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  4. Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd - [2023] QSC 241

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Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd[2023] QSC 241

Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd[2023] QSC 241

SUPREME COURT OF QUEENSLAND

CITATION:

Farmers Fruit Box & Plastics Pty Ltd & Anor v Select Carbon Pty Ltd & Anor [2023] QSC 241

PARTIES:

FARMERS FRUIT BOX & PLASTICS PTY LTD (AS TRUSTEE FOR THE FARMERS FRUIT BOX UNIT TRUST)

ACN 004 359 979

(first plaintiff)

ALAN BRADLEY JORGENSEN (AS TRUSTEE FOR THE FARMERS FRUIT BOX UNIT TRUST)

(second plaintiff)

v

SELECT CARBON PTY LTD

ACN 143 394 138

(first defendant)

DARALEIGH PTY LTD (AS TRUSTEE FOR THE CHALMYNIA UNIT TRUST)

ACN 010 883 093

(second defendant)

FILE NO/S:

BS 1335/23

DIVISION:

Trial Division

PROCEEDING:

Miscellaneous Civil Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2023

JUDGE:

Bradley J

ORDER:

The order of the Court is that:

  1. Pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld):
    1. The plaintiffs’ statement of claim filed on 3 February 2023 is struck out; and
    2. The plaintiffs pay the defendants’ costs of the applications filed on 18 August 2023 calculated on the indemnity basis.
  2. Pursuant to s 5(2) of the Vexatious Proceedings Act 2005 (Qld) (the Act), the defendants have leave to apply to the Court for a vexatious proceedings order in relation to Alan Bradley Jorgensen.
  3. Pursuant to s 6(2) of the Act:
    1. All of proceeding BS 1335/23, instituted by Alan Bradley Jorgensen, is permanently stayed;
    2. Alan Bradley Jorgensen is prohibited from instituting proceedings in Queensland with respect to, connected with, or arising out of:
      1. (i)
        the dispute between the plaintiffs and the defendants the subject of proceeding BS 1335/23 (the “Dispute”), or
      2. (ii)
        the Farmers Fruit Box Unit Trust (the “FFBUT”),

without the prior leave of the Court;

  1. Alan Bradley Jorgensen is prohibited from causing any proceeding to be instituted in Queensland with respect to, connected with, or arising out of the Dispute or the FFBUT, without the prior leave of the Court; and
  2. Alan Bradley Jorgenson pay the defendants’ costs of proceeding BS 1335/23 to be calculated on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – FRIVOLOUS OR VEXATIOUS PLEADING – where the first plaintiff commenced proceedings in 2021 in New South Wales against the defendants and another company – where the Supreme Court of New South Wales, inter alia, struck out the statement of claim, gave leave to replead, and stayed the proceeding against the second defendant pending payment by the first plaintiff of its costs – where the first plaintiff did not replead or pay the second defendant’s costs – where the New South Wales proceeding remains on foot – where the current proceeding arises out of the same facts, and claims the same relief, as in the New South Wales proceeding – where the plaintiffs offer various justifications for the abandonment of the New South Wales proceeding and the institution of the Queensland proceeding – whether the statement of claim should be struck out, and the proceeding permanently stayed, as an abuse of process

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS – VEXATIOUS LITIGANT – where the current proceeding has been found to be an abuse of process – where the second plaintiff, who is a director of the first plaintiff, has previously been found to be “a person who has frequently instituted or conducted vexatious proceedings in Australia” – whether a vexatious proceedings order, restraining the first plaintiff from instituting, or causing to institute, proceedings similar to the current proceeding, ought be made

Uniform Civil Procedure Rules 1999 (Qld), r 171(1)(d), r 171(1)(e)

Vexatious Proceedings Act 2005 (Qld), s 5(1)(d), s 5(2), s 6(1)(a), s 6(2)

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27, cited

Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd [2021] NSWSC 563, considered

Hambleton v Labaj [2011] QCA 17, applied

Jorgensen v Jorgensen [2016] QSC 193, cited

Jorgensen v Jorgensen [2017] QCA 110, cited

Jorgensen v Shorten (No 2) [2016] NSWSC 1761, cited

Lewis v Minister for Police and Corrective Services (Qld) [2022] QSC 70, applied

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48, cited

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, cited

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, applied

COUNSEL:

The first plaintiff appeared, by leave, by its director A B Jorgensen

The second plaintiff appeared on his own behalf

SM McNeil for the first and second defendants

SOLICITORS:

The first and second plaintiffs were not legally represented

MacDonnells Law for the first defendant

Sparke Helmore Lawyers for the second defendant

  1. [1]
    The defendants have applied to strike out the statement of claim filed by the plaintiffs on 3 February 2023.  The defendants contend the pleading is vexatious or otherwise an abuse of the process of the Court.  They make their application pursuant to r 171(1) of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR).
  2. [2]
    The defendants also seek orders that would permanently stay the whole proceeding and prevent the second plaintiff, Alan Bradley Jorgensen, in his personal capacity and as trustee for the Farmers Fruit Box Unit Trust (the FFBUT), instituting or causing any proceeding to be instituted in Queensland with respect to, connected with, or arising out of the dispute with the defendants the subject of the proceeding, and with respect to, connected with, or arising out of the FFBUT, without the leave of the Court.  The defendants seek these orders pursuant to the Vexatious Proceedings Act 2005 (Qld) (the Act).
  3. [3]
    Alternatively, the defendants seek orders that the plaintiffs provide security for the defendants’ costs of the proceeding, and that the proceeding be stayed until the security is provided.

