Supreme Court New South Wales Medium Neutral Citation: Tjiong v Tjiong: 2019/278508 [2021] NSWSC 1389 Hearing dates: 13 August, 21 September, 10 November, 1 December 2020; 7 June, 5 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Equity Before: Parker J Decision: See [265]-[266] Catchwords: CIVIL PROCEDURE – standing – application to set aside previous judgment of the court – plaintiff bankrupted – whether application "property" which vested in trustee – whether proceedings automatically stayed – exception for "personal injury or wrong" done to bankrupt CIVIL PROCEDURE – res judicata – application to set aside previous judgment of the court – previous application dismissed by consent – whether dismissal final and "on the merits" – abuse of process CIVIL PROCEDURE – pleadings – application to set aside previous judgment of the court – whether statement of claim viable – defendants' responsibility for alleged fraud – materiality of alleged fraud – where previous judgment of the court had been appealed Legislation Cited: Bankruptcy Act 1924 (Cth), s 63 Bankruptcy Act 1966 (Cth), ss 5, 58, 60, 116 Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 64, 91, 98 District Court Act 1912 (NSW) District Court Rules 1973 (NSW), Pt 31, r 12A Passenger Transport Act 1990 (NSW), s 11 Supreme Court of Judicature Act 1873 (Imp) (36 & 37 Vict c 66) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 36.15, 36.16 Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 6, 8 Cases Cited: Attorney General v Wilson [2010] NSWSC 1008 Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Black v Lipovac [1998] FCA 699 Boaler v Power [1910] 2 KB 229 Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502 Chang v Tjiong [2009] NSWSC 122 Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 Coles v Burke (1987) 10 NSWLR 429 Cox v Journeaux (1935) 52 CLR 713 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45 Faulkner v Bluett (1981) 52 FLR 115 Fisher v Transport for NSW [2016] NSWSC 1888 Fletcher v Besser [2010] NSWCA 30 Flower v Lloyd (1877) 6 Ch D 297 Flower v Lloyd (1879) 10 Ch D 327 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Gray v Furber (Supreme Court (NSW), 23 May 1995, unrep) Hamilton v Al Fayed (No 4) [2000] EWCA Civ 2012 Hip Foong Hong v H Neotia & Co [1918] AC 888 Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88 J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31 Jackson v Goldsmith (1950) 81 CLR 446 Jonesco v Beard [1930] AC 298 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 Kuwait Airways Corp v Iraqi Airways Co [2003] EWHC 31 (Comm) McDonald v McDonald (1965) 113 CLR 529 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 Muir v Angeles [2020] NSWSC 1056 Nominal Defendant v Manning (2000) 50 NSWLR 139 Owens Bank Ltd v Bracco [1992] 2 AC 443 Re South American and Mexican Co, ex p Bank of England [1895] 1 Ch 37 Redgrave v Hurd (1882) 20 Ch D 1 Reichel v Magrath (1889) 14 App Cas 665 Rogers v Legal Services Commission (SA) (1995) 64 SASR 572 Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328 Salekipour v Parmar [2018] 2 WLR 1090 Samootlin v Shea [2010] NSWCA 371 Sheehan v Brett-Young (No 3) [2016] VSC 39 Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Tjiong v Tjiong [2010] NSWSC 578 Tjiong v Tjiong [2012] NSWCA 201 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 Unsworth v Commissioner for Railways (1958) 101 CLR 73 Texts Cited: Grant, T, and D Mumford, Civil Fraud: Law, Practice & Procedure (2018, Sweet & Maxwell) Handley, K R, Spencer, Bower and Handley: Res Judicata (5th ed, 2019, LexisNexis Butterworths) Sheridan, L A, "Fraud and Surprise in Legal Proceedings" (1955) 18(5) Modern Law Review 441 Category: Procedural rulings Parties: Motion filed 10 March 2020 Katrina May Lan Tjiong (First Applicant/First Defendant) Lindsay Kuang Djin Tjiong (Second Applicant/Second Defendant) Richard Tat Tjhien Tjiong (Respondent/Plaintiff) Motion filed 31 July 2020 Richard Tat Tjhien Tjiong (Applicant/Plaintiff) Katrina May Lan Tjiong (First Respondent/First Defendant) Lindsay Kuang Djin Tjiong (Second Respondent/Second Defendant) Representation: Motion filed 10 March 2020 Appearances: M Evans (Counsel) (Applicants/Defendants) R Tjiong (In person) (Respondent/Plaintiff) Solicitors: O'Brien Lawyers (Applicants/Defendants) Motion filed 31 July 2020 Appearances: R Tjiong (In person) (Applicant/Plaintiff) M Evans (Counsel) (Respondents/Defendants) Solicitors: O'Brien Lawyers (Respondents/Defendants) File Number(s): 2019/278508 Publication restriction: Nil Judgment 1. The plaintiff in these proceedings has brought an application to set aside orders made by the Court in earlier proceedings. The defendants apply to have the plaintiff's application summarily dismissed. 2. The defendants, Katrina Tjiong and Lindsay Tjiong, are brother and sister. The plaintiff is Dr Richard Tjiong, who is their uncle. I will refer to the plaintiff as "Dr Tjiong". For convenience and without disrespect, I will refer to the defendants and other members of the family by their given names. 3. The previous proceedings were commenced in 2005 by Katrina and Lindsay as plaintiffs against Dr Tjiong as defendant. Those proceedings concerned the estate of Katrina and Lindsay's father, George Tjiong, who died in 2004. The main claims by Katrina and Lindsay were to recover assets belonging to their father which had been transferred before his death to a discretionary trust controlled by Dr Tjiong, and to obtain control of their father's estate from Dr Tjiong, who had been appointed as executor. 4. Katrina and Lindsay substantially succeeded in their claims. Consent orders were made in the course of the trial giving them control of the assets and the estate. Palmer J delivered judgment in favour of Katrina and Lindsay on the remaining issues, including costs, on 4 June 2010: Tjiong v Tjiong [2010] NSWSC 578. His Honour made orders giving effect to his judgment on 7 July 2010. Dr Tjiong appealed, but the appeal was dismissed by the Court of Appeal on 29 June 2012: Tjiong v Tjiong [2012] NSWCA 201. 5. In the present proceedings Dr Tjiong is seeking to set aside the judgments of Palmer J and the Court of Appeal. He alleges that the judgments were tainted by fraud on the part of Katrina and Lindsay. He seeks to invoke the Court's equitable jurisdiction to set aside judgments that have been procured by fraud. He also relies upon the Court's power to set aside its own judgments under r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). 6. The defendants apply for summary dismissal on three grounds. First, that Dr Tjiong lacks standing to maintain the proceedings by virtue of the fact that he is a bankrupt and his entitlement to bring the application has passed to his trustee in bankruptcy. Second, that the proceedings are an attempt to re-litigate matters that were finally determined by the Court in earlier proceedings, and thus, are res judicata. Third, that the statement of claim does not disclose an arguable basis for the application. The defendants also seek an order that Dr Tjiong be restrained from bringing further proceedings against them without the prior leave of the Court. Background and procedural history 1. The proceedings have a complex history. I will begin with a summary of the proceedings before Palmer J, the facts of which were set out in his Honour's judgment at [2]-[26]. 2. Katrina and Lindsay were George's only children. In December 2001 George was seriously ill and on 23 December he executed a will appointing Dr Tjiong as his executor. Under the will, he left the whole of his estate to Katrina and Lindsay in equal shares. Shortly afterwards, George suffered a stroke and Dr Tjiong took over the management of his financial affairs. 3. In December 2003 Dr Tjiong made arrangements to set up a discretionary trust called the George Tjiong Family Trust ("the Family Trust"). Dr Tjiong's wife, Kathryn, was the settlor and a company called Maroka Pty Limited ("Maroka") was the trustee. The directors of Maroka were Dr Tjiong, Katrina and Lindsay. The beneficiaries of the Trust were George, Katrina, Lindsay, and four of George's siblings (excluding Dr Tjiong). 4. Pursuant to a power of attorney purportedly granted in 1996, and with the consent of both Katrina and Lindsay, Dr Tjiong transferred certain assets belonging to George (valued at around $1.3 million) to the Family Trust. Those assets would otherwise have formed part of the estate and would have passed to Katrina and Lindsay under George's will. The assets left in the estate were worth between $700,000 and $1 million. George died shortly afterwards, in January 2004, and probate was granted to Dr Tjiong in March. 5. By April 2004 a dispute had arisen about the management and distribution of funds in the Family Trust. Dr Tjiong believed that his brother, Harry, and his three sisters should receive part of the fund because they had helped care for George during the latter stages of his life. Katrina and Lindsay disputed this and wished to have the trust fund distributed to them alone. 6. On 9 April Dr Tjiong reluctantly gave Katrina and Lindsay each a cheque for $100,000 drawn by Maroka. But five days later he removed Maroka as trustee of the Family Trust and appointed himself as sole trustee. Katrina and Lindsay were then requested to return their cheques. 7. Then, on 21 April, Dr Tjiong claimed to have received correspondence concerning a medical negligence claim that was going to be made against George's estate on behalf of a Mr Kevin Reeves. This was referred to in the proceedings as "the Reeves claim". Dr Tjiong said that no distribution could be made to Katrina or Lindsay until that claim had been resolved. 