DISTRICT COURT OF QUEENSLAND

1. [1]
   In this action the plaintiff seeks, by a claim and statement of claim, to set aside a judgment awarded to the defendants after the trial of the plaintiff’s claim for damages for personal injuries in the Magistrates Court at Southport. The claim invokes this court’s jurisdiction in equity to impeach an earlier judgment on the ground of fraud^[1].  Although the plaintiff’s pleading does not allege facts or matters showing that equitable damages if awarded would be below this court’s monetary jurisdictional limit, the point was not taken by the defendant and I am satisfied damages (which, if awarded, would flow from the Magistrates Court proceedings for damages for personal injuries and costs) would be well within that limit.  The other relief sought is the setting aside of the judgment below, a power this court appears to have^[2].

2. [2]
   The following matters are admitted on the pleadings:

1. (a)
   the plaintiff brought an action no. 3236/97 in Southport Magistrates Court on 9 May 1997 in which he claimed damages for personal injury and consequential loss arising out of a motor vehicle collision on 16 April 1996;

2. (b)
   he alleged in that action that the first defendant was the driver of a Datsun motor vehicle which collided with the rear of his on the Broadbeach Nerang Road; and, that

3. (c)
   the second defendant was the insurer of the Datsun under the Motor Accident Insurance Act 1994;

4. (d)
   in a defence filed in the Magistrates Court on 2 July 1997 the first defendant denied the collision occurred at all or, of course, that she was negligent;

5. (e)
   on 10 September 1997 the plaintiff filed a Notice to Admit Facts in which he sought an admission that at the time of the collision the first defendant was the driver of the Datsun;

6. (f)
    on 29 April 1998 he delivered interrogatories in which the first defendant was asked if she was the driver of that vehicle;

7. (g)
   in her Answers sworn 26 May 1998 she denied she was;

8. (h)
   at the trial of the action in Southport Magistrates Court on 28 November 2000 and 31 January 2001 the first defendant gave evidence on oath that the collision did not occur, that she was not involved in it, that she was not at the scene, that she did not ring her husband and ask him to come to the scene, and he did not do so; and,

1. (i)
   the first defendant’s husband gave evidence that he had never met the plaintiff, had no knowledge of an accident between a vehicle driven by his wife and one driven by the plaintiff, and had never been to the scene of such an accident.

3. [3]
   The Magistrate accepted the evidence of the first defendant and her husband. Relevantly, too, she made a number of significant findings of credit against the plaintiff, which may also be summarised:

1. (a)
   that when the plaintiff reported the accident to a police officer, Constable Farr, he told the officer that he had been struck by a red vehicle (the Magistrate was satisfied the first defendant’s own vehicle was white), but it had left the scene of the accident and was otherwise unidentified;

2. (b)
   that telephone calls allegedly made by the first defendant to her husband at the scene of the accident from the plaintiff’s mobile phone (and the making of the calls was confirmed by telephone records) did not relate to an accident between their vehicles but, rather, were explained by the presence of the first defendant’s vehicle near the scene of the alleged accident, standing by the side of the road and advertised as being for sale; and,

3. (c)
   the plaintiff’s evidence on his damages was highly unsatisfactory and in a number of respects he could not be believed.

4. [4]
   Ultimately the learned Magistrate, Ms Batts, determined the plaintiff had failed to satisfy her on the balance of probabilities that the accident occurred or that the first defendant’s vehicle was involved in it, and dismissed his claim^[3].

5. [5]
   In the plaintiff’s statement of claim in the present action it was alleged that after judgment, and in fact on 17 May 2002^[4] the plaintiff had a conversation with a Mr Alex Penklis in which he discovered the following facts:

1. (a)
   that at the time of the accident the first defendant’s husband was employed by Mr Penklis;

2. (b)
   at about 5.50 pm on the day of the accident the first defendant and her husband were at a social gathering with Penklis;

3. (c)
   after a verbal disagreement between the first defendant and her husband she left the gathering driving a Datsun motor vehicle;

4. (d)
   shortly after her departure her husband received a telephone call and Penklis heard him say words to the effect: “She’s had an accident”, and he then left the social gathering; and,

5. (e)
   at a later date the first defendant’s husband brought the Datsun to Penklis’ workplace (he conducts a motor vehicle transmission repair business) and removed or repaired damaged body panels.

6. [6]
   It is alleged, in short, that these new facts show the judgment before the learned Magistrate was obtained by a fraud and her decision ought be set aside. The plaintiff, the first defendant, her husband, and Mr Penklis all gave evidence before me about these matters. The plaintiff’s evidence of his conversation with Mr Penklis largely accorded with the details set out above, which are taken from his pleading^[5].  The first defendant and her husband denied any recall of any events of that kind and persisted with their denials that she was involved in the accident, or he attended the scene, or that there were any relevant telephone calls between either of them, and the plaintiff. 

