Jorgensen v Jorgensen[2017] QCA 110

SOFRONOFF P

GOTTERSON JA

NORTH J

Appeal No 11195 of 2016

SC No 342 of 2016

TRUDY JORGENSEN First Appellant

TEKSID PTY LTD Second Appellant

ACN 004 359 979

v

BRIAN JORGENSEN Respondent

CAIRNS

TUESDAY, 30 MAY 2017

JUDGMENT

SOFRONOFF P:  This is an appeal against an order made by Justice Henry transferring this proceeding from the District Court in Townsville to the Supreme Court in Cairns, permanently staying the proceeding, and also restraining the appellant from instituting any proceedings with respect to or connected with or arising out of the Rainbow Motor Inn Unit Trust without the Court’s leave.

Section 25 of the Civil Proceedings Act 2011 confers discretion to transfer matters from the District Court to the Supreme Court.  Pursuant to its inherent power to control its own processes, the Court has a discretion to stay permanently any proceedings and to restrain the institution of proceedings of the same or a similar kind.  All of these powers being discretionary powers, any appeal from an order made in the exercise of them is an appeal from a discretionary order, and, consequently, an appellant must show that the decision is affected by an error of law or an error or fact, or that for some other reason the exercise of the discretion can be seen to have miscarried.

This proceeding arises out of a dispute between two brothers, Alan and Brian Jorgensen.  In summary, in the early 1990s, they were, by means of a corporate and trust structure, the controllers of certain real estate.  In 1992, in circumstances that are now said to be controversial, Alan’s units in the trust, the Rainbow Motor Inn Unit Trust, were transferred to his brother.

On 13 March 2015, Mantonella Proprietary Limited, a company controlled by Alan Jorgensen and which was the trustee of the Jorgensen Family Trust, commenced proceedings in the Cairns Registry of the Court seeking relief against the trustee of the Rainbow Trust, Grancroft Proprietary Limited, against Mainrace Proprietary Limited and against Alan’s brother Brian Jorgensen.  The plaintiff in that proceeding alleged that the units in the Rainbow Trust that had formerly been held by the trustee of the Jorgensen Family Trust had been wrongfully transferred to Mainrace, and relevantly sought a declaration that Mantonella, the current trustee of the Jorgensen Family Trust, was the constructive trustee of those units.  Relief was also sought to reinstate Patricia Jorgensen, Alan Jorgensen’s mother, as a director and shareholder of Grancroft Proprietary Limited, and for a payment of a share of profits of the trust for the 1991 to 1992 year.

On 1 April 2015, the defendants in that proceeding applied for an order that the plaintiff give security for costs and that, pending the giving of security, the action be stayed.

On 26 May 2015, before judgment had been given on that application, a company called Mijac Proprietary Limited, said to be a co-trustee of the Jorgensen Family Trust which has been appointed on 25 April 2015, commenced proceedings in the New South Wales Supreme Court against Grancroft and Brian.  Those proceedings were, of course, irregular for their failure to join Mijac’s co-trustee, Mantonella.  But, in any event, in those proceedings, Mijac sought relief arising out of the same transactions that Mantonella had sought to impugn in the Cairns proceedings.  That relief included an order to reinstate Patricia Jorgensen as a shareholder of Grancroft, an order for a report, which was asked for in a form that equates with an application for an account of trust, and an order restraining Brian from dealing with any assets of what was described as the Brian Jorgensen Group, which I take to mean Brian and companies controlled by him.

On 30th June 2015 Justice Henry ordered Mantonella to give security for the defendant’s costs in the Cairns proceeding and stayed the action until security was provided.

On 28 July 2015, Alan, suing as trustee of the Jorgensen Family Trust, commenced new proceedings in the Supreme Court of New South Wales against Grancroft and Brian Jorgensen.  That proceeding also arose out of the same events as the earlier two actions.  Relief was sought, among other things, for the provision of a report about the financial affairs of the trust, amounting to an account, a form of relief about Patricia Jorgensen’s shares, a restraint to prevent Brian from dealing with assets of what was again referred to as the Brian Jorgensen Group and for certain other relief.