8. Katrina and Lindsay commenced proceedings against Dr Tjiong in February 2005. They contended that their consent to the establishment of the Family Trust and the transfer to it of George's assets had been procured by undue influence, unconscionable conduct and fraud on the part of Dr Tjiong. They also claimed that there was never any genuine medical negligence claim against George's estate and that it had been fabricated by Dr Tjiong. It was not suggested that Dr Tjiong had benefited personally from his conduct. Rather, he was said to have acted so as to maintain control over his brother's affairs as an end in itself, and so as to benefit other members of the family. 9. Katrina and Lindsay sought an order setting aside the Family Trust deed so that the assets of the fund could revert to George's estate and be distributed in accordance with his will. Alternatively, they sought an order removing Dr Tjiong as administrator of the estate and trustee of the Trust, and orders requiring him to make restitution to the estate (or Trust) for the costs of establishing the Trust and for the legal costs incurred in dealing with the Reeves claim. 10. There was also a claim for repayment to the Family Trust for a sum of around $135,000 that Dr Tjiong had paid out of the Trust to another discretionary trust called the Oninama Charitable Foundation in February 2005. The Foundation's beneficiaries were Dr Tjiong's mother and grandchildren. Neither the Foundation nor Dr Tjiong's mother or grandchildren were beneficiaries of the Family Trust. 11. The hearing before Palmer J began on 1 June 2009. On 16 June, during his cross-examination, Dr Tjiong became unwell and was hospitalised. He was unable to continue and the proceedings were adjourned to December. 12. Earlier in the hearing, Dr Tjiong had informed the Court that in defending the proceedings he did not wish to retain control of the assets for himself and was willing to resign the trusteeship of the Family Trust. On 16 June, the same day Dr Tjiong was taken ill, consent orders were made under which Katrina replaced Dr Tjiong as trustee of the Trust and of the Oninama Charitable Foundation. The grant of probate of George's will to Dr Tjiong was also revoked and Katrina was appointed administrator of the estate. Katrina and Lindsay gave undertakings to the Court that, pending an order for costs in the proceedings, they would not dispose of the assets of the Family Trust or of George's estate. 13. For practical purposes, the consent orders made it unnecessary for Katrina and Lindsay to pursue their claim to rescind the December 2003 transactions any further. When the hearing resumed the remaining claims by Katrina and Lindsay were for: 1. reimbursement of the estate (or Family Trust) for the costs incurred by the Family Trust in relation to the allegedly fabricated Reeves claim; 2. delivery up of any assets or records of the estate or the Family Trust still held by Dr Tjiong; 3. a declaration that the $135,000 paid to the Oninama Charitable Foundation belonged to the Family Trust; and 4. an indemnity costs order against Dr Tjiong. 1. Despite the consent orders, the propriety of Dr Tjiong's conduct leading up to the December 2003 transactions remained a significant issue. Counsel for Katrina and Lindsay sought to establish that Dr Tjiong had behaved fraudulently, presumably because this would assist in establishing that he had fabricated the Reeves claim, which remained in issue. The fraud allegation was also a major factor in the claim for indemnity costs. 2. The issue in turn spawned further allegations against Dr Tjiong concerning the evidence which he gave in the proceedings, and in particular the fabrication of false documents. Two allegations in particular play an important role in the present proceedings. 3. The first arose out of Dr Tjiong's evidence that he had flown to Melbourne to see George in hospital in 1996. Dr Tjiong was a pilot, having obtained an unrestricted private pilot's licence in January 1978. He purchased a private plane in 1979. His evidence before Palmer J was that on 26 March 1996, he flew from Taree to Sydney, then to Melbourne, to visit his brother in hospital. He claimed that during the visit, he was told by George that George wanted to give him a power of attorney so that he could look after George's affairs. 4. During the hearing, the solicitors acting for Katrina and Lindsay served a notice to produce seeking Dr Tjiong's pilot's logbooks. There was a delay in production whilst Dr Tjiong made the necessary searches. When the hearing recommenced in December 2009, Dr Tjiong produced two logbooks, the second of which contained entries supporting his evidence that he flew to Melbourne on 26 March 1996. Counsel for Katrina and Lindsay submitted, by reference to the nursing notes from the hospital, that no visit had taken place on 26 March 1996 and Dr Tjiong had fabricated the logbook. 5. The second allegation concerned a file note dated 22 December 2001 which purported to record George's wishes as to the distribution of his estate ("the 2001 File Note"). According to Dr Tjiong, he had discussions with George between 20 and 22 December 2001 in which George expressed concerns about leaving his estate to Katrina and Lindsay without the benefit of Dr Tjiong's assistance. The File Note purported to record that George wanted his children to have ninety per cent of his estate, and for the remaining ten per cent to be distributed amongst his siblings at Dr Tjiong's discretion. 6. Counsel for Katrina and Lindsay drew attention in particular to the fact that George's will, which gave Katrina and Lindsay the whole of George's estate, was executed by George only one day after these discussions had taken place. Counsel submitted that Dr Tjiong's evidence was false and he had fabricated the File Note after the event in an attempt to justify his actions. 7. Palmer J delivered his judgment on 4 June 2010. He found that Katrina and Lindsay's consent to the establishment of the Family Trust had been procured by Dr Tjiong's fraud, that Dr Tjiong had fabricated the Reeves claim, and that the payment to the Oninama Charitable Foundation had been made in breach of trust. 8. In the course of his reasoning, his Honour made a series of adverse findings as to Dr Tjiong's credibility. In particular, he found that Dr Tjiong had indeed fabricated the March 1996 entry in his pilot's logbook. His Honour also refused to accept that the 2001 File Note was a genuine contemporaneous record of George's wishes, concluding (at [130]): While George may have asked Richard to advise and guide Katrina and Lindsay after his death, I am satisfied that he did not express the wish that Richard control their inheritance in the manner recorded in the file note. I conclude that the file note dated 22 December 2001 was fabricated by Richard long after the date that it bears. 1. Palmer J adjourned the proceedings to allow the plaintiffs to bring in a minute of order reflecting the judgment. On 7 July his Honour made orders, which appear to have reflected what the plaintiffs sought. 2. The 7 July orders included an order that Dr Tjiong deliver up any assets, records and documents of George, and any assets, records and documents held by Dr Tjiong in his capacity as executor of the estate or trustee of the Family Trust (orders 3 and 4). His Honour also ordered Dr Tjiong to make restitution for any costs incurred by the estate or the Trust in connection with the Reeves claim (order 5), and declared that the moneys transferred to the Oninama Charitable Foundation were held on constructive trust for the beneficiaries of the Family Trust (order 7). Dr Tjiong was also, subject to a few exceptions, ordered to pay the costs of the proceedings (and the fabricated medical negligence proceedings) on an indemnity basis (orders 8 and 9). 3. In addition, his Honour made a series of declarations focussing on Dr Tjiong's conduct. Those declarations were: that the consent of Katrina and Lindsay to the establishment of the Family Trust had been procured by undue influence, unconscionable conduct and fraud (order 1); that Dr Tjiong had breached his duties as executor and trustee in a manner which warranted his removal from those offices (order 2); and that the $135,000 distribution to the Oninama Charitable Fund had been a breach of trust (order 6). I set out the terms of these declarations, to which I will refer as the "conduct declarations", in more detail later in this judgment (see [119] below). 4. Dr Tjiong appealed from Palmer J's decision. His counsel challenged the adverse findings made by Palmer J. As part of this, counsel sought leave to adduce further evidence which was said to be relevant to whether Dr Tjiong had been in Melbourne on 26 March 1996. 5. The appeal was unanimously dismissed. Meagher JA, with whom Whealy and Barrett JJA agreed, was not satisfied that Palmer J's findings involved any error. The Court also refused leave to adduce further evidence, concluding that the main evidence to be relied on had been available at the hearing before Palmer J and would not have compelled a different outcome. Dr Tjiong was ordered to pay the costs of the appeal. 6. In late December 2015 Katrina and Lindsay filed an application for an assessment of the costs of the various proceedings. As a result of this process, Dr Tjiong was liable to pay a total of $990,000. A judgment to that effect was entered by the Court on 2 August 2017. 