7. [7]
   Mr Penklis gave evidence of an occasion many years ago in which, at a time when the first defendant’s husband was employed by him, he and his wife were present at drinks after work; they had a disagreement; she left; a short time later her husband received a telephone call, and then said he was leaving because she had had an accident; and, that the plaintiff had visited him for the first time about 2.5 years ago and they had discussed these matters, and he told the plaintiff these things. In his oral evidence he said, it appears for the first time, that the first defendant’s husband told him the next day that his wife had collided with the rear of another vehicle.

8. [8]
   During cross-examination of Mr Penklis the defendants produced a copy of an affidavit apparently sworn by him on 17 May 2002^[6] in which he said that he recalled these incidents and that they had occurred on 16 April 1996.  He also said that the first defendant’s vehicle was a white Datsun.  During that cross-examination he said that he was, now, unsure about the date of the events he had related and thought, on reflection, that the first defendant’s vehicle might in fact be a Toyota.

9. [9]
   There is no doubt that a judgment obtained by fraud may be set aside: Cabassi v Vila (1940) 64 CLR 130 at 147.  The jurisdiction is, as was pointed out in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538, equitable in origin and nature.  The party asserting that the judgment should be set aside must show that there has been a new discovery of material evidence which, had it been available at the trial, would probably have affected the outcome.  There must be clear evidence of fraud and to succeed, the applicant must show by admissible evidence that the party who succeeded at the trial was responsible for the fraud which taints the judgment and it would be inequitable to allow that party to continue to have the benefit of it.

10. [10]
    The history of the jurisdiction and the cases which have touched it were helpfully summarised in the judgment of the Full Court of the Federal Court in Monroe Schneider Associates (Inc) v No. 1 Raberem Pty Ltd (1992) 37 FCR 234 (Spender, Gummow and Lee JJ).  The court said, at 241:

The stringent principles established by the authorities to confine the jurisdiction have been summarised by Gordon QC at 376-377^[7] as setting the following requirements:

1. (a)
   evidence newly discovered since the trial;
2. (b)
   evidence that could not have been found by the time of the trial by exercise of reasonable diligence;
3. (c)
   evidence so material that its production at the trial would probably have affected the outcome; and when the fraud charged consists of perjury, then:
4. (d)
   the evidence must be so strong that it would reasonably be expected to be decisive at a rehearing, and if unanswered must have that result.

10. [10]
    I think it is clear here (and I did not understand Mr Murray of counsel, for the plaintiff, to advance any argument to the contrary) that the fraud the plaintiff charges is one which consists of perjury on the part of the first defendant, and her husband, so it follows that the fourth principle applies here. That principle or, at least, the way it was formulated by Gordon QC have not been universally accepted: in Cabassi v Vila (supra) at 147-8 Williams J said that he had been unable to find any case in which a judgment had been set aside where the only fraud alleged was that the defendant or a witness or witnesses alone or in concert had committed perjury, and he referred to Flower v Lloyd (1879) 10 Ch 327 and Baker v Wadsworth (1898) 67 LJQB 301 as authority that, except in very exceptional cases, perjury is not a sufficient ground.

11. [11]
    As the judgment of the Federal Court notes^[8], decisions of the Supreme Court of the United States^[9] appear to accept an early statement of Sir Nathan Wright LK in Tovey v Young (1702) Pr Ch 193; 24 ER 93:

New matter may in some cases be ground for relief, but it must not be what was tried before; nor, when it consists in swearing only, will I ever grant a new trial, unless it appears by deed, or writing, or that a witness on whose testimony the verdict was given were convict of perjury, or the jury attainted…

12. [12]
    The reluctance of courts to interfere with a previous judgment when perjury is alleged was recently discussed by Jerrard JA in Cloud v State of Queensland [2002] QCA 458, at para [42]:

In Cabassi v Vila (1940) 64 CLR 130, where the High Court affirmed as part of the Common Law of Australia the principle that no civil action lies in respect of evidence, even if false and malicious, given by witnesses in the course of a judicial proceeding.  It was held this rule prevented an unsuccessful litigant bringing an action for conspiracy against witnesses whom the defeated party alleged had conspired together to give the false evidence which resulted in the case being lost by him…The rationale for the rule in Cabassi v Vila is that the proper remedy, for the party whose action is lost because of dishonestly given evidence, is to invoke the provisions of the criminal law which punished perjury, or by action for contempt of court. (my emphasis)

