Courtney v Chalfen[2023] QSC 126

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant, Eleanor Sophie Chalfen, for orders and declarations against her estranged husband, the plaintiff, Mr Courtney.  The outcome sought is that the current proceedings be stayed and Mr Courtney restrained from bringing any further such proceedings in this jurisdiction. The premise underpinning the application is that the current proceedings are an abuse of process and yet another attempt by Mr Courtney to litigate an alleged claim for damages for conversion and breach of bailment against Ms Chalfen in this jurisdiction.  That claim being over a number of items located in the Cayman Islands including gold bullion, Golden Eagle coins, a collection of rare vinyl records and Blu-Ray discs, a number of significant sunglasses and other personal items of clothing, jewellery and furniture.^[1] 
2. [2]
   In order to determine the application it is necessary to set out the relevant factual background.^[2]

Relevant Background

3. [3]
   Mr Courtney is an Australian citizen who was admitted as a solicitor in Queensland in 1999.  For a time he worked as a lawyer and resided in the Cayman Islands.  Mr Courtney married  Ms Chalfen in the Cayman Islands in July 2014 but they separated in July 2016. During the course of their short-lived marriage the couple resided in Ms Chalfen’s apartment in the Cayman Islands and Mr Courtney stored some of his property – including (apparently) the items, in a guest bedroom there. In 2017 Ms Chalfen petitioned for divorce in the Grand Court of the Cayman Islands.  Some of the items were then moved to a storage shed and some items have apparently been damaged. In 2018 Mr Courtney was deported from the Cayman Islands after serving a term of imprisonment there for a dangerous driving offence. He subsequently moved back to Queensland.
4. [4]
   Since this time Mr Courtney has been defiant and relentless in his pursuit of his former wife for conversion/breach of bailment and damage to some of the items.
5. [5]
   In February 2020 (as a self-represented litigant) he commenced proceeding 2178 of 2020 in this court against Ms Chalfen claiming damages for conversion and breach of bailment for wrongly detaining the items. On 26 June 2020 Williams J ordered a stay of this proceeding pursuant to rule 127 of the Uniform Procedure Rules 1999 (Qld) (UCPR) on the basis that this Court was an inappropriate forum in which to try the claim.^[3] On 24 July 2020 Williams J also ordered that Mr Courtney pay Ms Chalfen’s costs.  
6. [6]
   Mr Courtney appealed this decision but on 18 December 2020 the Court of Appeal dismissed the appeal with costs.^[4]  An application for special leave to the High Court by Mr Courtney was subsequently dismissed.^[5] 
7. [7]
   On 11 October 2022, Mr Courtney filed an interlocutory application in proceedings 2178 seeking to set aside the stay order and the subsequent cost order on the basis that both orders were obtained by fraud. That application was initially listed for mention on 10 November 2022.  But on 2 November 2022, a cross-application was filed by Ms Chalfen seeking to have the 11 October 2022 application dismissed. That application was heard on 24 November 2022, at which time Crowley J dismissed Mr Courtney’s 11 October application and made an order for fixed costs against him.  Relevantly, there was no appeal of either of these orders.
8. [8]
   On 9 February 2023, Mr Courtney filed the claim and a statement of claim in the current proceeding 1353 of 2023 seeking orders as follows:

1. 1.
   That the following order made on 26 June 2020 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) of the Uniform Civil Procedure Rules as it was obtained by fraud:

1. (a)
   The proceeding be permanently stayed.

1. 2.
   The following order made on 24 July 2020 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) as it was obtained by fraud:

1. (b)
   The respondent/plaintiff pay the applicant’s/defendant’s costs of an incidental to the application in the proceeding on the standard basis.

1. 3.
   The following order made on 24 November 2022 in Claim 2178 of 2020 be set aside under Rule 667(2)(b) as it was obtained by fraud:

1. 2.
   The plaintiff pay the defendant’s costs of the application in the fixed sum of $9,075.00.