Background

  1. [4]
    From about August 2016, Farmers Fruit Packaging Pty Ltd (FFP) leased premises from the second defendant (Daraleigh) near Innisfail in north Queensland.  FFP was then the trustee of the FFBUT.  From the premises, FFP operated a business importing and re-selling packaging boxes for bananas.  FFP is not a party to this proceeding.
  2. [5]
    The first defendant (Select Carbon) operated a business from adjacent premises, which it leased from Daraleigh.  Select Carbon’s business involved the production of pulverised charcoal. 
  3. [6]
    In February 2017, some machinery used by Select Carbon malfunctioned, producing a thick layer of black carbon dust.  The plaintiffs allege that this caused extensive damage to FFP’s stock and prevented FFP carrying on its business.
  4. [7]
    In March 2018, Mr Jorgensen, on behalf of FFP, executed a deed of assignment.  By the deed, FFP purported to appoint the first plaintiff (FFBP) as trustee of the FFBUT in place of FFP, and FFP purported to assign its claims against the defendants to FFBP.  Mr Jorgensen is a director of FFBP. 

The NSW proceeding

  1. [8]
    On 22 August 2019, FFBP commenced proceedings in the Supreme Court of New South Wales (the NSW proceeding) against the defendants and a third company, Select Carbon Bio Char Pty Ltd (SCBC).  FFBP did so as trustee of the FFBUT.  FFBP claimed damages for negligence, trespass, and/or nuisance (on the part of Select Carbon and SCBC), and breach of contract (on the part of Daraleigh).  All these claims stemmed from the February 2017 incident. 
  2. [9]
    In June 2020, Mr Jorgensen says he was appointed co-trustee of the FFBUT, apparently sharing the role with FFBP. 
  3. [10]
    On 20 May 2021, the Supreme Court of New South Wales struck out FFBP’s statement of claim.  Parker J published reasons for the decision.[1]  His Honour described the pleading as defective on the basis that it did not plead the material facts necessary to establish that:
    1. FFP’s cause of action had been validly assigned to FFBP;
    2. Select Carbon and SCBC owed a duty of care to FFP; and
    3. Daraleigh had breached its obligations to FFP under the lease. 
  4. [11]
    The Court also:
    1. gave FFBP leave to replead;
    2. stayed FFBP’s claims until the NSW proceeding was brought into compliance with r 7.1 of the Uniform Civil Procedure Rules 2005 (NSW);
    3. ordered FFBP to pay the costs of Select Carbon, SCBC, and Daraleigh; and
    4. ordered that the proceeding against Daraleigh be stayed until FFBP paid $30,000 to Daraleigh pursuant to the costs order.
  5. [12]
    FFBP has not paid $30,000 (or any amount) to Daraleigh for its costs.

The Queensland proceeding

  1. [13]
    On 3 February 2023, the plaintiffs brought this proceeding (the Queensland proceeding) in this Court against the defendants.  The plaintiffs claim damages for negligence, trespass, and nuisance (on the part of Select Carbon), and breach of contract (on the part of Daraleigh as lessor) stemming from the February 2017 incident.  The Queensland proceeding arises out of the same facts and by it the plaintiffs claim the same relief as FFBP seeks in the NSW proceeding.
  2. [14]
    On 18 August 2023, the defendants filed their application in the Queensland proceeding.

The issues

  1. [15]
    The following issues fall to be considered. 
    1. Whether the statement of claim filed in the Queensland proceeding is vexatious, or otherwise an abuse of the process of the Court such as to warrant striking it out; and
    2. Whether a vexatious proceedings order should be made.

Striking out the statement of claim in the Queensland proceeding

  1. [16]
    The defendants submit that the institution of the Queensland proceeding “has plainly been designed to avoid having to comply with the orders” made in the NSW proceeding.  The defendants describe the Queensland proceeding as a “textbook” example of abuse of the Court’s process.[2]  They say it ought to be struck out pursuant to r 171(2).
  2. [17]
    As the High Court noted in Batistatos v Roads and Traffic Authority (NSW),[3] “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories.”  The conduct that has been held to be an abuse, and that which has not, provide some guidance.
  3. [18]
    One category of conduct which has received judicial attention as a potential abuse of process is the institution of a second proceeding where the first proceeding remains on foot in another forum.  In Michael Wilson & Partners Ltd v Nicholls,[4] the High Court recognised this to be an abuse of process “if it would be unjustifiably oppressive to the party that is named as defendant in both forums”.[5]  
  4. [19]
    Some caution is necessary.  Heydon J noted in Michael Wilson:

“The fact that the same transactions and events are the subject of two separate proceedings in different forums may raise a question about abuse of the process of one or other of those forums, but it does not lead inexorably to the conclusion that there is an abuse.”[6]

  1. [20]
    In Lewis v Minister for Police and Corrective Services (Qld),[7] Burns J observed that:

“it should come as no surprise to record that the commencement of a second or subsequent proceeding in a court if a proceeding is already pending with respect to the matter or matters in issue in the same court will be ‘prima facie vexatious and oppressive’ and liable to be stayed or set aside as an abuse of process of that court.  Indeed, unless proper justification for the maintenance of multiple proceedings can be discerned, such an outcome would have to be regarded as inevitable.”

