defendants, no order has ever been made for the joinder of those parties in the proceedings. On the hearing of the motions it was agreed between the parties that (without prejudice to any entitlement the Elder Parties might have to submit that leave should not be granted for their joinder in the proceedings) the motions should be heard and determined upon an assumption that, contrary to the fact, an order has been made for the joinder of the Elders Parties.
[4]
THE PLAINTIFF'S MOTION
The third of the three notices of motion before the Court for determination is a notice of motion filed by the plaintiff on 4 July 2019, in which "the orders sought" are expressed in the following terms:
"(1) Pursuant to the Limitation Act 1969 and s52 of that Act the limitation period fixed by this Act for the cause of action has commenced to run, and the plaintiff was under a disability from 1 November 2010 until 30 June 2018 ('the period of disability') so that issue estoppel does not apply to any action taken during the period of disability.
(2) The evidence given in 2015/226349 be the evidence in these proceedings save that the parties can supplement evidence where they choose."
[5]
THE PLAINTIFF SEEKS TO RE-LITIGATE A LOST CAUSE
The reference here to the proceedings numbered 2015/226349 exposes the gravamen of the defendants' complaint that the current proceedings are an abuse of process because they are an endeavour by the plaintiff to re-litigate a cause he has already lost.
In the proceedings numbered 2015/226349 the plaintiff sued Elders Rural Services Australia Ltd, alleging a fraudulent representation by an employee of that corporation (in connection with the plaintiff's purchase in July 2007 of a property known as "Reevesdale" located in Bungonia, NSW) said to have caused him loss and damage calling for an award of damages in excess of $5 million.
The proceedings numbered 2015/226349 were dismissed by Justice Johnson in the Common Law Division of the Court, after a hearing on the merits, for reasons published on 19 December 2018 as Williamson v Elders Rural Services Australia Ltd (No. 2) [2018] NSWSC 1986.
The case the plaintiff seeks to make in the current proceedings, against the Banks and the Elders Parties, is substantially the same as that advanced by him in the proceedings determined against him by Johnson J. That much he expressly concedes. He wants to re-run the whole case: Transcript page 42. He goes so far as to concede that, but for his claim to have been a person under a disability throughout the proceedings culminating in the judgment of Johnson J, the present proceedings would be liable to be dismissed on an application of principles governing estoppel or an abuse of process: Transcript pages 45-47 and 62.
In broad terms, the Elders Parties were the selling agents on the sale of "Reevesdale" to the plaintiff and the Banks were the vendor's mortgagees, paid out on completion of the sale. The plaintiff contends that the Elders Parties, by an employee, tricked him into a purchase of the property at (he says) an undervalue (by concealing from him the fact that mining activities on a neighbouring property had received government approval) and that, as recipients of proceeds of sale used to discharge the vendor's mortgage or through a shareholding in the Elders Parties, the Banks are liable to make restitution to him.
Even if (contrary to Johnson J's judgment) the Elders Parties were privy to a fraud, the plaintiff advances no plausible case for relief against the Banks, against whom the plaintiff discontinued claims for relief in the proceedings that culminated in Johnson J's judgment. There is no suggestion that the Banks were privy to any form of fraud, unless a shareholding in the Elders Parties was of itself (which it could not be) sufficient to attract a liability for fraud alleged against the Elders Parties.
The plaintiff has not appealed from the judgment of Johnson J or (so far as I am aware) made an application for his Honour's judgment to be set aside for any form of irregularity.
At the hearing of the motions the subject of this judgment, the defendants contended that the existence of Johnson J's judgment is an impediment to the continuation of the current proceedings. I agree. Two particular reasons spring to mind. First, as the Supreme Court is a superior court its judgments and orders must be presumed to be valid unless and until set aside: Cameron v Cole (1944) 68 CLR 51. Secondly, the principles governing the finality of judgments (including res judicata, issue estoppel, Anshun estoppel and Reichel v Magrath abuse of process) all trend towards preventing a party from re-litigating a lost cause.
The plaintiff seeks to escape the strictures of Johnson J's judgment by a contention that, unbeknown to himself or anybody else involved in the proceedings, at the time of the proceedings which culminated in the judgment of Johnson J he was suffering from a brain abscess which impaired his judgement to such an extent that, in retrospect, he believes that he was a person "under a disability" sufficient: (a) to render the proceedings before Johnson J a nullity; and (b) by operation of section 52 of the Limitation Act 1969 NSW, to suspend the running against him of any limitation period fixed by that Act.
Even if the plaintiff were able to establish (as he alleges) that, throughout the proceedings culminating in Johnson J's judgment he was indeed a person "under a disability", that fact would not render his Honour's judgment a nullity. A failure to comply with UCPR rule 7.14 (which mandates that a person under legal incapacity "may not commence or carry on proceedings except by his or her tutor") is, by virtue of section 63 of the Civil Procedure Act, to be treated as an irregularity which does not invalidate proceedings or any judgment or order in proceedings, but which empowers the Court to make remedial orders including, as may be appropriate, an order for proceedings or a judgment or order to be set aside: Murphy v Boman (2003) 58 NSWLR 51.
CPA section 63(4) provides, however, that the Court cannot make remedial orders, on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes a fresh step in proceedings after becoming aware of the failure. That limitation on the Court's power presents a very real impediment to any application made by the plaintiff to set aside Johnson J's judgment. On any such application, he could reasonably be expected to be confronted with the lapse of time since the judgment was entered and forensic decisions taken by him against a challenge to the judgment at a time when, he insists, he is perfectly able to manage his own affairs.