Alternatively,

1. 4.
   The following order made on 26 June 2020 in Claim 2178 of 2020 be set aside under Rule 668(1)(b) of the Uniform Civil Procedure Rules as the discovery of new facts would have entitled the plaintiff to an order or decision in his favour or to a different order:

1. (a)
   The proceeding be permanently stayed.

1. 5.
   The following order made on 24 July 2020 in Claim 2178 of 2020 be set aside under Rule 668(1)(b) as the discovery of new facts would have entitled the plaintiff to an order or decision in his favour or to a different order:

1. (c)
   The respondent/plaintiff pay the applicant’s/defendant’s costs of and incidental to the application in the proceeding on the standard basis.

1. 6.
   The following order made on 24 November 2022 in Claim 2178 of 2020 be set aside under Rule 668(1)(b) as the discovery of new facts would have entitled the plaintiff to an order or decision in his favour or to a different order:

1. 2.
   The plaintiff pay the defendant’s costs of the application in the fixed sum of $9.975.00.

9. [9]
   The approach by Mr Courtney in seeking relief by way of claim and statement of claim was described by counsel for Ms Chalfen before me as “unorthodox.”^[6] I accept that characterisation as correct but perhaps explicable because Mr Courtney’s earlier (unsuccessful) attempt to set aside the orders made in proceedings 2178 by interlocutory application was also described (by a different counsel) as unorthodox.^[7]
10. [10]
    By the current proceeding, Mr Courtney is seeking to set aside the orders made in proceeding 2178 [pursuant to UCPR r 667(2)(b)] on the basis that those orders were obtained by fraud or alternatively [under UCPR r 668(1)(b)] that facts have been  discovered which would have entitled him to an order or decision in his favour or to a different order. Mr Courtney also seeks to set aside the cost order made by Crowley J for the same (alternative) reasons.
11. [11]
    On 17 April 2023, Ms Chalfen filed a conditional notice and intention to defend the current proceeding which states relevantly as follows:

1. ‘1.
   The relief claimed in the proceeding is not final, but rather interlocutory relief properly sought in the proceeding 2178/2020 in this Court (Earlier Proceeding).

1. 2.
   Further and alternatively, the plaintiff is, by this new proceeding, seeking to re-agitate matters already litigated to finality between the parties in the Earlier Proceeding.

1. 3.
   Further and alternatively, the plaintiff did not have any right under rule 125 of the Uniform Civil Procedure Rules 1999 or otherwise to serve the claim in this proceeding on the defendant outside Australia.

1. 4.
   Further and alternatively, the proceeding is an abuse because an application in the Earlier Proceeding by the plaintiff for the relief sought in this proceeding has already been heard and determined against the plaintiff by Justice Crowley on 21 November 2022.’^[8]

12. [12]
    On 2 May 2023, Ms Chalfen filed the current application seeking the following  orders:^[9]

1. ‘1.
   A declaration that the claim was not properly served.

1. 2.
   The proceeding be permanently stayed.

1. 3.
   In the alternative to paragraph 2, the proceeding be stayed until payment of the Defendant’s costs in proceedings 2178/20 and 7938/20.

1. 4.
   The plaintiff be permanently restrained from commencing any proceeding (including any interlocutory proceeding, but excluding any appeal from the orders sought in this application) other than with the leave of a judge of the Court.

1. 5.
   Such further or other relief as the Court deems just (including with respect to such leave as may be necessary to read or refer to in this proceeding documents filed in proceedings 2178/20 and 7938/20).

1. 6.
   The plaintiff pay the defendant’s costs.’

13. [13]
    The application came before me in the applications list on 2 June 2023.
14. [14]
    One of the arguments maintained by Ms Chalfen was that Mr Courtney was seeking to reagitate issues that were (or ought to have been) ventilated in the hearing on 24 November 2022 (before Crowley J). Mr Courtney’s response was that his 11 October application was not heard on the merits on that day (as he had only listed it for mention).
15. [15]
    Justice Crowley’s reasons were not available at the hearing before me as they had not been published and a transcript had not been requested by the parties.  The reason for the latter I understand being to avoid unnecessary and further costs. But after reserving my decision and considering the parties submissions in more detail, I felt it prudent and necessary to obtain a copy of these ex-tempore reasons.  A revised copy of that transcript was therefore urgently obtained and provided to the parties on 6 June 2022.^[10]
16. [16]
    Justice Crowley’s reasons reveal that he was not satisfied that there was any evidentiary basis for the allegations of fraud maintained by Mr Courtney and on that basis he dismissed Mr Courtney’s 11 October application.^[11] I will return to the substance of this decision where relevant later in these reasons. 