  1. [21]
    As Burns J noted, the question is whether one can discern “proper justification for the maintenance of multiple proceedings”. 
  2. [22]
    Mr Jorgensen made the following submissions against the proposition that the Queensland proceeding is an abuse of process:
    1. First, he said that the NSW proceeding had in fact been discontinued.
    2. Second, he said the decisions to institute the NSW proceeding and then the Queensland proceeding were made because of an apprehension of bias on the part of various judicial officers.
    3. Third, he said that, in the NSW proceeding, the order staying the claim against Daraleigh pending payment of costs would prevent the plaintiffs from progressing their claim against the defendants.
    4. Fourth, he emphasised that the defendants had not yet filed a defence.
  3. [23]
    It is convenient to consider each of these submissions in turn.
  4. [24]
    Mr Jorgensen also alleged criminal conduct by the defendants. It is not necessary to repeat those allegations for the purpose of deciding the application.

Discontinuance

  1. [25]
    Mr Jorgensen submitted that the NSW proceeding had been discontinued or should be treated by this Court as if it had been discontinued.  He said he “filed” a notice of discontinuance, but it was not accepted by the registrar because Parker J had directed the registry not to accept the notice. 
  2. [26]
    The relevant sequence of events is detailed in [83]-[87] of the reasons of Parker J:
  1. “[83]
    On 30 April, the Friday before the resumed hearing on Monday 3 May, my Associate provided me with an email from Mr Jorgensen attaching a Notice of Discontinuance. The email had been sent overnight and stated (emphasis original):

On behalf of the Plaintiff and pursuant to UCPR REG 12.1, the Plaintiff, Farmers Fruit Box & Plastics Pty Ltd ATF the Farmers Fruit Box Unit Trust hereby Discontinues this Proceeding.

Given that the Defendants have not yet filed any Defence, then Leave to Discontinue, is not required.

“Actus Curiae Neminem Gravabit” = “No party shall suffer due to an act of the Court”.

This applies here where this Court in replacing Justice Robb, with Parker J, a total stranger to the case, in the middle of case being part heard, prejudiced the Plaintiff greatly. Especially after Parker J had recently dealt my wife and daughter and I, a cruel blow just months earlier in a similar case but for $15M. Now Parker J is rolling up his sleeves for another crack at us.  That weird decision is being prepared for a Judicial Review.

So the Plaintiff hereby Discontinues this Proceeding forthwith, and will not be attending any more hearings before this Judge Roy Bean, alias, Judge Carl Parker.

  1. [84]
    …
  2. [85]
    In response, I directed my Associate to reply as follows:

It seems that you are incorrect in stating that leave to discontinue is not required because the defendants have not yet filed their defences.  Discontinuance of proceedings is governed by Rule 12.1 of the Uniform Civil Procedure Rules. That Rule requires either the consent of all other active parties or the leave of the Court.

Furthermore, you have not been granted leave to conduct the proceedings generally on behalf of the plaintiff company.

In these circumstances, the purported notice of discontinuance appears to be invalid, and cannot be accepted for filing.  The hearing of the applications will proceed on Monday as arranged.

If you wish to contend that the purported notice of discontinuance is valid despite the points made above you may do so at Monday’s hearing.

Finally, I remind you that you should on no account communicate with the Court without prior leave of the Court or prior consent of the other parties.[8]

  1. [86]
    At the hearing on 3 May Mr Jorgensen professed outrage at this response.  He suggested that it underlined my supposedly biased approach.  But when I asked him whether he had any submission to make in response to the points in the email about the Court’s power to permit him to discontinue the proceedings on the plaintiff’s behalf without the consent of the defendants or the prior leave of the Court, he had nothing to say.
  2. [87]
    The view expressed in my emails was only preliminary.  But in the light of Mr Jorgensen’s non-response, I see no reason to depart from it.  In my view, Mr Jorgensen had no right to discontinue the proceedings in the circumstances and the purported Notice of Discontinuance was invalid and of no effect.  I directed the Registry not to accept it for filing.”
  1. [27]
    Despite Mr Jorgensen’s submissions to the contrary, the NSW proceeding remains on foot.  As Parker J pointed out to Mr Jorgensen, the New South Wales rules require that a plaintiff obtain either “the consent of each other active party in the proceedings” or “the leave of the court” to discontinue.[9]  Mr Jorgensen has not obtained either of those things. 
  2. [28]
    There is no evidence that he has sought either.  This Court should not treat the NSW proceeding as if it has been discontinued, while Mr Jorgenson has not taken the steps necessary to achieve that outcome.
  3. [29]
    FFBP has merely abandoned the NSW proceeding. 

Bias

  1. [30]
    In explaining his decision to commence the Queensland proceeding, Mr Jorgensen told this Court:

“[I]t was my choice to go to New South Wales thinking I’m going to get a fair go, a fair judge.  And for a judge who I paid good money to in the court, in the New South Wales court, I’ve got a judge who’s dishonest.  So of course I have to bail out.  And anybody who’s there said no, you shouldn’t have, you should have continued on and done your best is a fool, in my view, because you just can’t win when a judge is … saying he’s not under his judicial oath.  So that’s all I got to say in the matter, your Honour.  So I got out of there as quick as I can.”