7. In February 2019 a bankruptcy notice was served on Dr Tjiong in the amount of $1.1 million in relation to the costs awarded against him. Dr Tjiong then filed an application in the Federal Court seeking orders extending the time for compliance with the notice. 8. Then, on 25 February, Dr Tjiong filed fresh proceedings in this Court, by statement of claim, seeking orders pursuant to UCPR, r 36.15(1) that the judgments and orders of Palmer J and the Court of Appeal be set aside. The gravamen of Dr Tjiong's challenge was that each of the findings by Palmer J had been procured by Katrina and Lindsay's fraud. He contended that Katrina and Lindsay had deceived the Court and had effectively perjured themselves by giving false evidence. I will refer to these proceedings as "the first fraud proceedings". 9. On 28 March the solicitors acting for Katrina and Lindsay filed a notice of motion seeking to strike out Dr Tjiong's statement of claim. The motion came before Rein J for hearing. I will describe the course of events in more detail later in this judgment. For present purposes, it is enough to say that on 5 July orders were made by consent for the proceedings to be dismissed with costs. Leave was granted to Katrina and Lindsay to apply for a gross sum costs order. 10. On 8 July Dr Tjiong filed a fresh statement of claim against Katrina and Lindsay. This was followed by an amended statement of claim on 31 July. The new proceedings concerned the Burwood Trust. I will refer to these proceedings as "the Burwood Trust proceedings". 11. The Burwood Trust had previously been the subject of litigation before Palmer J in 2009 and his Honour delivered a judgment in March of that year: Chang v Tjiong [2009] NSWSC 122. It is not necessary for the purposes of this judgment to go into the details of the Burwood Trust proceedings, save to say that the proceedings involved a claim by Dr Tjiong as a potential beneficiary of the Burwood Trust against Katrina in her representative capacity as administrator of George's estate. 12. On 16 July the solicitors acting for Katrina and Lindsay in the first fraud proceedings filed a notice of motion for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) ("CPA"), in accordance with leave granted by Rein J on 5 July. The amount sought was $75,000. The motion was not immediately allocated a hearing date. 13. On 6 September 2019 Dr Tjiong commenced the proceedings with which I am now concerned. I will refer to them as "the second fraud proceedings". An amended statement of claim was filed on 4 October. I will describe the proceedings in more detail below. For present purposes it is enough to say that the statement of claim sought orders setting aside the judgments of Palmer J and the Court of Appeal (but not the earlier consent orders), on the ground that those judgments were procured by fraud on the part of Katrina and Lindsay. 14. On 10 September, four days after he filed his statement of claim in the second fraud proceedings, Dr Tjiong declared himself bankrupt. This brought, or arguably brought, into play the provisions of the Bankruptcy Act 1966 (Cth) ("BA") which restrict litigation involving bankrupts. Katrina and Lindsay sought leave from the Federal Circuit Court, exercising bankruptcy jurisdiction, to apply to this Court to bring the proceedings against them to an end. On 19 December 2019 Judge Street made orders pursuant to BA, s 58(3)(b) granting leave to Katrina and Lindsay: 1. to pursue their application for a gross sum costs order in the first fraud proceedings; 2. to make an application for summary dismissal of the Burwood Trust proceedings (and for a gross sum costs order); and 3. to make an application for summary dismissal of the second fraud proceedings (and for a gross sum costs order). 1. Pursuant to these orders, on 10 March 2020 the solicitors acting for Katrina and Lindsay filed a notice of motion for summary dismissal of the second fraud proceedings. It is that motion which is the subject of the present judgment. Also pursuant to the orders of the Federal Circuit Court, the solicitors acting for Katrina and Lindsay filed a notice of motion seeking an order that the Burwood Trust proceedings be summarily dismissed. All three motions (the gross sum costs motion in the first fraud proceedings, and the summary dismissal motions in the Burwood Trust proceedings and these proceedings) were in due course listed for hearing before me on 13 August 2020. 2. On 31 July, Dr Tjiong filed his own notice of motion seeking leave under CPA, s 64 to file a further amended statement of claim. This was the third proposed version of his pleading. This motion was by arrangement between the parties fixed for hearing alongside the three existing motions. 3. When the proceedings came before me on 13 August, I was able to deal shortly with the gross sum costs motion in the first fraud proceedings and the summary dismissal motion in the Burwood Trust proceedings. I dealt with those motions first. 4. I dismissed the gross sum costs motion in the first fraud proceedings. The costs order in those proceedings had been made by Rein J prior to Dr Tjiong being made bankrupt. That made it a provable debt. I saw no reason why the defendants should not use the ordinary proof of debt procedure to quantify their claim. 5. In the Burwood Trust proceedings, Dr Tjiong had instructed counsel to appear and to seek leave to file a notice of discontinuance. But counsel accepted that the effect of Dr Tjiong's supervening bankruptcy was that any cause of action upon which Dr Tjiong sued had passed to the trustee in bankruptcy. As the trustee had not sought to pursue the claim, I dismissed the proceedings. 6. This left Katrina and Lindsay's motion for summary dismissal of the second fraud proceedings, and Dr Tjiong's cross-motion to amend. Counsel was not instructed to appear for Dr Tjiong. He represented himself, as he has continued to do thereafter. Counsel remained present (and has continued to act) as a McKenzie friend. 7. Counsel for the defendants raised a preliminary issue. Counsel submitted that in the absence of an election by the trustee to pursue the claim, BA, s 60(3) applied and the proceedings should be dismissed. In response, Dr Tjiong relied on s 60(4)(a) which provides that a bankrupt may continue an action commenced before bankruptcy in respect of any personal injury or wrong done to them (see [81] below). Counsel then said that Dr Tjiong's reliance on s 60(4)(a) had caught him by surprise. He indicated that he would need further time in order to research the case law on the issue. 8. Dr Tjiong opposed this. He pointed out that he had raised the issue of s 60(4)(a) at the Federal Circuit Court hearing some six months before. I felt the force of Dr Tjiong's submissions, but nevertheless thought it was necessary to give counsel for the defendants an opportunity to deal fully with the point. I directed that the parties serve written submissions on the issue in due course and adjourned the proceedings for further hearing. 9. The matter returned before me on 21 September. Prior to the hearing, Dr Tjiong had lodged a second further amended statement of claim. This was the fourth proposed version of his pleading. The parties were content for me to deal with both Katrina and Lindsay's application for summary dismissal, and Dr Tjiong's application for leave to file his further pleading, together. 10. By this point, counsel for the defendants had abandoned his contention that BA, s 60 prevented Dr Tjiong from bringing the proceedings. Counsel based his abandonment of the defence on the decision of McCallum J (as her Honour then was) in Fisher v Transport for NSW [2016] NSWSC 1888, which I discuss in further detail below. Counsel instead wished to rely on other grounds to have the claim summarily dismissed. 11. Counsel first referred me to the statement of claim filed in the first fraud proceedings, and the orders made by Rein J dismissing those proceedings on 5 July 2019 (see [145] below). Counsel submitted that the cause of action in those proceedings was substantially the same as the cause of action in these proceedings, and that as a result of Rein J having finally disposed of the matter, Dr Tjiong was prevented from bringing the proceedings by virtue of Anshun estoppel or res judicata. Counsel's second argument was that, in any event, the statement of claim did not disclose a valid basis for Dr Tjiong's application. 12. The hearing on 21 September ran for most of the day. By the end, the parties indicated that more time would be required to consider the points that had been raised and, if necessary, put on further evidence. I directed that any further affidavits and written submissions be filed and served by 6 October, and adjourned the proceedings until 10 November. In the end, the defendants' submissions were filed nine days late. 13. At the hearing on 10 November it became apparent that central to the defendants' argument on the res judicata issue was the statement of claim in the Burwood Trust proceedings. But that document was not in evidence before me. Accordingly, counsel asked for further time in which to adduce it, together with a short affidavit from his instructing solicitor explaining what took place at the hearings before Rein J. 14. Dr Tjiong again opposed any adjournment, but again I considered that the issue should be fully canvassed and acceded to counsel's request for more time. I adjourned the proceedings and directed that any further evidence and written submissions be filed in due course. 