Issues

17. [17]
    Procedural and form matters aside, the following five issues (with considerable overlap) emerge as the real issues for my determination in this case:

1. (a)
   First: Are there any facts that have now been discovered which, had they been available before Williams J or Crowley J in proceeding 2178 would have led to the making of a different order?
2. (b)
   Secondly: Is Mr Courtney attempting to relitigate matters previously raised before Crowley J? 
3. (c)
   Thirdly: Is there any basis for the allegations of fraud made by Mr Courtney?
4. (d)
   Fourthly: Is this proceeding an abuse of process such that it should be stayed?
5. (e)
   Fifthly: Should Mr Courtney be restrained in this court from commencing further proceedings about the items?

18. [18]
    The starting point is to consider the fresh or new facts that Mr Courtney relies upon.

Issue one:  Discovery of new facts

19. [19]
    The new facts that Mr Courtney relies upon can be classified under four headings which are dealt with in turn below.

Hatfield evidence

20. [20]
    Mr Courtney’s submission is that Ms Laura Hatfield (Ms Chalfen’s solicitor in the divorce proceedings) acted dishonestly when she represented to this Court in proceeding 2178 that (among other things) the gold bullion was subject to the jurisdiction of the Grand Court of the Cayan Islands when she knew that the Grand Court had ruled that the gold bullion was a non-matrimonial asset.
21. [21]
    The evidence said to underpin this submission is twofold.
22. [22]
    The first is an email from Ms Hatfield to Mr Courtney dated 11 August 2019.  This email relevantly stated as follows:

“As you are aware, Elle understands that the one kilogram bar and 20 one ounce gold eagle coins (2010) which you previously owned were given by you to her Mother as part payment of a loan her Mother gave you for legal fees incurred in your defence of criminal charges.  The balance of that loan remains due and owing.

…

None of the matters raised by you are relevant to the making of a financial order in the Cayman Divorce proceedings.  As you will recall Judge Williams has indicated to the parties that he does not have any jurisdiction over a dispute in relation to the gold as Elle does not assert any ownership interest and also that he will not entertain any dispute about chattels…

…”

23. [23]
    The other fact referred to by Mr Courtney emerges from the affidavit of Ms Hatfield relied upon by Ms Chalfen in the hearing before Williams J in proceeding 2178 . The offending part of this affidavit is said by Mr Courtney to be at paragraph 9 which provides as follows:^[12]

“In the circumstances that the parties are still completing [a phase of divorce proceedings relating to financial matters], any asset of a party, regardless of whether it is pre-marital asset is subject to the jurisdiction of the Grand Court until that Court makes a final order dealing with financial matters relevant to the divorce which either specifies the treatment of the parties’ assets or does not involve an asset of a party.

In the circumstances that the Plaintiff asserts that the Gold Bullion…is his property, then that Gold Bullion is subject to the jurisdiction of the Grand Court for the reasons set out in paragraph 8 above.”

24. [24]
    I reject Mr Courtney’s submission that this evidence is a basis for setting aside the orders made in proceeding 2178 or the cost order made by Crowley J for the following four reasons.
25. [25]
    First: The evidence does not satisfy the requirements for the admission as fresh evidence as discussed by Margaret Wilson AJA (with reference to the relevant High Court authorities) in IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428.^[13]  For example, Mr Courtney’s explanation that he must have received the email when it was originally sent but he did not remember seeing it at the time is insufficient to satisfy the “no lack of reasonable diligence test”.^[14]   But  even if I am wrong about this, as discussed in paragraph 29 below,  I am otherwise not satisfied that it is “almost certain” or “reasonably clear” that the opposite result would have been produced if the evidence had been available before Williams J^[15] or that on any view, Mr Courtney would have been entitled to an order in his favour or to a different order. 
26. [26]
    Secondly: the nature and effect of this evidence as submitted by Mr Courtney is entirely misconceived. For example:   