  1. [31]
    In the above passage, Mr Jorgensen referred to an allegation that Parker J had said that he was not bound by judicial oath because the hearing to determine the strike out application was interlocutory in nature.  Mr Jorgensen put the allegation this way in his affidavit sworn 4 October 2023:

“[At the hearing,] I argued that Parker J, had broken his Judicial Oath and instead of Parker J arguing that he did not break his Judicial Oath, he instead said straight out, ‘No, my judicial oath only applies in Trials, not in interlocutory hearings.’  And further this ex computer programmer went on to say ‘well, can you take me to the case law that says my Judicial Oath does apply in Interlocutory hearings. ?’ After some very harsh words being exchanged about his take on this Judicial Oath subject, he repeated his words again about his Judicial oath not applying here.  So by saying such an absurd thing, then he was really admitting to not abiding by his Judicial Oath.  The Court transcript would prove this as would the defendants’ lawyers, I’m sure.”[10]

  1. [32]
    When asked why the proceeding was instituted in New South Wales, Mr Jorgensen alleged bias on the part of the Queensland judiciary.  He said:

“So what I’m saying is I was getting led a goose - around the mulberry bush, or something, in Queensland, so I thought, well, by - because of all that with my brother spending a million and a-half, and he seems to be very well connected, including taking the judge fishing, often, I thought, well, I’m wasting my time in Brisbane.  But now … some of the old guard, like Justice Daubney,[11] etcetera, have moved on out of the court, so I felt that, okay, it was probably time to come back, and come back to Queensland given I had good legal representation, which will resume once we get to the next step. … So that’s why I went to New South Wales to get a fair hearing, but I quickly learnt otherwise.”

  1. [33]
    The reasons published by Parker J recite that, on 26 April 2020, during the hearing of the defendants’ application in the NSW proceeding, Mr Jorgensen applied to have his Honour recuse himself.[12]  Mr Jorgensen relied on “assertions as to factual matters which were not otherwise established by proper evidence.”  Parker J “receive[d] such statements only as evidence of what had been said by [Mr Jorgensen], and not as evidence of the underlying facts.”[13]
  2. [34]
    His Honour explained:

“[T]here was no substance to the assertion of apprehended bias.  The defendants’ applications had been allocated to me for determination and I considered that the JRL[14] principle meant that I was obliged to undertake the hearing irrespective of any personal preference on my part.  I therefore refused the recusal application.”

  1. [35]
    Mr Jorgensen did not appeal any of the orders made by Parker J on 20 May 2021.  Instead, as noted above, he took no further step in the NSW proceeding.  In effect, he abandoned it.  It remains stayed until Mr Jorgensen complies with the conditions in the order made by the Court.
  2. [36]
    Mr Jorgensen’s allegations of bias are scant and erratic.  In his submissions in this application, he did not rely on the allegations about apprehended bias that he put to Parker J in the NSW proceeding.  His new allegations about actual bias were based on his recollection of exchanges with Parker J during the hearing of the defendants’ applications in the NSW proceeding.  He did not tender a transcript of the hearing.  His recollection varied each time he recounted what he said occurred.  In the circumstances, his evidence has little weight.  If Mr Jorgensen could show relevant bias by Parker J, he could pursue a remedy in the NSW proceeding.  He has not done so. 
  3. [37]
    Mr Jorgensen’s allegations of actual bias by Parker J are not a proper justification for FFBP maintaining multiple proceedings against the defendants.

Burden of the costs and stay orders in the NSW proceedings

  1. [38]
    Mr Jorgensen submitted that the costs and stay orders of Parker J would prevent him from progressing his claim, telling this Court: “Yeah.  I think they’re chasing $200,000.”
  2. [39]
    A similar submission is made at [4] of Mr Jorgensen’s 4 October 2023 affidavit:

“It is ‘a bit rich’ when a Defendant runs an illicit business like described in [2] above and effectively burns your uninsured house down, which sends you broke, then demands you must put up $200,000 in Security for Costs, before you can sue the criminal.  That cannot be the case in any country in the world.”