15. The matter returned before me on 1 December. At the hearing, Dr Tjiong asked for another opportunity to prepare a further version of his pleading, so as to reflect various points that had been raised during the course of argument. Counsel for the defendants opposed any further adjournment, but I considered that however unfortunate was the delay, it was necessary to allow Dr Tjiong a full opportunity to put his case. 16. I also indicated that I was not convinced by counsel's earlier concession that BA, s 60 did not prevent Dr Tjiong from bringing the claim. By this point, counsel had also conceded that Rein J's dismissal on 5 July 2019 did not follow a determination on the merits, which cast doubt on whether the second fraud proceedings were res judicata. I was not convinced that this concession was necessarily correct either and invited the parties to make further submissions on both issues in due course. 17. This was admittedly an unusual step to take. But I felt it was necessary given the concessions made by counsel related to substantive defences which had, even on a cursory analysis, reasonable prospects of success. Counsel's abandonment of the issues at an interlocutory stage would not have prevented them from being raised at any final hearing of the proceedings, and on that basis I thought it was in the interests of both parties that they be dealt with before further costs were incurred. 18. I directed that the parties agree on a timetable for the provision of Dr Tjiong's updated pleading and any further submissions. On 15 December I made orders that Dr Tjiong lodge and serve a copy of his proposed further amended statement of claim and submissions by 5 February 2021, and that the defendants file and serve submissions in reply by 5 March. 19. On 2 February 2021 I made orders extending the time for which Dr Tjiong was required to file his pleading, and for the filing of further submissions. In accordance with those orders, Dr Tjiong lodged a third further amended statement of claim (the fifth and final version of his pleading) on 19 February. 20. The defendants filed further submissions on 21 April. The next day, counsel for the defendants sent two emails to my Associate attaching further evidence to be relied upon, including parts of the original transcript of proceedings before Palmer J. Dr Tjiong sought an extension of time in which to put on his submissions in reply, and there was no opposition to this by the defendants. 21. On 24 May Dr Tjiong sent an email to my Associate indicating that he had concerns as to whether the additional material sent by counsel on 22 April should be admitted into evidence. On 26 May Dr Tjiong filed further submissions in accordance with the agreed extension, but also sought to include additional evidence of his own. 22. The parties were unable to agree on what further material should be admitted. The matter was listed before me on 7 June to deal with the dispute, however by the time of the hearing it had been agreed that all documents tendered to date were to be accepted into evidence. Counsel for the defendants did, however, indicate that Dr Tjiong's submissions dated 26 May raised new issues and submitted that he should have an opportunity to put on further submissions in reply. I agreed, but did not think that there was any need for Dr Tjiong to put on a reply of his own. The defendants filed their final submissions on 28 June. 23. As I understood it, the proceedings stood formally reserved for judgment on 28 June. But in the background the admission of further evidence and the lodgement of further submissions was being debated by the parties. Following an email sent by Dr Tjiong to my Associate on 22 September, the matter was re-listed. The result of the hearing, on 5 October, was that Dr Tjiong was granted leave to file a further affidavit and documentation, and the defendants were permitted to file further submissions in response. Those submissions (which had already been prepared) were served later that day. At that point, the matter finally stood reserved for judgment. Summary dismissal 1. As already noted, Dr Tjiong's application to have the judgments of Palmer J and of the Court of Appeal set aside rests on two bases. First, he seeks to invoke the Court's equitable jurisdiction to set aside judgments that have been procured by fraud. In his statement of claim Dr Tjiong referred to this as the jurisdiction "as defined by" the High Court in Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165. Second, he relies on UCPR, r 36.15(1) which gives the Court power to set aside a judgment if it was given or entered "irregularly, illegally or against good faith". 2. The origins of equity's jurisdiction to set aside judgments was described by the High Court in Clone in the following way (at 187 [43], citations omitted): Prior to the Judicature Reforms, in the Court of Chancery there were several different methods for setting aside or avoiding the effect of either enrolled decrees or perfected common law judgments. In relation to its own decrees, and apart from an appeal from the Lord Chancellor to the House of Lords, the Court of Chancery recognised two ways in which decrees could be set aside even when enrolled. The first was a bill of review. On a bill of review, the reviewing court had very broad powers to reverse or alter a decree. The second was an original bill. The original bill could issue without leave, to rescind or "annul" the decree on the ground of "fraud and imposition". 1. With the enactment in the United Kingdom of the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66) a formal appeal structure was established, which overtook the equitable system of appeals by way of bill of review. As the High Court stated in Clone (at 189 [48], citations omitted): That formal appeal structure left no room for the continued existence of a separate appellate procedure by a bill of review. Therefore, despite some early doubts or assumptions to the contrary, and like the disappearance of the Chancery power to restrain the enforcement of a common law judgment, the bill of review did not survive the Judicature Reforms… It was replaced by a defined appellate structure, including provisions for motions for new trials to be heard by an appellate court, with associated restrictions including time limitations. 1. The equitable jurisdiction to set aside a judgment for fraud by way of original bill was, however, not disturbed by the Judicature Reforms and continued to operate. The High Court confirmed its continuing existence in South Australia in Clone (at 191 [52], citations omitted): Equity had a separate, and much narrower, power which, in contrast with the broad power contained in bills of review, was not subsumed into the post-Judicature powers of the appellate court. It remains part of the equitable powers of the Supreme Court of South Australia by operation of the common provision vesting in the Supreme Court the jurisdiction of the High Court of Chancery. 1. In New South Wales, UCPR, r 36.15(1) is based on a former provision of the District Court Rules 1973 (NSW), Pt 31, r 12A, which gave the District Court powers which were analogous to (and perhaps somewhat wider than) this Court's powers to set aside its own judgments. That power can be traced back to the District Court Act 1912 (NSW): see Coles v Burke (1987) 10 NSWLR 429 at 434G-437A. 2. In Coles, Kirby P, who gave the leading judgment, stated (at 437C) that "the genus which is involved in the phrase 'irregularly, illegally or against good faith' appears to me to be misconduct or dishonourable conduct of the person who procured the judgment". On that view a judgment procured by fraud would apparently be a judgment given or entered "against good faith" for the purposes of r 36.15(1). Counsel for the defendants in the present case did not suggest to the contrary. 3. On this analysis, the effect of r 36.15(1) has been to confer upon this Court an express power of statutory origin which encompasses the original equitable jurisdiction to set aside a judgment for fraud. Applying the reasoning in Clone, it might be argued that, just as the bill of review procedure in equity did not survive the enactment of the Judicature Act, so too the equitable jurisdiction to set aside a judgment for fraud has not survived the adoption of r 36.15(1), or at least has become redundant so long as that rule exists. 4. The High Court did not consider this possibility in Clone. In that case the moving party only sought to invoke the Supreme Court's equitable jurisdiction. And although there is a rule permitting the Supreme Court of South Australia to set aside its own judgments in some circumstances, that rule is in its terms quite different from UCPR, r 36.15(1). 5. I note in passing that, to the extent that an application to set aside a judgment is brought under r 36.15(1), there is a question as to the procedure which should be used. Ordinarily, applications under r 36.16 are brought by way of notice of motion; in fact, the text of that provision expressly requires it. It is hard to see why the procedure under r 36.15(1) should be any different. 6. By contrast, the received view is that an application to set aside a judgment on the ground of fraud should be brought by way of separate proceedings: see Flower v Lloyd (1877) 6 Ch D 297 at 302; Hip Foong Hong v H Neotia & Co [1918] AC 888 at 894; Jonesco v Beard [1930] AC 298 at 300-301; McDonald v McDonald (1965) 113 CLR 529 at 533; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699-700; Clone at 183. But the authorities make it clear that that is only a general rule of practice. 7. It may therefore be that Dr Tjiong's application could have been brought by way of motion, provided, of course, that his allegations of fraud had been set out in the notice of motion, or by way of separate points of claim, at a proper level of detail: see Jonesco at 301. 