1. (a)
   On an ordinary reading of Ms Hatfield’s email of 11 August, she was simply stating her opinion that if Mr Courtney asserted that he owned the gold bullion, that is, if he denied that Ms Chalfen’s mother was the owner of it, then that gold bullion would be property available for distribution in the divorce proceedings. Paragraph 9 of Ms Hatfield’s subsequent affidavit is clearly consistent with the contents of this email; and

2. (b)
   The tunnel visioned focus on this evidence overlooks other paragraphs of Ms Hatfield’s affidavit most particularly paragraph 12 which relevantly states as follows: 

“Judge Williams, the judge presiding in the Divorce Proceedings, has previously informed the Plaintiff and the Defendant as a preliminary indication in respect of the Divorce Proceedings that if the Defendant did not make a claim to the gold (which I understand to include the Gold Bullion as defined in the Statement of Claim), on the basis that the gold did not belong to the Plaintiff, but to her mother as the Plaintiff had agreed to give the Defendant’s mother the gold in return for her mother paying legal expenses incurred by the Plaintiff in unsuccessfully defending criminal proceedings against him in the Cayman Islands, then the gold would not be an asset which was relevant to the divorce.  He further commented that any dispute as to ownership of the gold between the Plaintiff and the Defendant’s mother would not be a matter that he could determine in the divorce and it would have to form part of the separate civil claim.” [emphasis added]

27. [27]
    Thirdly and not the least: the alleged discrepancy and inconsistency in this evidence and its alleged consequence leading to the allegation of fraud against Ms Hatfield was squarely raised and ventilated by Mr Courtney at the hearing before Crowley J on 24 November 2022.   The following observations in Crowley J’s reasons reveal that he considered the arguments raised by Mr Courtney about the fresh evidence or newly discovered facts underpinning the fraud allegations:^[16]

“The matters that have been referred to by Mr Courtney do not rise to that level as required and are of the nature of the types of matters which in Wentworth v Rogers were indicated as being insufficient to discharge the onus.  Further, they do not appear to me to be matters that are new as I do consider and accept that they were matters that were previously known to both the Plaintiff but also, more particularly, were amongst the evidence in materials that were before the Court.”

28. [28]
    Fourthly, I am not satisfied that there is sufficient basis or any basis shown by this evidence that would have entitled Mr Courtney to an order lifting the stay in proceeding 2178 or to a different order, such as the one that he is obviously seeking – that is one that sees his claim for damages for bailment against Ms Chalfen heard in this jurisdiction. This finding is supported by the following observations of the Court of Appeal in confirming that an order for a stay of proceeding 2178 was appropriate, in Courtney v Chalfen [2020] QCA 294:

1. [55]
   When one examines the factors listed, all of which are justified on the material before the learned primary judge, it cannot be demonstrated that her Honour erred in reaching the conclusion that a stay was appropriate. Some examples suffice to make the point.

1. [56]
   It is correct to say that the only connection with Queensland is that the appellant resides here now, and some of his assets have been sent here. However, apart from discovering the alleged consequences of mis-packing the vinyl records and Blu-Ray discs, the damage to two pairs of sunglasses and other personal items, and that some personal items of clothing and furniture had not been packed, everything else to do with this case concerns the Cayman Islands.

1. [57]
   Other than the appellant, no witnesses are present in Australia. Indeed, the respondent’s mother, who apparently has a claim to the gold, is resident in the United Kingdom.

1. [58]
   The respondent cannot travel because of serious health issues. She is already involved, as is the appellant, in court proceedings in the Cayman Islands concerning matrimonial property. The appellant already has participated in those divorce proceedings by a form of video conference. His inability to travel to the Cayman Islands because of his convictions and deportation can be overcome in that way.