  1. [40]
    Mr Jorgensen’s submission about $200,000 may be about the total costs sought by all the defendant parties in the NSW proceeding.  It is not the amount Parker J ordered FFBP to pay to Daraleigh to end the stay of FFBP’s claim against Daraleigh. 
  2. [41]
    I have considered whether the order of Parker J, which stayed the NSW proceeding against Daraleigh until FFBP pays $30,000 to Daraleigh on account of costs, might provide a justification for maintaining multiple proceedings. 
  3. [42]
    In the published reasons, Parker J noted “it emerged” in November 2020 that FFBP had been deregistered as a company.  Its registration was not reinstated until about February 2021.  In this context, Mr Jorgensen foreshadowed he “would be joined to the proceedings as a substitute plaintiff, or as a second plaintiff, so he could conduct them in his own name.”  At that time, Mr Jorgensen was resident in Bali, Indonesia.  Robb J made orders by consent providing time for filing an application to join or substitute Mr Jorgensen as plaintiff and to amend the statement of claim.  No such applications were filed.[15]  This delayed the hearing of the defendants’ applications in the NSW proceeding. 
  4. [43]
    The order of Parker J does not prevent FFBP (and Mr Jorgenson if he is a co-trustee) from pursuing the claim in the NSW proceeding.  Putting aside any misapprehension about quantum, the order stays only the claim against Daraleigh.  The order was made in circumstances where FFBP had failed to plead that Daraleigh owed any duty of care to FFBP in respect of Select Carbon’s activities, or that Daraleigh could be in breach of its obligations under the lease because of the Select Carbon companies’ activities.  As Parker J put it:
  1. “[97]
    … [The statement of claim] assumes the existence of a duty on its part to take reasonable care to prevent the Select Carbon companies from causing damage to their co-lessee, [FFP]. Whether such a duty of care would arise independently of the lease could be controversial; on any view it would be necessary to plead in more detail what the lessor allegedly knew about the risks associated with the Select Carbon companies’ operations, and the means of control, if any, the lessor had over those operations. Again, these are material facts which are absent from the statement of claim.
  2. [98]
    For completeness, I point out that there is no properly pleaded basis for the claim for damages against Daraleigh for breach of the lease.  Any such claim would depend, in some way, on the terms of the lease. The statement of claim does plead that Daraleigh covenanted not to derogate from its grant, but it is not easy to see how the activity of another tenant could be seen as a derogation from the grant by Daraleigh. Certainly that is not what is pleaded by way of breach.”
  1. [44]
    FFBP did not respond to these pleading issues by proposing a further amended statement of claim.  The consent orders made in December 2020 allowed FFBP to amend.  It did not appeal the orders staying its claim against Daraleigh.
  2. [45]
    There is no impediment to FFBP continuing to prosecute its claim against Select Carbon in the NSW proceeding. 
  3. [46]
    The fact that Daraleigh sought and obtained the stay order does not assist Mr Jorgensen to show there is a proper justification for FFBP maintaining multiple proceedings against the defendants. 

Defences of the defendants

  1. [47]
    Shortly after the hearing began, Mr Jorgensen asked:

“And is there a time I should have a quick chat to your Honour about procedure here as far as my objection to them, their breaking the rules and not filing a defence and therefore warranting a strike out?”

  1. [48]
    When asked about the fact that both defendants had filed defences, Mr Jorgensen said:

“Yes, your Honour. But they were like blanket defences just with a - basically saying, well, when we get further information, we will do our - we will complete the defences.  But before they lodged their defences, they did ask for information, which was forwarded to them in full.  So it was - they requested it, I forwarded it, and in eight months they still have not completed their defences or tried to modify, or even attempt to file a defence, and under the rules, as I’m informed, that justifies the same strike out basis as they’re using on ourselves in this case.  So whatever they’re arguing here, we would argue the same, that - I think it was under - I forget what the section is.  And that was that they haven’t got a - any cause of action to strike out, other than having a crack at me personally.

So therefore I would be seeking leave some time today for the court’s permission to file a strike out motion almost on the same basis as theirs - not so long, of course - because they have not filed a defence, and from what my limited knowledge of the law is, there is no provision in the Queensland UCPR to put in a holding defence.  They’ve had eight, nine months and they haven’t even attempted to do it, so in my view they’re just trying to take advantage of my ignorance as a self-represented litigant.”

  1. [49]
    As there seemed to be no reason that Mr Jorgensen would require leave, I permitted Mr Jorgensen to make any submissions that he wished to make about the defendants’ application and their defences when he made his oral submissions to the Court.  On a few occasions in those submissions, Mr Jorgensen referred to his allegation that the defendants had not filed defences.  He did not develop the submission in any further detail. 
  2. [50]
    I have considered Mr Jorgensen’s complaint, to the limited extent it was articulated, about the state of the defendants’ defences.  As best I could understand his criticism, it was that he had responded to the defendants’ respective complaints about inadequacies in the statement of claim, but neither applicant had filed or served an amended defence. 
  3. [51]
    The existing defences demonstrate that the essential elements of the plaintiffs’ causes of action are in issue in the Queensland proceeding.  Given the defendants’ decision to seek the present relief against the plaintiffs, the defendants’ respective decisions not to amend their existing defences seems logical and reasonable. 
  4. [52]
    I reject Mr Jorgensen’s submission that the state of the defences is a reason to refuse to consider whether the orders the defendants seek should be granted.  Nor does it provide a proper justification for FFBP maintaining multiple proceedings against the defendants.

Conclusion on the strike out applications

  1. [53]
    Mr Jorgensen is not a party to the NSW proceeding, but he is a party to the Queensland proceeding.  Likely, this is because he does not contend he was a trustee of the FFBUT when the NSW proceeding was commenced.  He contends he became a trustee before the Queensland proceeding was commenced.  In any event, where the Court’s processes are being abused, “the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.”[16]  The actions of FFBP in each of the Queensland and the NSW proceedings are controlled by Mr Jorgensen, who is the director of FFBP, says he is a trustee of the FFBUT, and is the person who has sought leave to appear for FFBP in both proceedings.
  2. [54]
    Mr Jorgensen has offered several explanations for commencing the Queensland proceeding.  None provides a proper justification for the maintenance of multiple proceedings against the defendants.  As I understood his oral submissions, Mr Jorgensen said he did not want to have two separate proceedings.  He wanted to end the NSW proceeding and pursue the Queensland proceeding.  He had not taken the steps necessary to bring about that result.  He gave no indication that he was, even now, unwilling to take those steps. 
  3. [55]
    In the absence of proper justification for the Queensland proceeding, and in circumstances where the NSW proceeding remains on foot, the Queensland proceeding is an abuse of process.  It should be struck out. 
  4. [56]
    As the defendants submit, the Queensland proceeding also has the effect of avoiding the effect of the costs order made in the NSW proceeding.  So, comity might be another reason to grant the defendants relief. 
  5. [57]
    An analogous consideration led Sofronoff P to uphold a decision of Henry J to permanently stay another proceeding instituted by Mr Jorgensen as an abuse of process.[17]  As his Honour noted:

“The current proceedings were calculated to evade the effect of the order 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.”