8. In the end, it is not necessary to go any further into these doctrinal and procedural questions. Dr Tjiong brought his application in separate proceedings by way of statement of claim, invoking both the Court's equitable jurisdiction and r 36.15(1), and no point was taken about the form of the application. In the rest of this judgment, I will consider the application on the footing that both bases are available, distinguishing where necessary between the equitable jurisdiction and the power under the Rules. Standing 1. The defendants' first ground for summary dismissal is that Dr Tjiong lacks standing to bring the claims in his own right. Their main contention is that upon his bankruptcy, control of the proceedings passed to his trustee. It is convenient to begin with a summary of the statutory scheme. 2. BA, s 58(1)(a) provides that following bankruptcy, the property of the bankrupt (not being after-acquired property) vests in the trustee. The "property of the bankrupt" is defined in s 5(1) to mean: (i) the property divisible among the bankrupt's creditors; and (ii) any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt. 1. BA, s 116 defines "the property divisible among the bankrupt's creditors". Subsection (1)(a) provides that all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy is property divisible amongst the creditors. Subsection (2) then establishes a number of exceptions. Relevantly, s 116(2)(g) provides: (2) Subsection (1) does not extend to the following property: … (g) any right of the bankrupt to recover damages or compensation: (i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; … and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person. 1. "Property" is defined in s 5(1) to mean: [R]eal or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property. 1. BA, s 60 provides for the stay of legal proceedings which were commenced prior to a person becoming bankrupt. Subsection (4) then establishes an exception which is similar, but not identical, to s 116(2)(g): Stay of legal proceedings ... (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after the notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; ... (5) In this section, action means any civil proceeding, whether at law or in equity. 1. These provisions require two alternative lines of analysis. The first depends upon whether Dr Tjiong's application constituted "property" within the meaning of the Act, such that it prima facie vested in the trustee upon his bankruptcy by virtue of s 58(1). If that was the case, then the inquiry turns to whether the exception in s 116(2)(g) applied. 2. If Dr Tjiong's application was not "property" in the relevant sense, it may nevertheless have constituted an "action" for the purposes of s 60(2). If so, Dr Tjiong's application has prima facie been made the subject of an automatic stay. It is not in dispute that the trustee has made no election to prosecute the claim under s 60(3), and therefore, is deemed to have abandoned it. The question would then be whether Dr Tjiong could continue the proceedings personally by virtue of the exception in s 60(4)(a). 3. Vesting of application in trustee: The starting point is the decision of the English Court of Appeal in Boaler v Power [1910] 2 KB 229. That case concerned an action to have three sets of orders made by the Chancery Division and the Court of Appeal set aside on the ground of fraud. The action was commenced by the plaintiff prior to his bankruptcy. Following the bankruptcy, the trustee declined to proceed with the action and the defendants applied for it to be dismissed. 4. One of the plaintiff's claims was to have the register of the defendant company rectified to reflect that he was the holder of certain shares. Farwell LJ concluded that that was property which, if recovered, would belong to the trustee for the benefit of his creditors and, therefore, "it is clear that he has no locus standi in respect of this". 5. The plaintiff had also been the liquidator of the company and in that capacity had claimed delivery up of certain books of the company. That action had been dismissed with costs, and it had been those costs that had given rise to the judgment debt which had resulted in the plaintiff's bankruptcy. The plaintiff did not, in his set-aside action, continue to seek delivery up of the books, but sought instead to "contest on an allegation of fraud the judgment against him on the ground that he has lost his status by reason of that judgment". 6. The plaintiff submitted that an action to set aside a judgment on the ground of fraud was a well-recognised form of action. He contended that it was an action to "recover damages for a tort, the immediate result of which is to cause injury to the personal feelings of the judgment debtor and (in the present case) to alter his status". He submitted that this was a claim that was personal to himself and, therefore, did not pass to the trustee upon his bankruptcy. 7. Farwell LJ considered the plaintiff's position was untenable. His Lordship concluded (at 232-233): It is open to the Court in bankruptcy, if it thinks fit, to allow the debtor to contest in the Bankruptcy Court the validity of the petitioning creditor's judgment on the ground of fraud, collusion, or for any other sufficient reason: In re Flatau. But this is the only way in which the bankrupt can contest it: the adjudication, while it stands, is conclusively binding on him: he cannot contest it in any other Court on the ground of fraud or on any other ground. The right to continue these three actions is a chose in action vested in the trustee, and the bankrupt has no locus standi: Motion v Mootjen; Rochfort v Battersby; Metropolitan Bank v Pooley. 1. Boaler was considered by the High Court in Cummings v Claremont Petroleum NL (1996) 185 CLR 124. In that case, Claremont and a related company, Beach, made claims against two of their former directors for damages for conspiracy, deceit and breaches of directors' and other statutory duties. After the hearing, but before judgment had been handed down, the former directors were made bankrupt. The Court then delivered its decision on Claremont's and Beach's claims, which were successful. The Court lifted the stay on the proceedings against the bankrupts to allow judgment to be entered against them. The bankrupts then filed appeals against the judgments. Claremont and Beach applied to have the appeals dismissed as incompetent, contending that any appeal against the judgments had to be brought by the bankrupts' trustees. The application was successful. 2. On appeal to the High Court, there were two issues for consideration. First, whether the right to appeal was "property" under BA, s 5(1) which had vested in the trustee. Second, if it was, whether it fell within the exception provided for in s 116(2)(g) and was thereby excluded from the operation of s 58(1). 3. On the first question, Brennan CJ, Gaudron and McHugh JJ observed (at 133, citations omitted): A right to appeal may be a substantive right, but it is another question whether such a right has the character of property. Some rights created by statute can constitute property, but a right to appeal does not have the character of property merely because it is the creature of statute. A chose in action may be the property of the person entitled to enforce it, but a liability to satisfy a judgment enforcing a chose in action is not property of the person against whom the judgment is entered. A liability is not property of the person liable. Nor is a right to appeal against a money judgment property of the judgment debtor… As a matter of ordinary language, a judgment debtor's right to appeal against the judgment is not property. 1. Their Honours then considered Boaler and, in particular, the conclusions quoted at [88] above. They continued (at 134, citations omitted): [T]he last sentence … suggests that the consequence of exclusivity is that a right to impeach a judgment for fraud is classified as a chose in action which is part of the property of the bankrupt. By analogy, the same character might be attributed to an appeal against a judgment … If the postulated appeal relates to property that became vested in the trustee on the bankruptcy, or if the postulated appeal relates to a claim by the bankrupt for money or property that would be vested on recovery in the trustee, the right to appeal is vested in the trustee, as the cases cited by Farwell LJ illustrate. 1. In the end, their Honours concluded (at 135-136): None of the three cases cited in Boaler v Power related to litigation in which judgment had been sought or entered against a bankrupt. Boaler v Power itself was a case in which the bankrupt was seeking to impeach judgments in actions brought to enforce proprietary rights which, if they existed, were vested in the trustee. Neither Boaler v Power nor the cases cited establish the affirmative proposition that a right to appeal is property. They do establish the negative proposition that a bankrupt has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy. … If Boaler v Power were taken as authority for the proposition that a right to appeal in an action brought to enforce a liability of the defendant is property of the defendant, it too would be wrongly decided. But Boaler v Power is explicable as a case relating to proceedings brought by a bankrupt to protect or enforce rights in or to property vested in his trustee. But that is not the present case. 1. In the passage from Boaler quoted at [88] above, Farwell LJ described the right to apply to have a judgment set aside for fraud as a "cause of action". But such a right is not a cause of action in the conventional sense. It is quite different in its nature from a claim for damages or other relief based on allegedly fraudulent conduct by the defendant. The usual relief available to a successful applicant is to have the judgment set aside, following which there will be a fresh trial. The application is purely procedural, in the sense that it has no independent existence beyond the original judgment. 