1. [59]
   The appellant’s contention that he cannot meaningfully institute proceedings in the Cayman Islands in respect of the claims he now makes here, cannot be sustained. He professes to be without means, but the fact is that on his own case he is in possession in Queensland of numerous assets such as the apparently valuable collection of rare vinyl records and Blu-Ray discs, as well as the apparently valuable collection of sunglasses, all of which could probably be realised in order to meet the filing fees applicable to commencing proceedings in the Cayman Islands. Even though the realisation of those assets might not produce sufficient funds to instruct local solicitors in the Cayman Islands, nonetheless the appellant is a fully qualified lawyer and, as his appearance before this Court demonstrated, fully able to conduct his own litigation.

…..

1. [61]
   Finally, the learned primary judge found that any asset of a party to a marriage, regardless of whether it was a pre-marital asset, was subject to the jurisdiction of the Grand Court of the Cayman Islands until that court made a final order dealing with the financial matters relevant to the divorce. That finding is not challenged by the appellant, at least not beyond mere assertion. That being so, contentions by the appellant about ownership of the gold and other items of his properly left in the Cayman Islands are matters which are likely to be dealt with by the Grand Court of the Cayman Islands. As her Honour found, that was a compelling reason to stay the proceedings in Queensland.

[Emphasis added]

29. [29]
    Fourthly, taken at its highest, the effect of the evidence of the “newly discovered” facts as was ultimately submitted by Mr Courtney, is that the items – most relevantly the gold bullion were not in fact part of the divorce proceedings in the Cayman Islands – as the Grand Court had ruled “it will not hear the gold.”^[17]  But even if this fact was somehow added into the melting pot of considerations in the application for a stay, I am not satisfied that this addition would  have resulted in a different order being made – most particularly a finding that this court was not an inappropriate forum for the trial of proceeding 2178.  It is clear on the analysis of the Court of Appeal set out above in paragraph 28 that although it was clearly not the jurisdiction Mr Courtney wanted to have his case ventilated in (most obviously for costs and convenience reasons given he now resides here), it was envisaged that civil proceedings (non-divorce/family law property dispute proceedings) could be commenced in the Cayman Islands for orders relating to the items; and that overall, there were overwhelming and compelling reasons to stay the proceedings in Queensland. That remains the case.

The Discovery of a 2009 decision published in the Cayman Island Court of Appeal

30. [30]
    The next new factual discovery relied upon by Mr Courtney is the Cayman Island Court of Appeal decision of W v W [2009] CILR 255 which he did not find until 20 December 2022. His evidence was that the decision was previously not known or available to him for the earlier hearing before Williams J because “…..Queensland was operating under severe COVID restrictions and the case if it was available online, was behind a paywall in the Cayman Islands.”^[18]
31. [31]
    I reject Mr Courtneys submission that this is new evidence capable of underpinning an order setting aside proceeding 2178 or Crowley J’s cost order for the following (cascading) reasons: 

    1. (a)
       First, the explanation as to why Mr Courtney only just discovered the case  does not satisfy the “no lack of reasonable diligence test”.^[19] But even if did, it does not explain why the case was not available for the hearing before Crowley J on 24 November 2022.
    2. (b)
       Secondly, Mr Courtney submitted that this case establishes that “in the case of short-term marriage a claimant is not entitled to share in pre-marital property.”^[20]  I reject that submission as it overstates the relevant observations of the court – namely that in a short marriage, a party is not “normally” entitled to a share of the property brought into the marriage by one of the parties. 
32. [32]
    But even if I am wrong and the case stands for the principle expounded by Mr Courtney, it was not articulated by him how it would have changed the ultimate outcome in proceeding 2178. But regardless and for the reasons expressed in paragraph 29 above, I am otherwise not satisfied that it would have changed the outcome of the hearing before Williams J or Crowley J in proceeding 2178.