  1. [58]
    It is “a serious thing to keep a person out of the courts”, but it is sufficiently clear in this case that, having regard to the fact that “the resources of the court are not limitless and must be deployed responsibly”, the plaintiffs ought to be restrained from abusing those resources.[18]

Vexatious proceedings application

  1. [59]
    The defendants also seek a vexatious proceedings order under s 6(2) of the Act restraining Mr Jorgensen from instituting similar proceedings in the future, or causing to them to be instituted, without the leave of the Court.  The defendants contend that Mr Jorgensen is “a person who has frequently instituted or conducted vexatious proceedings in Australia”.[19]
  2. [60]
    Under s 5 of the Act, only certain persons can apply for vexatious proceedings orders.  The defendants rely on s 5(1)(d) which provides for “person[s] against whom another person has instituted or conducted a vexatious proceeding”.  A person applying under this subsection requires the leave of the Court to make the application.[20]
  3. [61]
    If the defendants are entitled to apply for a vexatious proceedings order, the Court may only make an order in one of the circumstances recited in s 6(1).  The defendants rely on s 6(1)(a), which provides for when the Court is satisfied that the plaintiff is “a person who has frequently instituted or conducted vexatious proceedings in Australia”.
  4. [62]
    So, two further questions must be answered:
    1. First, are the defendants persons against whom another person has instituted or conducted a vexatious proceeding? and
    2. Second, is Mr Jorgensen a person who has frequently instituted or conducted vexatious proceedings in Australia?
  5. [63]
    If these questions are answered affirmatively, then the Court can consider whether a vexatious proceedings order should be made.

Are the defendants “person[s] against whom another person has instituted or conducted a vexatious proceeding”?

  1. [64]
    The defendants contend that the Queensland proceeding is “vexatious” within the meaning of the Act.  The Act defines “vexatious proceeding” as follows:

“vexatious proceeding includes—

  1.  a proceeding that is an abuse of the process of a court or tribunal; and
  1.  a proceeding instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
  1.  a proceeding instituted or pursued without reasonable ground; and
  1.  a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”
  1. [65]
    Ms McNeil for the defendants submitted that the repeated use of the word “and” in the definition indicates that all four paragraphs of the definition must be satisfied for a proceeding to be “vexatious” within the meaning in the Act.  I do not read the definition that way. 
  2. [66]
    The word “includes” does not limit the defined term to a proceeding in any or all of the paragraphs.  The use of “includes” qualifies the repeated conjunction “and” such that each of the paragraphs (a) to (d) serves as a definition of a vexatious proceeding.
  3. [67]
    For the reasons set out above, the Queensland proceeding is an abuse of process.  It follows that the Queensland proceeding is a vexatious proceeding, within the meaning in paragraph (a) of the definition. 
  4. [68]
    FFBP had initiated the NSW proceeding about two and half years after the February 2017 incident.  As Parker J recounts, the hearing of the defendants’ applications in the NSW proceeding were delayed over 18 months (between 11 October 2019 and 26 April 2021) by changes in the representation of FFBP and adjournments sought by Mr Jorgensen.  There were three occasions on which Robb J made directions or scheduling orders for the hearing of the application.  The hearing before Parker J occurred over four separate days.[21]  The orders were made and the reasons published very promptly, within three days.  FFBP and Mr Jorgensen initiated the Queensland proceeding about a year and eight months after Parker J stayed the NSW proceeding against Daraleigh until FFBP paid Daraleigh the fixed amount for its costs, about three and a half years after FFBP started the NSW proceeding, and about six years after the February 2017 incident. 
  5. [69]
    I am satisfied the defendants were harassed and annoyed by the conduct of FFBP and Mr Jorgensen in commencing the Queensland proceeding.  By their conduct, Mr Jorgensen and FFBP have caused the defendants to prepare, file, and serve defences to allegations that have been struck out in the NSW proceeding, and to make another application to strike them out.  They have subjected the defendants to essentially the same claims in a second forum when, in the case of Daraleigh, the condition for FFBP continuing with the claims has not been met.  Mr Jorgensen and FFBP have delayed the resolution of the real matters in issue.
  6. [70]
    So, the Queensland proceeding is also a proceeding initiated to harass or annoy the defendants and one conducted in a way so as to harass or annoy the defendants.  It is a vexatious proceeding within the meaning in each of paragraphs (b) and (d) of the definition in the Act.   
  7. [71]
    The plaintiffs’ claims against the defendants in the Queensland proceeding have many of the same defects identified by Parker J in respect of the NSW proceeding.  FFBP has not remedied the defects in its statement of claim struck out by Parker J, despite obtaining leave to do so.  It is possible the claims (or some of them) could be made good if the plaintiffs were able to plead and prove some additional matters.  The absence of such facts from the statement of claim, notwithstanding the decision of Parker J, and the failure of FFBP to remedy the defects by a new pleading in the NSW proceeding, lead me to conclude that FFBP and Mr Jorgensen would fail if they were to pursue the Queensland proceeding to trial and prove only the matters alleged in their statement of claim.  This makes good the defendants’ contention that the Queensland proceeding has been instituted or pursued without reasonable grounds.  It is also a vexatious proceeding within the meaning in paragraph (c) of the definition in the Act.
  8. [72]
    In the circumstances, the defendants are persons vexed by the proceeding Mr Jorgensen has commenced against them.  They should be granted leave under s 5(2) of the Act to make their application for a vexatious proceedings order against Mr Jorgensen.