2. In principle there seems to be a close analogy between an appeal and an application in the court's equitable jurisdiction to set aside a judgment for fraud. The analogy with an appeal is even closer under UCPR, r 36.15(1). On the reasoning of the majority in Cummings, it could therefore be argued that Dr Tjiong's application was not "property" for the purposes of s 58(1). 3. This argument faces the apparent difficulty that in Cummings the High Court quoted Farwell LJ's description of the application in Boaler as a "cause of action" which had been "vested" in Mr Boaler's trustee, and distinguished such an application from an appeal. However the argument is not inconsistent with the actual decision in Boaler. Furthermore, in explaining the decision the High Court said that Boaler stood only for the proposition that a bankrupt has no right to bring or continue proceedings to protect, enhance or add to property vested in the bankrupt's trustee. That proposition is not itself inconsistent with the argument. 4. Even if, contrary to the argument, Dr Tjiong's application constituted "property", then on Dr Tjiong's bankruptcy that property vested in his trustee, unless it was a right to recover "damages or compensation" for "personal injury or wrong" done to him within the meaning of s 116(2)(g). But if successful, Dr Tjiong was only going to be entitled to have the relevant orders set aside, and a retrial. He was not going to receive an award of damages or compensation. Thus the exception in s 116(2)(g) could not have applied. The application would have vested in his trustee and he would lack standing to pursue it. 5. Application of s 60: Even if this were incorrect, it would be necessary to consider the effect of s 60. Under s 60(2), the stay prima facie applies to any "action" previously commenced by the bankrupt, and the term "action" is defined in wide terms in s 60(5). In particular, it is not limited to proceedings to enforce a claim based on a proprietary interest which has passed to the trustee under s 58: see Muir v Angeles [2020] NSWSC 1056 at [65]-[70]. 6. In Cummings, s 60 did not apply as the appeal had been commenced after the former directors became bankrupt. But Brennan CJ, Gaudron and McHugh JJ stated expressly (185 CLR at 130-131) that if the appeal had begun before the former directors' bankruptcy, it would have been an "action" for the purposes of s 60. 7. The analogy with the present case is, in my opinion, compelling. As a result, Dr Tjiong's application, even if not "property" of his trustee for the purposes of s 58, would prima facie be stayed by s 60(2) and would be liable to dismissal because it has been abandoned by the trustee. That would be so unless the application is an action "in respect of" a "personal injury or wrong" within the meaning of s 60(4)(a). 8. Exception for "personal injury or wrong": I will address the exception by reference to Dr Tjiong's application as it stood when he was made bankrupt on 10 September 2019. In his then statement of claim, Dr Tjiong sought orders setting aside the judgments and orders of Palmer J and the Court of Appeal in their entirety. But he modified his position in the course of the hearing. 9. I will begin with the orders made by Palmer J. Orders 3 and 4 required Dr Tjiong to deliver to Katrina all of George's assets, books and records, and were effectively a consequence of the orders made by consent in June 2009. In the course of argument, Dr Tjiong excluded orders 3 and 4 from his application. 10. Dr Tjiong maintained, at least initially, his challenge to the conduct declarations made against him (orders 1, 2 and 6); the order that he make restitution for costs incurred as a result of the fabricated Reeves claim (order 5); the declaration that the $135,000 paid to the Oninama Charitable Foundation was held on constructive trust for the Family Trust (order 7); and the costs orders made against him (orders 8 and 9). Dr Tjiong also sought to challenge the judgment and orders of the Court of Appeal in their entirety, but not the consent orders entered into in June 2009. 11. In Samootlin v Shea [2010] NSWCA 371, the Court of Appeal re-affirmed the continued authority of what Dixon J had said about the meaning of "personal injury or wrong" in Cox v Journeaux (1935) 52 CLR 713 at 721: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. 1. In Cox v Journeaux the provision under consideration was s 63(3) of the former Bankruptcy Act 1924 (Cth). That provision was similar, but not identical, to the current s 60(4)(a). It allowed a bankrupt to continue an action or proceedings "for" any personal injury or wrong. Although Dixon J referred to "damages" there was no express use of that term as there is in the current s 116(2)(g): see also Fisher v Transport for NSW at [22] per McCallum J. 2. In passing, I note that s 60(4)(a) refers to actions commenced "in respect of" personal injury or wrong, rather than actions "for" personal injury or wrong as in the former s 63(3). The effect may have been to widen the exception (compare Unsworth v Commissioner for Railways (1958) 101 CLR 73 at 87). But it is not necessary to consider that possibility further in this judgment. As will be seen, the dispositive question here is the scope of the phrase "personal injury or wrong". That phrase clearly has the same meaning in both s 60(4)(a) and s 116(2)(g). 3. In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J expanded on Dixon J's discussion in Cox v Journeaux and stated (at 119; approved in Samootin v Shea at [79]): The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt … Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt. 1. In Daemar v Industrial Commission (NSW) (1988) 12 NSWLR 45 Kirby P said (at 56): Although it is true that the claimant contends that a "wrong" has been done to him and that he has suffered hurt and even "defamation" in the course of the judgments of the Commission, these contentions are irrelevant to the task of identifying, for the purpose of s 60(4)(a) of the Act, the nature of the action exempted from the stay. The exemption is limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property, and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors. 1. In Cummings, although Dawson and Toohey JJ were satisfied that the bankrupts' right to appeal constituted property within the meaning of s 58, they did not consider that the exception in s 116(2)(g) applied. This was because, in their Honours' view, the judgment the subject of the appeal did not constitute a "personal injury or wrong" done to the bankrupts. Their Honours concluded (at 148, citations omitted): It may be said that the findings of conspiracy to defraud, deceit and contraventions of statutory obligations not to engage in misleading and deceptive conduct affect the appellants. But these are findings in the course of arriving at the orders to be made. Although they affect reputation, they are not themselves a "personal injury or wrong done to the bankrupt" which could form the basis for a separate cause of action. The judgment is a judgment for a sum of money which cannot be pursued against the appellants save through the machinery of the Act. 1. Similarly, John Dixon J later stated in Sheehan v Brett-Young (No 3) [2016] VSC 39 (at [43]): The mere fact that the findings made by the court might affect or damage reputation does not make the claim one of a personal wrong done to the bankrupt. The key distinction appears to be whether the personal injury or wrong could form the basis of a separate cause of action. 1. In the present case, Dr Tjiong relied on the test stated by Dixon J in Cox v Journeaux. He contended that in bringing these proceedings, he was seeking to redress wrongs done to his "mind, body and character" by the actions of Katrina and Lindsay in fraudulently procuring the orders under challenge. He submitted: Written into his judgment, his Honour Palmer J made scathing findings on my personal credit (materially my character) at [80] in relation to the logbook, at [120] in relation to the logbook and the Reeves, at [130] in relation to the File Note, and at [135] in relation to "Richard's fraud" and the GT Trust, to the point of referring me to the Attorney General and the Director of Public Prosecutions for possible prosecution for perjury at [140]. ... I submit that my primary cause of action is to restore my credit and character that was grossly wronged by the defendants' fraud in the primary proceedings. My claim for the damages to my mind, body and character is secondary to and consequential upon my primary cause of action. 1. It is convenient to begin with Palmer J's order 5, which required Dr Tjiong to pay compensation for the expenses incurred as a result of the Reeves claim. Dr Tjiong told me that he made a payment of around $110,000 in 2015 in satisfaction of order 5 and he sought to have that money returned. But it is clear that any funds recovered would, as a result of his bankruptcy, enure to his trustee for the benefit of his creditors. 