Evidence presented to the Caymans Grand Court in 2017 and 2018

33. [33]
    The third category of new facts alleged by Mr Courtney is that evidence was presented on behalf of Ms Chalfen in the Cayman Grand Court in 2017 and 2018 that is inconsistent with evidence tendered on her behalf in proceeding 2178.^[21]
34. [34]
    In an affidavit sworn in the current proceedings, Mr Courtney explains why the “numerous facts throughout this [most recent] affidavit” were not before the court in proceeding 2178 of 2020 or before the Court of Appeal relevantly as follows:^[22]

“I did not have the opportunity to present these facts to the court for two reasons: First, I received the defendant’s submission on 20 April 2020 giving me 4 days to prepare for the 24 April 2020 hearing. This was during a time when law firms and libraries were closed due to COVID restrictions. Being self-represented most of this time was spent researching the law.

Second, as it was an interlocutory application, arguments as to the merits of the case were not appropriate and could not go before the Supreme Court.”

35. [35]
    Leaving aside the issue of the discovery of the 2009 case authority (which is dealt with under that heading earlier in these reasons), other new facts relied upon by Mr Courtney include conversations and meetings he had personally with Ms Hatfield back in 2017 and 2018 and how his recollection was contrary to Ms Hatfield’s evidence in proceeding 2178.^[23] One example being about the removal of some of  the items from the storage shed.
36. [36]
    Mr Courtney does not contend that these matters were not known to him at the time of the 2178 proceeding or the Court of Appeal hearing. Rather, the effect of his evidence is: he did not think about them at the time; that he was not given the opportunity to raise them at the time; and that the hearings before both Williams J and Crowley J were not hearings about the merits of his case so “his understanding” was he could not challenge the evidence or adduce this evidence. 
37. [37]
    I reject Mr Courtney’s submission that this is new evidence capable of underpinning an order setting aside proceeding 2178, the Court of Appeal decision or Crowley J’s cost order, for the following reasons: 

    1. (a)
       First: on any view, these matters are not newly discovered facts.
    2. (b)
       Secondly, even if they were and had been raised in any of the earlier proceedings (and for example Ms Hatfield had been challenged under cross examination about her statements), it is not apparent at all how this evidence is relevant to the issue of the stay determination; or how it would have changed the ultimate outcome in proceeding 2178 or the decision of the Court of Appeal. Again, for the reasons expressed in paragraph 29 above, even taking Mr Courtney’s point about these facts at its highest [that Ms Hatfield intentionally made contradictory statements in different proceedings], I am not satisfied that the admission of such facts would have had any bearing on the outcome of any of the earlier proceedings.

Evidence establishing dishonest conduct

38. [38]
    The last piece in the puzzle of new facts alleged by Mr Courtney is the alleged new fact that Ms Chalfen knew that fees paid to a QC to represent Mr Courtney in his criminal trial were a birthday present but nevertheless, she swore an affidavit in proceedings 2178 that the fees had been a loan from Ms Chaften’s mother for which the gold bullion was repayment.^[24]
39. [39]
    Again, Mr Courtney does not contend that these matters were not known to him at the time of proceeding 2178 or the Court of Appeal hearing. He relies on the same set of excuses proffered in paragraph 36 above to explain why this evidence was not adduced at the earlier hearings.
40. [40]
    I reject Mr Courtney’s submission that this is new evidence capable of underpinning an order setting aside proceeding 2178, the Court of Appeal decision or Crowley J’s cost order, for the reasons set out in paragraph 37 above.

Issue two: Is this an attempt to ventilate matters determined by Crowley J?

41. [41]
    In his most recent written submissions, Mr Courtney maintains (among other things) that:^[25]

“[t]he only application heard by His Honour, Justice Crowley, on 24 November 2022 was the defendant’s application to dismiss the fraud application on the basis it was incomplete.” 