His invocation of section 52 of the Limitation Act 1969 goes nowhere. As it happens, if he was a person under a disability so as to suspend the running of a limitation period between the time a cause of action arose in 2007 and the time, in 2015, when he commenced the proceedings which culminated in Johnson J's judgment, the fact remains that he did commence proceedings and they were the subject of a final determination, albeit one which (he contends) he might be entitled to have set aside. If he is bound by that judgment, he gains nothing by a contention that he remained a person under a disability throughout the pendency of the proceedings culminating in the judgment.
Judgment on the motions having been reserved, on 10 September 2019 the plaintiff filed a notice of motion in which he sought an order which, at its highest, contended that an order should be made in the current proceedings for Johnson J's judgment to be set aside.
On 12 September 2019 I dismissed that notice of motion with ex tempore reasons for judgment which included the following observations:
"[5] The plaintiff's motion does not quite rise as high as he contends. On a closer reading the motion seeks to obtain some priority for a motion that the judgment of Johnson J be set aside.
[6] The current proceedings are not appropriate for any application that is made by the plaintiff for the judgment of Johnson J to be set aside.
[7] It is not a matter for me to advise the plaintiff about what course he should take. I have nevertheless suggested to him that if an application were to be made to have the Johnson J judgment set aside: it might be made in the proceedings in which Johnson J delivered judgment; it might be made in fresh proceedings depending upon the grounds upon which an application to have the judgment set aside is made; or it might have to be made by way of an appeal (out of time, it should be said) from Johnson J's judgment. These alternatives do not include an application made in these current proceedings.
[8] The plaintiff's desire to have Johnson J's judgment set aside is based, it seems, upon his perception that, as his opponents contend, the existence of the judgment is an impediment to the continuation of the current proceedings.
[9] Upon an assumption that, procedurally, the plaintiff makes a correct form of application to set aside Johnson J's judgment, a number of impediments might well stand in his way in getting the judgment set aside. I mention only one of them.
[10] In reasons for judgment published by the Court of Appeal on 13 June 2019 as Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137 at paragraph 22, the Court of Appeal (constituted by Leeming and White JJA) recorded that, in oral submissions before the Court of Appeal, the plaintiff "confirmed that he had chosen not to challenge any aspect of Johnson J's decision."
[11] In all of the circumstances, it seems to me that the proper course is for me to dismiss the plaintiff's notice of motion filed 10 September 2019, and to resume consideration of the judgment reserved on 22 August 2019. That I propose to do."
Some of the eccentricities of the plaintiff's approach to litigation are apparent in the Court of Appeal's judgment of 13 June 2019.
In the proceedings before the Court of Appeal the plaintiff sought, not to challenge the judgment of Johnson J, but to challenge an earlier interlocutory refusal by another judge, in the same proceedings, to file an amended statement of claim. The plaintiff "deliberately and explicitly" informed the Court of Appeal, orally and in writing, that he did not seek to challenge Johnson J's judgment. The Court of Appeal held, inter alia, that, as between himself and Elders Rural Services Australia Ltd, the plaintiff is bound by an issue estoppel arising from the judgment of Johnson J: [2019] NSWCA 137 at [18]-[19], [28] and [33].
The plaintiff disclaims any suggestion that he was a person under a disability, or in any way incapacitated, at the time of the hearing before the Court of Appeal (on 5 June 2019) or at the time of the hearing of the notices of motion presently before the Court (22 August 2019). He claims that his disability "came to an end, arguably, in June 18 and most definitely by the end of 2018" (Transcript page 26), at about the time of publication of Johnson J's judgment. At the time of the hearing before the Court of Appeal, according to the Court of Appeal, he "deliberately and explicitly" declined to challenge Johnson J's judgment. At the time of the hearing of the current motions, that judgment remained unchallenged. So far as I am aware, no properly constituted application has been since made to set it aside.
The plaintiff accepts that there was no medical evidence of incapacity before Johnson J: Transcript page 47. As his Honour expressly noted at paragraph [139] of his reasons for judgment, the plaintiff did not seek to meet a limitation defence advanced against him in the proceedings before his Honour by alleging that he was a person under a disability or by adducing medical evidence that might otherwise raise an issue of incapacity.
On the evidence before the Court, I am not satisfied that the plaintiff has established that, throughout the proceedings that culminated in Johnson J's judgment, he was a person incapable of managing his affairs or otherwise materially disabled; but it is not necessary for me to form a concluded view about that.
On his own case the plaintiff has recovered from any disability from which he suffered. As a person presumed to be a person capable of managing his affairs (Murphy v Doman (2003) 58 NSWLR 51 at [36]), he elected, for forensic reasons of his own, not to challenge Johnson J's judgment. Even now, he expressly concedes that Johnson J "probably got it right on the facts as they were laid before him": Transcript pages 41-42.
I am satisfied that these proceedings are an abuse of the process of the Court. The principles governing the finality of judgments, in one form or another, preclude the plaintiff from re-litigating against any of the defendants the cause he lost in the proceedings that culminated in the judgment of Johnson J, by which he remains bound. He has demonstrated in these proceedings no reasonable cause of action against any defendant, but a determination to pursue against them proceedings which are both frivolous and vexatious.
[6]
ORDERS
Accordingly, I make the following orders:
1. ORDER that these proceedings be dismissed.
2. ORDER that the plaintiff pay the costs of Rural Bank Ltd and Bendigo and Adelaide Bank Ltd on the indemnity basis.
3. ORDER that the plaintiff pay the costs of Elders Rural Services Australia Ltd and Elders Ltd on the indemnity basis.
Dismissal of the proceedings carries with it, incidentally, dismissal of the plaintiff's notice of motion filed 4 July 2019 and his notice of motion for discovery (filed on 17 June 2019) listed before me for directions. The proceedings are at an end.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 December 2019