2. Similarly, the costs orders made by Palmer J against Dr Tjiong (orders 8 and 9) gave rise to debts provable in his bankruptcy. It is Dr Tjiong's other creditors who would benefit if those orders were set aside. 3. The point of challenging the declaration concerning the $135,000 transferred to the Oninama Charitable Foundation (order 7) was even less clear. It should be remembered that Katrina was appointed as trustee of the Foundation pursuant to the consent orders. No doubt the money would have been paid back to Katrina and Lindsay, directly or indirectly, long ago. Setting the declaration aside would, of itself, have no practical effect. It would be necessary to go further and obtain an order for the recipients to account back to the Foundation for the money. Dr Tjiong did not seek such an order and doing so would have raised obvious obstacles, given the time which has passed since the order was made. 4. At the hearing in September last year, I asked Dr Tjiong whether he wanted the $135,000 returned to the Oninama Charitable Foundation. Initially Dr Tjiong said that he did. But after I raised some of the practical difficulties with him he seemed to accept that this was impracticable. Instead, he explained: This whole thing of my proceedings today is to do not so much with money as it is about restoring my reputation that has been badly mauled by what turns out in hindsight to be erroneous findings or judgment by Justice Palmer. 1. When I asked at a later point whether he wanted the financial transactions consequent upon the declaration to be reversed, Dr Tjiong responded: Not at all. I don't want to disturb – just to be certain that I am clear in my understanding of what your Honour's just announced, I am not seeking the actual return of the Oninama Trust money back into the GT Family Trust… ... [T]o be clear I'll repeat that, I am not asking for financial transactions to be reversed. I just wanted the actual judgment that impugned on me so badly to be set aside. The objective, I am sorry to be strained here, the objective of my proceedings are at least two-fold. I want the injustice done to me and to my personal name, the wrong to me to be corrected. And I would like to also see that the injustice that was done in the primary proceedings to the administration of justice, to be corrected. 1. As will be seen below, in the latest version of his proposed statement of claim, the challenge to order 7 has been maintained, but without any attempt to explain the apparent reversal of Dr Tjiong's position and without addressing the practical problems which I have identified. But there is no need to go into this. There is an even more fundamental problem. 2. As I have already mentioned, Dr Tjiong ceased to be the trustee of the Foundation more than ten years ago. Nor is he one of the beneficiaries. He has no interest in its affairs whatsoever. He lacks standing to challenge order 7 for that reason alone. 3. This brings me to the conduct declarations. Orders 1, 2 and 6 were: (1) A DECLARATION that the consent given by the plaintiffs to the establishment of the George Tat Loek Tjiong Family Trust on 11 December 2003 was obtained by the defendant, Richard Tat Tjhien Tjiong, by fraud and the wrongful exercise of undue influence and unconscionable conduct. (2) A DECLARATION that the defendant, Richard Tat Tjhien Tjiong, by his conduct, including by: (a) Fabricating, fraudulently, a file note alleged to contain extra-testamentary wishes or instructions given by the late George Tat Loek Tjiong purportedly conferring on the defendant greater powers over his deceased estate inconsistent with the terms of his last will, and by presenting this alleged File Note to the plaintiffs on 8 April 2008, urging upon the plaintiffs the authenticity of this fabricated file note, and, thereafter falsely maintaining the authenticity of the alleged File Note in these proceedings; (b) Fabricating records and documents and dealing with them for the purpose of creating, fraudulently, a fake claim against the estate of the late George Tat Loek Tjiong by a "Rod Johnson" on behalf of a "Kevin Reeves"; (c) Giving evidence on oath in these proceedings of conversations the defendant alleged he had with the late George Tjiong in the Austin Hospital, Melbourne on 26 March 1996 and on 30 March 1996, including evidence of the circumstances of his travel to Melbourne in the first instance, which evidence was false; (d) Fabricating, fraudulently, for the purposes of evidence in these proceedings a pilot's log book, said to be his own personal pilot's log book, commencing from July 1984 which log book was false; has acted in breach of his duty as executor and trustee of the estate of the late George Tat Loek Tjiong and as trustee of the George Tat Loek Tjiong Family Trust and that his conduct warrants his removal as executor and trustee. … (6) A DECLARATION that the purported distribution of moneys from the so-called George Tat Loek Tjiong Family Trust made by the defendant on or about 18 February 2005 in the sum of $134,945.78 to the trustee of the trust styled as the "Oninama Charitable Foundation" was made in breach of trust. 1. Usually the purpose of making a declaration is to record the determination of a legal issue which has significance for the ongoing relationship between the parties, for example that a contract remains on foot despite its purported termination. Another case where a declaration may be appropriate is to define the basis for further legal proceedings, for instance a declaration identifying breaches of contract which are to be the subject of a separate and later damages hearing (so far as the court avoids making an impermissible "interlocutory declaration": see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 590-591). 2. The conduct declarations, however, were not of that character. Palmer J noted in his judgment (at [22]) that declaration 1 required no consequential order as, pursuant to the consent orders made the previous year, Katrina and Lindsay were already in control of the Family Trust; the declaration was sought as a "foundation" for the indemnity costs order sought against Dr Tjiong. 3. Declarations 2 and 6 seem to have emerged only when final orders were being made, and were presumably sought as further pegs on which to hang the indemnity costs order. Declaration 2 required no consequential order for the same reason that declaration 1 did not need one, and declaration 7 operated as the consequential order for declaration 6. 4. It was not however necessary to make the conduct declarations to support the indemnity costs order. The findings in Palmer J's judgment were sufficient for that purpose. In the end, the conduct declarations functioned as no more than a formal record of some of the findings, or intermediate conclusions, reached by his Honour on his way to making those costs orders. 5. It follows that if the setting aside of the conduct declarations would confer any recognisable legal benefit on anyone, it would be conferred on those who would benefit from setting aside the costs orders. As I have already mentioned, that would be the other creditors in Dr Tjiong's bankruptcy. 6. As Dr Tjiong's submissions make clear, his real complaint in these proceedings is about the damage to his reputation from the adverse findings against him. He emphasised that, on his case, that damage resulted from fraudulent conduct on the part of Katrina and Lindsay. But I do not think that makes any real difference. As I have already explained, Dr Tjiong's application is quite different in its nature from an action in tort. If the Court finds that fraud has been committed, that fraud will have been a fraud on the Court itself. Such a finding would not of itself entitle Dr Tjiong to any recompense from Katrina and Lindsay. It would only entitle him to a new trial of their claims against him. 7. Dr Tjiong referred me to a number of cases which involved claims relating both to property rights and personal injuries or wrongs of a bankrupt. In such cases, the courts have consistently held that whilst the proprietary claims pass to the trustee, the personal claims may be effectively severed and remain with the bankrupt (see, for example, Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88). 8. Dr Tjiong also relied on Fisher v Transport for NSW which, it will be recalled, was the case that prompted counsel for the defendants to originally abandon the bankruptcy point altogether (see [51] above). In that case the plaintiff, Mr Fisher, was a bus driver and was required to hold an authority under the Passenger Transport Act 1990 (NSW). In 2011 his authority was cancelled by the defendant, Transport for NSW, because he was not considered to be a "fit and proper person to hold a drivers authority". 9. Mr Fisher commenced proceedings seeking judicial review of the decision to cancel his authority. He later became bankrupt. The question for McCallum J was whether Mr Fisher was entitled to continue the proceedings by virtue of s 60(4)(a). Mr Fisher's contention was that the finding that he was not a fit and proper person was "a finding as to character, which falls within the scope of s 60(4)(a), being a personal injury or wrong done to the bankrupt". 10. McCallum J held that Mr Fisher's action fell within the exception in s 60(4), considering that the notion "personal injury or wrong" might extend to an adverse administrative decision. Her Honour concluded (at [37]): If this was an action for damages for defamation arising from the publication of the imputation that Mr Fisher is not a fit and proper person to engage in his chosen occupation of a bus driver, the decision in Moss v Eaglestone would hold that the action fell within the exception in s 60(4)… It seems to me that, for coherence, the law should similarly regard an action seeking to impugn an administrative finding that Mr Fisher is not a fit and proper person to engage in the occupation of a bus driver to be an action "in respect of" a personal injury or wrong. 