[Emphasis added]

42. [42]
    I reject this submission as it is an incorrect characterisation of what happened on 24 November 2022. Rather, I am satisfied that the determination of Ms Chaften’s application required a consideration or an assessment of the merits of the 11 October application including whether it was underpinned by any evidentiary foundation. In dismissing the 11 October application,  Crowley J had the benefit of written and oral submissions from both sides (including Mr Courtney’s submission that directions should be made). Obviously this request was rejected.
43. [43]
    It is clear on the face of the reasons that Crowley J took into account the affidavit material from Mr Courtney about Ms Hatfield’s alleged conduct and the discrepancies in her evidence. Even if it is accepted that some of the matters now raised by Mr Courtney were not fully argued before Crowley J, for the reasons discussed in paragraphs 37 and 40 above, I am not satisfied that any of those matters are newly discovered facts or even if they were, they would have entitled Mr Courtney to a different order.
44. [44]
    The reality is that by the current proceedings Mr Courtney is attempting to re-ventilate the same issue he raised before Crowley J – that is, that the earlier orders were obtained by fraud.

Issue three: Is there a basis for the fraud allegations?

45. [45]
    By this current proceeding, Mr Courtney makes serious allegations of fraudulent and dishonest conduct including conspiracy to defraud against Ms Hatfield and Ms Chaften. Rule 667(2)(b) of the UCPR permits the court, in its discretion to set aside an order at any time if “the order was obtained by fraud”. 
46. [46]
    Allegations of actual fraud ought not be made lightly and must be established by strict proof.  The relevant principles were summarised more recently by Fraser JA (with whom Sofronoff P and Flanagan J agreed) in YIC Industrial Pty Ltd v SPA Investment Pty Ltd [2022] QCA 95.^[26]  In YIC, the Court of Appeal referred with approval to the primary judges discussion of the various cases on fraud including the following observations of the High Court in Clones Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12, which are most apposite to the present case:^[27]

”There must be “actual positive fraud, a mediated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not origination in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance would probably not be sufficient..”  

47. [47]
    With these principles in mind, I find that  the allegations of fraud made by Mr Courtney are baseless for the following reasons:

    1. (a)
       The allegation that Ms Hatfield acted fraudulently over her involvement and knowledge about the gold bullion is misconceived and unmaintainable for the reasons discussed at paragraph 37 above.^[28]
    2. (b)
       The allegation that Ms Chalfen acted fraudulently over her alleged knowledge that she knew that fees paid for a QC to represent Mr Courtney in his criminal trial were a birthday present, (and that she nevertheless swore an affidavit in  proceeding 2178 that the fees had been a loan from her mother for which the gold bullion had constituted repayment) are not maintainable. She was not challenged about this evidence in proceeding 2178 and as discussed at paragraphs 38 to 40 this is not a new fact.
    3. (c)
       The allegation that Ms Chalfen and Ms Hatfield agreed to use dishonest means to deprive Mr Courtney of the opportunity to litigate proceeding 2178 are also not maintainable because:^[29]

       1. no particulars of the alleged agreement other than to say it arose over the period from July 2016 to February 2023 are given; and
       2. it otherwise beggars belief how any agreement to derail proceeding 2178 could have been in motion well before that proceeding was conceived by Mr Courtney, or how it could still be in the process of being formed after those proceedings were stayed in 2020.
48. [48]
    It follows that the simple answer to issue three is no.

Issue four: Should the proceeding be stayed as an abuse of process?

49. [49]
    I accept that it is only in exceptional circumstances that the Court may conclude that a proceeding is an abuse of process.^[30]  The above analysis leads me to the conclusion that this is such an exceptional case.
50. [50]
    This finding is underpinned by the following matters:

    1. (a)
       First: The current proceeding is a blatant attempt to re-litigate the issue already determined by Crowley J late last year. There was no appeal of that decision;
    2. (b)
       Secondly:  The facts now relied upon were available to Mr Courtney at the time of the hearing before  Crowley J;
    3. (c)
       Thirdly: Other than the alleged effect of the decision in W v W, all of the “facts” relied upon for dishonesty were available to Mr Courtney at the time of the hearing of proceeding 2178 before Williams J;
    4. (d)
       Fourthly: None of the facts are new facts but even if they were, their admission would not have changed the outcome in any of the earlier proceedings;
    5. (e)
       Fifthly: the allegations of dishonesty are plainly flawed – and concerningly made by Mr Courtney as a qualified solicitor;
    6. (f)
       Sixthly: Mr Courtney has already had the benefit of an (unsuccessful) appeal to reverse the decision in proceeding 2178; and
    7. (g)
       Finally: It cannot be overlooked that Mr Courtney has not been deprived of the opportunity to litigate his claim against Ms Chalfen, he simply cannot do so in this jurisdiction.
51. [51]
    I therefore find that the current proceeding 1353 of 2023 is an abuse of process and ought to be stayed.