13. [13]
    In McDonald v McDonald(1965) 113 CLR 529 the respondent alleged he had been assaulted by the appellant. At trial the appellant called a witness, Moloney, who told of having seen a fracas between the parties, evidence which was favourable to the appellant on the issue of assault.  The appellant succeeded at first instance but on appeal the respondent was permitted to adduce evidence before the Full Court of the Supreme Court of Queensland from another witness, Platt, which was accepted as establishing Moloney may have perjured himself and the Full Court ordered a new trial.  The High Court^[10] was unanimous in reversing the Full Court’s decision. Taylor J said^[11]:

The fresh evidence was not of such a character as to justify the inference that the respondent had been guilty of fraud and a finding to that effect based upon such evidence would, in my view, be quite unreasonable… It was evidence on the fringe of the case, it was insubstantial and, even if accepted, would not preclude the conclusion that Moloney was present on the occasion in question.

Menzies J said^[12]:

…It could only be in a rare case that a judgment would be set aside because of fresh evidence relating to a collateral matter merely affecting the credibility of a witness: Braddock v Tillotson’s Newspapers Ltd (1950) 1 KB 47 at 50.

14. [14]
    In light of these decisions I think it is clear that the phrase, in the fourth principle suggested by Gordon QC “...so strong that it would reasonably be expected to be decisive at a rehearing...” has to be construed as, at least, indicating the plaintiff bears a very heavy onus in proceedings of the present kind. 

15. [15]
    While the standard of proof remains on the balance of probabilities, because the allegation is one of fraud the seriousness of it will affect the strength of the evidence required in order to discharge the onus: Briginshaw v Briginshaw (1938) 60 CLR 336^[13].

16. [16]
    I accept that the plaintiff did not discover the evidence set out in paragraph 12 of the statement of claim until a date after the learned Magistrate gave judgment and, in fact, about five months later. Mr Modric said, and I also accept, that he obtained a copy of the transcript of the proceedings before the Magistrates Court or, at least, read the transcript at the court on 31 October 2001 and discovered where the first defendant’s husband worked. (The husband, Mr Alan Swann, did give evidence about his place of employment^[14].)  Armed with this information Mr Modric went to Mr Penklis’ business and, as I also accept, had a conversation with him on the lines he related in his evidence before me. 

17. [17]
    While the evidence was in that sense fresh, it was not overwhelming in its precision. As related earlier, in his oral evidence before me Mr Penklis resiled from the certainty expressed in his affidavit (Exhibit 4) about the date of events relevant to the accident, or the type of vehicle the first defendant may have been driving. If they occurred, these events happened more than seven years ago so his uncertainty is understandable. (It is also relevant to these questions that, in the proceedings in the Magistrates Court, Mr Swann said he and the first defendant only began living together in about April 1996, and at the time she owned a Datsun vehicle which had been damaged in an earlier accident and which was repaired at Mr Penklis’ premises^[15].)

18. [18]
    It is clear from the transcript of the Magistrates Court trial that the plaintiff was well aware before it began that the first defendant denied the accident involved her, or her vehicle. In the course of the plaintiff’s case there, telephone records (mentioned earlier) were tendered showing two short calls from the plaintiff’s mobile phone to the defendant’s husband around the time the plaintiff alleges the accident occurred, and that more short calls were made the following day from the first defendant’s home to the plaintiff’s mobile phone. The fact the plaintiff had this evidence ready meant, the defendants argued, he should also have discovered Mr Penklis’ evidence before the trial and he could not satisfy the second of the tests postulated by Gordon QC: that the evidence could not have been found, with reasonable diligence.

19. [19]
    While the defendants can point to evidence from Mr Swann during his evidence about his place of work, that only came out after the plaintiff had closed his case and, otherwise, I was not referred to anything in the evidence before the learned Magistrate which could reasonably be said to have had a propensity to alert the plaintiff, or the solicitors representing him then, to the possibility that Mr Penklis might have evidence germane to the issues and which might aid the plaintiff.

20. [20]
    Some attempt was made by counsel for the defendants to suggest that the absence of any evidence from those solicitors (who do not represent the plaintiff now) constituted a defect in the plaintiff’s case on this issue and gave rise to an inference that the solicitor’s evidence would not assist him, under the principles in Jones v Dunkel (1959) 101 CLR 298, but I think both the evidence and the source of it was sufficiently surprising to warrant the conclusion that even the most diligent lawyer, or party to litigation, could not be expected to have pursued it before the trial of the plaintiff’s action in the Magistrates Court.