Is Mr Jorgensen “a person who has frequently instituted or conducted vexatious proceedings in Australia”?

  1. [73]
    In 2016, Daubney J made an order restraining Mr Jorgensen from instituting certain proceedings.  His Honour explicitly made a finding that Mr Jorgensen “[was] a person who has frequently conducted vexatious proceedings in Australia.”[22] 
  2. [74]
    On 5 September 2016, Daubney J published reasons for the decision.  Since then, Mr Jorgensen has been involved in other litigation.  Not all of it could be described as vexatious.  Two proceedings are of relevance to the present inquiry.
  3. [75]
    In Jorgensen v Shorten (No 2),[23] Stevenson J summarily dismissed proceedings instituted by Mr Jorgensen in the Supreme Court of New South Wales.  His Honour found that:
    1. “[t]he statement of claim [did] not disclose a recognisable cause of action against any of the defendants”;[24]
    2. “[the statement of claim was] so imprecise in its identification of material factual allegations as to deprive the defendants of adequate and proper notice of the claim they must meet”;[25]
    3. “[the statement of claim was] in a form that [was] vague, confusing and embarrassing”;[26]
    4. “[the statement of claim was] so seriously deficient that it [could not] be allowed to go forward and [had to] be struck out”;[27] and
    5. “there [were] further, fundamental, problems with the case sought to be propounded” such that “there [could] be no point permitting Mr Jorgensen an opportunity to re-plead.”[28] 
  4. [76]
    Stevenson J found that Mr Jorgensen’s “real purpose in bringing these proceedings” was to obtain access to a report held by ASIC relating to a complaint made to it by Mr Jorgensen,[29] and that Mr Jorgensen was seeking “to re-agitate … claims already made in other proceedings which were, in effect, abandoned.”[30]  The other proceedings to which his Honour referred were instituted in the Supreme Court of Victoria.  There, the pleadings were struck out and no application to replead was made, leading to the proceedings being dismissed for want of prosecution.[31]
  5. [77]
    In Jorgensen v Jorgensen, cited above at [57], the Court of Appeal upheld a decision permanently staying a proceeding instituted by Mr Jorgensen in this Court, and restraining him from instituting proceedings related to a trust.  The Court found the proceedings “were calculated to evade the effect of [an] order that … the Alan Jorgensen interests provide security for costs before proceeding with the claims” and described such proceedings as “textbook examples of abuse of the Court’s process.” 
  6. [78]
    In response to Mr Jorgensen’s submission that the security for costs order “would prevent a meritorious claim … from proceeding”, the Court of Appeal noted:

“[T]hat 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.” 

  1. [79]
    I am satisfied Mr Jorgensen is a person who has frequently instituted and conducted vexatious proceedings in Australia.  He has continued to institute vexatious proceedings, including the proceeding in the Supreme Court of New South Wales the subject of Jorgensen v Shorten (No 2),[32] the proceeding in this Court the subject of Jorgensen v Jorgensen,[33] and the Queensland proceeding instituted in February 2023. 

Conclusion on the vexatious proceedings order application

  1. [80]
    I am satisfied that the Court should make orders under s 6(2) of the Act permanently staying this proceeding and restraining Mr Jorgensen from instituting any other proceeding in Queensland which relates to the same subject matter.  The effect of such an order is that Mr Jorgensen may not institute such a proceeding without the leave of the Court under s 13 of the Act.[34] 

Security for costs

  1. [81]
    In the circumstances, it is not necessary to consider the alternative orders for security for costs sought by the defendants.

Costs

  1. [82]
    As the Queensland proceeding is an abuse of process, the plaintiffs should pay the defendants’ costs of the Queensland proceeding on the indemnity basis.
  2. [83]
    It may be convenient for the defendants (or for one of them) to assess and seek to recover their costs of the whole proceeding from Mr Jorgensen, rather than separately assess and seek to recover their costs of their application(s) from both plaintiffs.  For this reason, although both plaintiffs are to be ordered to pay the defendants’ costs of the applications on the indemnity basis, it is appropriate to make an order that Mr Jorgensen pay the defendants’ costs of the whole of the Queensland proceeding, which include the costs of the defendants’ applications, on the indemnity basis.