Issue five: Should Mr Courtney be restrained from commencing further proceedings?

52. [52]
    The power to restrain proceedings is found in UCPR r 389A. This rule provides relevantly as follows:

    1. (1)
       This rule applies if the court is satisfied that a party (the relevant party) to a proceeding (the existing proceeding) has made more than 1 application in relation to the existing proceeding that is frivolous, vexatious or an abuse of process.
    2. (2)
       The court may make an order under this rule on application by a party to the existing proceeding or on its own initiative.
    3. (3)
       The court may order that –

       1. The relevant party must not make a further application in relation to the existing proceeding without leave of the court; or
       2. The relevant party must not start a similar proceeding in the court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of the court.
    4. (4)
       The Supreme Court may also order that the relevant party must not start a similar proceeding in another court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of that court.
    5. (5)
       A court may dismiss an application made to the court in contravention of an order made under subrule (3) or (4) without hearing the applicant or another party to the application.
    6. (6)
       A court may at any time vary or revoke an order made by it under this rule.
    7. (7)
       If the Supreme Court makes an order under subrule (4) or varies or revokes an order made under subrule (4), the registrar of the Supreme Court must advise the registrars of the other courts.
    8. (8)
       Practice directions may set out procedures in relation to an application or order made under this rule.
    9. (9)
       This rule does not limit any inherent or other power of a court or judge.
    10. (10)
        In this rule -

application in relation to the existing proceeding includes an appeal in relation to the existing proceeding.

similar proceeding, in relation to an existing proceeding, means a proceeding in which-

1. (a)
   the relief claimed is the same or substantially the same as the relief claimed in the existing proceeding; or
2. (b)
   the relief claimed arises out of, or concerns, the same or substantially the same matters as those alleged in the existing proceeding.

[emphasis added]

53. [53]
    I am satisfied that this rule applies because Mr Courtney has effectively made more than one application in relation to the orders made by Williams J in proceeding 3178 that is frivolous vexatious or an abuse of process. Those applications are the current application and the application dismissed by Crowley J which both sought the same or substantially the same relief.
54. [54]
    This court also has an inherent power to stay proceedings as was recognised and discussed by Philippides JA in Lu v Petrou [2011] QSC 57, as follows:^[31]

“Australian superior courts have inherent jurisdiction to strike out or stay proceedings which are an abuse of process: Williams v Spautz.  Keane JA in Von Risesefer v Permanent Trustee Co Pty Ltd made the following observations about the court’s inherent jurisdiction:

It has long been established that a court has the power to ensure that its own processes are not abused.  The basic justification for this aspect of a court’s inherent jurisdiction was explained by Baron Alderson in Cocker v Tempest where his Lordship said:

The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.  The exercise of the power is certainly a matter for the most careful discretion.”

55. [55]
    The evidence and submission establish that Mr Courtney is plainly refusing to accept the outcome that has been fairly litigated: namely that this court is an inappropriate forum in which to hear his claim.  I accept Ms Chalfen’s submission that there is every reason to apprehend that, if he is not restrained, Mr Courtney will continue to vex her by filing further proceedings in this court. In all of the circumstances I  am satisfied that Mr Courtney should be restrained from doing so either under UCPR r 389A or the inherent jurisdiction of this court.

Orders

56. [56]
    I therefore order that:

    1. (a)
       Proceeding 1353 of 23 is permanently stayed.
    2. (b)
       Save for any appeal from this order, the plaintiff is restrained from bringing any proceeding in this Court or making any application in a proceeding in this Court against the defendant in respect of the subject matter of proceeding 2178/2020.
57. [57]
    I will hear the parties as to costs.