On 17 December 2015, Alan’s daughters Trudy Jorgensen and Jimeale Jorgensen commenced proceedings in the Brisbane Registry of the Court seeking relief against the trustee of the Rainbow Trust, which was then said to be a company called Potinak, and also against Mainrace.  The relief sought included an order in respect of the units that had been transferred and, again, the provision of an accounting report.

On 23 March 2016, Ms Trudy Jorgensen commenced the latest proceedings, this time in the District Court in Townsville. She sought orders against Potinak, Brian, Mainrace, Grancroft and Patricia Jorgensen.  The relief sought arose out of the same matters as that which was at the centre of each of the earlier proceedings and claimed some similar forms of relief, including restoration of the disputed units and a restraint upon Brian’s dealing with his assets.

It was this proceeding which Justice Henry ordered be permanently stayed after it had been transferred from the Townsville District Court to the Supreme Court Registry at Cairns.  His Honour made the orders because he found that the appellants had abused the process of the Court by instituting these fresh proceedings.  The history of proceedings which I have described establishes the correctness of that conclusion beyond any argument.

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.

The appellant raises a number of grounds of appeal, none of which are capable of establishing an error in the exercise of discretion.  First, they contend that they had discontinued the Cairns proceeding before his Honour had made any of his orders; if that was so, then of course there would be no utility in this appeal and the appeal ought to be dismissed for that reason.  However, the proceeding was not discontinued.  For the reasons explained by Justice Henry, the appellants could not discontinue the proceedings under UCPR 304 without the defendants’ consent or without the leave of the court. The respondents had filed an affidavit in reply before the notice of discontinuance had been filed.  The affidavit was that of T.G. McGrath which was filed on the 29th of September 2016.  The appellants, therefore, required the consent of the defendants or the leave of the Court before they could discontinue the proceedings, and they had neither.

Second, the appellants complained that they were denied natural justice.  This denial is said to be constituted by the making of the order itself which, the appellants say, denies them a right all other citizens possess to bring their dispute before the Supreme Court.  This complaint misunderstands the difference between the appellants and all other citizens: other citizens do not seek to initiate multiple causes of action arising out of the same facts thereby abusing the process of the Court.

Third, they argue that the orders would prevent a meritorious claim about a trustee’s misfeasance from proceeding.  However, that is not correct; the original proceeding remains on foot, and the plaintiff in that proceeding is at liberty to proceed with it.  The first step that must be taken in that proceeding, before any other step can be taken, however, is the provision of security for costs.

The Court was informed, during oral argument, that the plaintiff in that case, Mantonella Proprietary Limited, has been deregistered.  It was the trustee of the Jorgensen Family Trust.  It appears, however, that, since then, Mijac or Teksid or both have become trustees of that trust.  In any event, a presently existing trustee or one newly appointed is capable of being substituted as a plaintiff in that proceeding, and so the proceeding that was the subject of the security for costs order is not defunct.

There being no grounds shown that would vitiate the exercise of discretion, I would dismiss the appeal.

GOTTERSON JA:  I agree.

NORTH J:  I agree.

...

SOFRONOFF P:  The order of the Court will be that the appeal is dismissed, and the appellant is to pay the respondent’s costs, to be taxed on a standard basis.  Adjourn the Court.

MR JORGENSEN:  Your Honour, one last – can I ask – it’s a – I don’t know where else we can – I can ask.  If you’re saying that the Mantonella case is already afoot, and therefore it is a – it can be prosecuted, then the subsequent vexatious litigant status that I now enjoy, as of September last year – my question is, because that – or any other case –

GOTTERSON JA:  Well, Mr Jorgensen, it is inappropriate to ask the Court questions.  Desist.

SOFRONOFF P:  You cannot ask us for advice, Mr Jorgensen.

MR JORGENSEN:  Other than, you invited us to continue with that case.

SOFRONOFF P:  No, I didn’t invite you.  I have given reasons for judgment, and I have pointed out to you some matters in the course of argument, but I have not given you any advice, and I have given you no invitation.

Adjourn the Court.