Final disposition

  1. [84]
    The order of the Court should be as follows:
  1. Pursuant to r 171(2) of the UCPR:
    1. a.
      The plaintiffs’ statement of claim filed on 3 February 2023 is struck out; and
    2. b.
      The plaintiffs pay the defendants’ costs of the applications filed on 18 August 2023 calculated on the indemnity basis.
  2. Pursuant to s 5(2) of the Act, the defendants have leave to apply to the Court for a vexatious proceedings order in relation to Mr Jorgensen.
  3. Pursuant to s 6(2) of the Act:
    1. a.
      All of proceeding BS 1335/23, instituted by Mr Jorgensen, is permanently stayed;
    2. b.
      Mr Jorgensen is prohibited from instituting proceedings in Queensland with respect to, connected with, or arising out of:
    3. i.
      the dispute between the plaintiffs and the defendants the subject of proceeding BS 1335/23 (the Dispute), or
    4. ii.
      the FFBUT,
    5. without the prior leave of the Court;
    6. c.
      Mr Jorgensen is prohibited from causing any proceeding to be instituted in Queensland with respect to, connected with, or arising out of the Dispute or the FFBUT, without the prior leave of the Court; and
    7. d.
      Mr Jorgensen pay the defendants’ costs of proceeding BS 1335/23 to be calculated on the indemnity basis.

Footnotes

[1] Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd [2021] NSWSC 563.

[2] Quoting Jorgensen v Jorgensen [2017] QCA 110 (Sofronoff P).

[3] (2006) 226 CLR 256, [9].

[4] (2011) 244 CLR 427.

[5] [90] (Gummow ACJ, Hayne, Crennan and Bell JJ).

[6] (2011) 244 CLR 427, [110] (Heydon J).

[7] [2022] QSC 70, [7].

[8] Emphasis in original.

[9] Uniform Civil Procedure Rules 2005 (NSW) r 12.1(1).

[10] A copy of this affidavit was marked as an exhibit on the basis that Mr Jorgensen undertook to file the original with the registry.  At the time of publishing these reasons, this has not occurred.

[11] Daubney J made an order in 2016 to the effect that Mr Jorgensen was a vexatious litigant: Jorgensen v Jorgensen [2016] QSC 193.

[12] [2021] NSWSC 563, [42].

[13] Ibid, [59].

[14] Re JRL; Ex parte CJL (1986) 161 CLR at 352, 350 (Mason J).

[15] [2021] NSWSC 563, [18]-[23].

[16] UBS AG v Tyne (2018) 265 CLR 77, 96 [45] (Kiefel CJ, Bell and Keane JJ).

[17] Jorgensen v Jorgensen [2017] QCA 110.

[18] Hambleton v Labaj [2011] QCA 17, [71] (White JA).

[19] Vexatious Proceedings Act 2005 (Qld) s 6(1)(a).

[20] Ibid s 5(2).

[21] 26 and 27 April and 3 and 17 May 2021.

[22] Jorgensen v Jorgensen [2016] QSC 193, [71].

[23] [2016] NSWSC 1761.

[24] Ibid, [48].

[25] Ibid, [49].

[26] Ibid, [50].

[27] Ibid, [51].

[28] Ibid, [52]-[53].

[29] Ibid, [68], [9].

[30] Ibid, [67].

[31] Ibid, [66].

[32] [2016] NSWSC 1761.

[33] [2017] QCA 110.

[34] See s 10(1)(a).

Close

Editorial Notes

  • Published Case Name:

    Farmers Fruit Box & Plastics Pty Ltd & Anor v Select Carbon Pty Ltd & Anor

  • Shortened Case Name:

    Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd

  • MNC:

    [2023] QSC 241

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    31 Oct 2023

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
2 citations
Jump To
Cite 1 - (2006) 226 CLR 256
Cite 2 - (2006) 226 CLR 256
Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27
1 citation
Jump To
Cite 1 - [2006] HCA 27
Farmers Fruit Box & Plastics Pty Ltd v Select Carbon Pty Ltd [2021] NSWSC 563
3 citations
Jump To
Cite 1 - [2021] NSWSC 563
Cite 2 - [2021] NSWSC 563
Cite 3 - [2021] NSWSC 563
Hambleton v Labaj [2011] QCA 17
2 citations
Jump To
Cite 1 - [2011] QCA 17
Cite 2 - [2011] QCA 17
Jorgensen v Jorgensen [2016] QSC 193
3 citations
Jump To
Cite 1 - [2016] QSC 193
Cite 2 - [2016] QSC 193
Cite 3 - [2016] QSC 193
Jorgensen v Jorgensen [2017] QCA 110
4 citations
Jump To
Cite 1 - [2017] QCA 110
Cite 2 - [2017] QCA 110
Cite 3 - [2017] QCA 110
Cite 4 - [2017] QCA 110
Jorgensen v Shorten (No 2) [2016] NSWSC 1761
1 citation
Jump To
Cite 1 - [2016] NSWSC 1761
Lewis v Minister for Police and Corrective Services and Minister for Fire and Emergency Services [2022] QSC 70
2 citations
Jump To
Cite 1 - [2022] QSC 70
Cite 2 - [2022] QSC 70
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
1 citation
Jump To
Cite 1 - [2011] HCA 48
Michael Wilson & Partners Pty Ltd v Nicholls (2011) 244 CLR 427
3 citations
Jump To
Cite 1 - (2011) 244 CLR 427
Cite 2 - (2011) 244 CLR 427
Cite 3 - (2011) 244 CLR 427
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32
1 citation
Jump To
Cite 1 - [1988] HCA 32
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
1 citation
Jump To
Cite 1 - (1988) 165 CLR 197
UBS AG v Tyne [2018] HCA 45
1 citation
Jump To
Cite 1 - [2018] HCA 45
UBS AG v Tyne (2018) 265 CLR 77
2 citations
Jump To
Cite 1 - (2018) 265 CLR 77
Cite 2 - (2018) 265 CLR 77

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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