Di Carlo v Dubois[2007] QSC 95

SUPREME COURT OF QUEENSLAND

[1] The first and second defendants apply for an order that the plaintiff’s claim and statement of claim be struck out, under Rules 171(1)(a), (c), (e) and 371(2)(a) of the Uniform Civil Procedure Rules.  Alternatively, they seek an order under Rule 371(2)(a) or (f) striking out the claim and statement of claim on the basis the fraud alleged in the statement of claim is insufficiently particularised.  The applicants seek indemnity costs.

[2] By his claim, the plaintiff seeks an order setting aside the judgment given against him on 16 July 2003.  In that original proceeding, he claimed damages in respect of injuries allegedly caused by a radiological procedure performed by the first defendant, in the practice of the second defendant, and ordered by the third defendant.  The procedure was carried out in the year 1993.

[3] Mackenzie J dismissed the plaintiff’s claim on 16 July 2003, after a trial.  The plaintiff appealed.  The Court of Appeal dismissed his appeals on 7 May 2004.  On 21 March 2005, the High Court refused the plaintiff’s application for special leave to appeal.

[4] The plaintiff’s case at the trial before Mackenzie J was that during the course of the radiological procedure, which was a CT scan, the second defendant’s employee, Mr Brown, injected the plaintiff with a “contrast medium”, contrary to the third defendant’s request, and the plaintiff immediately suffered an anaphylactic reaction.  On the other hand, relying on the oral evidence of Mr Brown, the first and second defendants advanced a case that the plaintiff suffered any reaction only after six to seven minutes following the injection (which was not administered contrary to any request from the third defendant).  Mr Brown’s oral evidence was that the adverse reaction occurred after he had taken 28 images, six to seven minutes after the injection.

[5] Under cross-examination, Mr Brown accepted that he was first asked to provide a statement seven or eight years after the events of 1993, and that when first approached, he “remembered very little about the event”.  His explanation for his subsequent, comprehensive oral evidence was that “you do remember more things as your mind is focused on a particular event”.

[6] The case of fraud set up by the instant statement of claim alleges that Mr Brown gave his first statement to the applicants’ then solicitors, Blake, Dawson and Waldron, in August 2000.  Mr Brown then said that he had no recollection of the events.  It was in March 2002 that Mr Brown provided a second statement to the applicants’ then solicitors, Flower and Hart, and in that statement referred to the onset of the reaction consistently with the oral evidence given at the trial.  Mr Brown gave that statement, it was alleged, only after Flower and Hart had made numerous requests for the plaintiff to confirm that he, the plaintiff, did not have possession of any images of the CT scan, and the plaintiff’s then solicitors provided that confirmation.  Blake, Dawson and Waldron, it is alleged, had never requested such a confirmation.

[7] The plaintiff alleges that the first defendant and/or Flower and Hart had “pressed” Mr Brown to recall the details of which he subsequently gave oral evidence, and thereby “suborned” Mr Brown, who proceeded to give false evidence intended by the applicants to induce the trial Judge’s reliance upon it.

[8] Mr Cooke QC appeared for the respondent plaintiff.  He orally submitted that the statement of claim sets out a circumstantial case of fraud, leading to Mr Brown’s committing perjury at the instance of the applicants and/or their solicitors.  Mr Cooke pointed to a matter of ordinary experience, that the recollection of witnesses generally does not improve with the passage of time.  Yet here Mr Brown progressed from an absence of relevant recollection, to recollection of precise details, and significantly, after the involvement of the new solicitors for the applicants, who called Mr Brown to give evidence before Mackenzie J at a time when they believed the CT scan images would not be produced.  The suggestion before me was that the CT scan images would refute the oral evidence given by Mr Brown.  The plaintiff has not disclosed those images, now apparently in his possession, and would seek to avoid disclosure prior to any new trial.

[9] Mr Thompson SC appeared for the applicants.  He submitted that the plaintiff has not sufficiently particularised a case of fraud.  Mr Cooke would in that event seek a direction that the applicants make disclosure of Mr Brown’s two statements.  Those statements would ordinarily attract legal professional privilege, but Mr Cooke submitted that consideration must yield to the suggestion of fraud.

[10] While a judgment may be impeached by a fresh action on the ground the judgment is tainted by fraud, the court will not permit such an action to proceed “unless satisfied there (is) a reasonable probability of the fraud alleged being established”.  Further, the onus of demonstrating the existence of that reasonable prospect of success rests on the plaintiff.  It falls to the plaintiff to produce “evidence of facts discovered since the judgment complained of which raise a reasonable probability of the action succeeding…”.  See the unreported judgment of Young J in the Supreme Court of New South Wales in Wentworth v Rogers (19 June 1986). 

[11] On appeal in that case (Wentworth v Rogers (No 5) [1986] 6 NSWLR 534), Kirby P at pp 538-9 set out a number of relevant principles, including that “mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief … The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed”.  He mentions that “the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment”.  He confirms that “it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge”.  See also, in this jurisdiction, the decision of the Full Court in Boughen v Abel [1987] 1 Qd R 138, 146.

[12] The plaintiff has not discharged that burden.  The case he raises does not pass beyond speculation.  The explanation given by Mr Brown for the development of his recollection is not inherently improbable.  There is no reason to reject it as implausible.  On the other hand, in addition to Mr Brown’s alleged perjury, the plaintiff alleges serious fraud on the part not only of the first defendant, but also involving his solicitors, who are officers of the Supreme Court.  The solicitors’ seeking disclosure of any CT images, or confirmation that the plaintiff did not have them, was an ordinarily prudent step in preparation, and there is no basis for even suspecting it carried a sinister overtone.  There is likewise no basis for even suspecting that either the first defendant or the solicitors pressured Mr Brown in respect of his recollection, let alone pressured him into giving the particular account he subsequently gave in oral evidence.

[13] Mr Cooke relied on the decision of the Court of Appeal in Cosgrove v Johns [2002] 1 Qd R 57.  For present purposes that case was factually very different from this.  There the primary judgment was set aside on the basis of direct evidence of fraud provided in statement form by a witness who died, from a condition of which he was aware, three days later.

[14] It would be wrong to accede to Mr Cooke’s submission that the plaintiff should be given disclosure to facilitate the possible further development of the case he would wish to promote.  That would contemplate a classical fishing expedition.

[15] The second claim should be struck out as disclosing no reasonable cause of action (Rule 171(1)(a)), and as an abuse of process ((e)).  In addition, in its present deficient form, it is scandalous and embarrassing.  As the matter has been presented, it is not in any event capable of resuscitation.  Being based speculatively on unparticularised fraud, the whole proceeding should in these circumstances be struck out. 

[16] There will accordingly be an order that the claim and statement of claim be struck out.

[17] As to costs, they obviously must follow the event.  The circumstances listed by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, as justifying an award of indemnity costs, include making irrelevant allegations of fraud, and groundless allegations.  See also Emanuel Management Pty Ltd v Foster’s Brewing Group Ltd [2003] QSC 299.

[18] The speculative assertion in this case of something as serious as fraud upon the court, involving alleged perjury by a witness, and alleged complicity not only of the first defendant, but also solicitors as officers of the Supreme Court, where the allegation has at all times remained unparticularised with no reasonable prospect of its being substantiated, warrants an award of indemnity costs. 

[19] There will also, therefore, be an order that the plaintiff pay the first and second defendants’ costs of and incidental to the application to be assessed on the indemnity basis.