21. [21]
    The question whether the new evidence was so material that its production at trial would probably have affected the outcome is one which requires one court to consider the mind of another. The learned Magistrate indicated that she “preferred” the evidence of Mr and Mrs Swann where it was in conflict with that of Mr Modric, and she “accepted” it in other respects. Evidence detracting from their credit might be thought, then, to have had the potential to affect those conclusions.

22. [22]
    The learned Magistrate’s reasons^[16] make it clear, however, that the principal matter which led her to conclude that the plaintiff had simply failed to prove his case on the balance of probabilities was his own want of credit.  At p 9 she said:

There was also cross-examination of the plaintiff on his ability to identify the first defendant and Mr Swann at a directions hearing at court, but even with no reliance placed on this matter, I am unable to find myself satisfied on the balance of probabilities of the plaintiff’s claim, such as the unsatisfactory state of his evidence on a number of individual matters referred to, and to such a large number of those matters.   (My emphasis)

23. [23]
    I have already referred to the aspects of the plaintiff’s evidence which she found unsatisfactory. She did not believe the accident occurred in the way he described, or in a way which involved the first defendant. She was obviously troubled by the evidence of the police officer about the report the plaintiff made to him two weeks after the accident (when he said the vehicle which struck him was red, and that it left the scene of the accident and was otherwise unidentified). She was similarly troubled by the plaintiff’s evidence claim that he had a conversation with a person called “Zelda” who was the driver of the vehicle which he says collided with him, and remarked^[17]: “...There is no way in the world it could be confused with the first defendant’s Christian or surname”.

24. [24]
    It was the plaintiff’s evidence on quantum which, however, plainly told very heavily against him. The learned Magistrate described it as:

... so unsatisfactory in so many respects that he just cannot be believed, effecting not only the quantum of his claim if that was accepted, but his general credibility also…

Her obvious dissatisfaction with the “inconsistencies”^[18] in the plaintiff’s evidence, and the fact that it was given “only reluctantly and not very fulsomely under cross-examination”^[19] led her to make what can only be described as strong credit findings against the plaintiff.  In light of these findings it seems at least doubtful, and in truth highly improbable, Mr Penklis’ evidence would have made any difference, in the sense of affecting the outcome.

25. [25]
    Further, it is impossible to conclude Mr Penklis’ evidence was sufficiently strong that it might reasonably be expected to be decisive at a rehearing. On any view its reliability was open to attack on the ground he was first asked about the matter well over five years after the alleged accident, and the defendant’s evidence before the Magistrate contained, at least, some allegations which might have persuaded the her that his recollection, while honestly given, was simply faulty: namely, Mr Swann’s evidence that his wife’s vehicle was damaged at the time he met her, and was repaired at Mr Penklis’ business. That explanation does not, of course, easily dispose of his evidence about the phone call he said Mr Swann received around the time of the accident but the fact the Magistrate was prepared to make findings against the plaintiff in respect of the several telephone calls (which might have been thought to provide some corroboration for the plaintiff’s claims) makes it, I think, most unlikely she would have found this evidence “decisive”

26. [26]
    As the Court noted in Monroe Schneider^[20] the parameters of the jurisdiction are still the subject of debate and, because the fourth principle enunciated by Gordon QC was not central to their decision the Judges thought it inappropriate to pursue the matter further.  I was not referred to any subsequent decisions save Cloud v State of Queensland^[21] and the decision of Dodds DCJ in Benseman v Noosa Cat Australia Pty Ltd (2001) QDC 077 which, on its face, involved allegations of fraud in the form of perjury at an earlier trial in the District Court by an officer of the defendant company.  The case concerned repairs to a boat and things which, that officer said, had been done but which were later discovered to be quite untrue when parts of the boat were dismantled.  His Honour addressed the test suggested by Gordon QC in Monroe Schneider, and the first two elements of it in detail.  The third and fourth principles are not discussed at length, but it is clear that his Honour concluded the evidence of fraud was so overwhelming it would have been decisive at the rehearing.

27. [27]
    For the reasons set out above, I do not think that can be said of the evidence the plaintiff now presents here. While Mr Penklis’ evidence is certainly troubling for a later tribunal and, if accepted at face value suggests at least the possibility of fraud by perjury in another place, I am obliged to pay proper obeisance to the principles set out in the cases discussed earlier and, too, to examine that evidence in the context of a two-day trial before a Magistrate who has given clear and cogent reasons for the decision she reached; and, in particular, the circumstance that those reasons make it clear a major, if not the principal factor which led her to the conclusion that the plaintiff had simply failed to prove his case involved insurmountable doubts about his credit, and not that of the defendants.

28. [28]
    The defendants are entitled to judgment. I will hear submissions about costs.