1. Dr Tjiong contended that the challenged orders of Palmer J, and in particular the conduct declarations, were analogous. But the case is, I think, distinguishable. The determination that Mr Fisher was not a fit and proper person was made for the purpose of a criterion specified by statute (s 11(2)(a) of the Passenger Transport Act) for holding a driver's authority. It was thus a determination of status with direct legal consequences (see Cummings at 148 and Sheehan at [43]). 2. In the present case the orders made by Palmer J were made for the sole purpose of resolving the claims made by Katrina and Lindsay. The making of those orders, including the conduct declarations, had no consequences for Dr Tjiong's legal status. The authorities, including Daemar, Cummings and Sheehan, all make it clear that whilst such orders may affect Dr Tjiong's reputation, they do not affect his interests in a way which gives rise to a "personal injury or wrong" in the relevant sense. The only effect of setting them aside would be on the financial interests of Dr Tjiong's creditors, and no question of severance arises. The same conclusion applies a fortiori to the orders of the Court of Appeal which Dr Tjiong seeks to set aside. 3. Conclusion: For these reasons, I am not satisfied that Dr Tjiong's application, or any part of it, falls within the exception in s 60(4)(a). Whether or not his application was "property" for the purpose of s 58, he has no standing to pursue it. The application must be dismissed for that reason alone. For completeness, however, I intend to address the other grounds for summary dismissal on which the parties made submissions. 4. The conclusions I have reached on the bankruptcy issue expose, in hindsight, an unfortunate aspect of the procedure adopted by the defendants in this case. As I have mentioned, the defendants' motion for summary dismissal (and the other motions by the defendants with which I dealt in August last year) were brought pursuant to leave granted by the Federal Circuit Court exercising its bankruptcy jurisdiction under s 58(3)(b) (see [41] above). Those motions must have been premised, even if only implicitly, on Dr Tjiong's claims having passed to his trustee in bankruptcy. I have now, after a very lengthy process, confirmed that that was so. But if the issue had been focussed on when the application was made to the Federal Circuit Court, declaratory orders could have been obtained from that Court which would have made the contested motions in this Court unnecessary. None of the debate engendered by the defendants' other challenges to Dr Tjiong's application would have had to take place. Res judicata and abuse of process 1. The defendants' second ground for summary dismissal is that the current proceedings are an attempt by Dr Tjiong to re-litigate claims that were finally determined by Rein J in the first fraud proceedings. Therefore he is estopped from bringing them by virtue of the doctrine of res judicata (also referred to as "cause of action estoppel"). 2. In order to deal with this contention, it is necessary to go into the facts of the first fraud proceedings in more detail. The defendants' application to have Dr Tjiong's statement of claim struck out (see [36] above) was made under UCPR, r 14.28. That motion came before Rein J for hearing on 29 May. 3. Counsel then appearing for Dr Tjiong had, only two days beforehand, withdrawn from the case. Mr Scheelings of counsel was then briefed to appear. 4. At the beginning of the hearing Mr Scheelings sought an adjournment in order to brief senior counsel and to allow him an "opportunity to amend and properly draft [the] statement of claim". Counsel for the defendants, Mr Evans, opposed the application for an adjournment and tendered a letter sent by his instructing solicitor to Dr Tjiong's solicitor on 6 March 2019. That letter was in evidence before me and detailed the reasons why the defendants contended that the proceedings were an abuse of process and should be withdrawn. 5. Rein J expressed concern at the fact that no formal adjournment application had been made and there was no supporting affidavit. His Honour continued: His Honour: Look, on one view we could spend a lot of time on this, the whole issue of whether there should be an adjournment or not but if it is accepted that the pleadings are defective then the consequence could be that the proceedings are dismissed and if you want to start proceedings again with some better document, you will have to do so. You hear what … Katrina and Lindsay are saying in this letter and there is a strong warning there that any further proceedings are going to be resisted in the same way but that is a matter for you. Do we need to spend time today? If they are dismissed it does not end the matter in the sense that you can bring proceedings again, can't you? ... Mr Evans: Can I assist, your Honour. The principal order we seek in the motion is that the plaintiff's claim be struck out, which leaves them free to commence them again as opposed to a dismissal. His Honour: Yes, you are quite right. Then they can prepare it as in some new form. 1. After a short adjournment, Mr Scheelings advised that the parties had reached an agreement to strike out the statement of claim by consent, with an application for leave to file an amended statement of claim to be made within two weeks. His Honour made orders to that effect and stood the matter over for further hearing on 5 July. 2. On 28 June Dr Tjiong's solicitor, Mr Hartmann, filed an affidavit which annexed a draft amended statement of claim. However, that document did not amend the relief claimed in the original statement of claim; rather, it sought to advance an entirely new claim relating to the Burwood Trust. 3. When the matter returned before his Honour on 5 July, Mr Scheelings advised that senior counsel had reviewed the struck-out statement of claim but had formed the view that he was "not able to amend that document". Senior counsel had, however, in the course of reviewing his brief identified "another cause of action" on behalf of Dr Tjiong. Mr Scheelings submitted that this was "not the same cause of action" and that the "cleanest option would be to discontinue the proceedings with costs and re-file". 4. Mr Evans proposed that the proceedings should be "dismissed with an order for indemnity costs". He agreed with Rein J's suggestion that the "new pleading" should simply be "filed in the normal course", but added that he thought proceedings on that pleading would nevertheless constitute an abuse of process and foreshadowed a future application on that account. 5. Mr Scheelings advised that he had drafted some short minutes which provided for orders discontinuing the proceedings with indemnity costs. His Honour responded: His Honour: It is not really going to be discontinuance. You filed a statement of claim; it was struck out by consent. You sought the chance to replead. You could not replead it. I understand in accordance with your obligations and therefore the proceedings should be dismissed, shouldn't they? Mr Scheelings: That is so. His Honour: Discontinuance is not dismissal. Mr Scheelings: We hear what has fallen from the Bench. We can take no objection to that. 1. There was then a short adjournment, after which Mr Evans produced a draft minute of order. The orders were, apart from one, consented to by Mr Scheelings. Although the document was not in evidence before me, I think it can readily be inferred that the order objected to was one which prevented Dr Tjiong from bringing further proceedings without having first satisfied his costs liabilities from other proceedings. During the discussion, the following exchange took place: Mr Scheelings: I suspect the concern of my friend is that he fears there is the possibility, we say of course there is none, but he does not know that, the possibility that the same cause of action could be filed in the new one. His Honour: No, I don't think it is that. I think you might be right actually Mr Scheelings. I am not sure that I can make an order in these proceedings in those terms. But you will be put on notice by what is said here, if I reject it as I think I will, there is a principle that says when you have been ordered to pay costs in the proceedings against a party and you commence fresh proceedings, whatever they are, if you haven't paid their costs, that is a reason to block those proceedings. There are cases on that to say that if the defendant says, "I have a costs order against you in previous proceedings. You haven't paid them. You cannot continue with those proceedings" leaving aside any inherent abuse of process issue. Mr Scheelings: To that I would simply say that the rules are clear it has to be the same or similar cause of action. He has acknowledged it is completely different. If the principle extends beyond that, that is something that my friend can deal with in due course. 1. Rein J then made the consent notations and orders which relevantly provided: (1) The Court notes the concession made by the Plaintiff that the Statement of Claim filed in these proceedings, which pleading was struck out on 29 May 2019, could not be re-pleaded on the causes of action brought in that document. (2) Order that these proceedings be dismissed. 1. Three days later, Dr Tjiong commenced the Burwood Trust proceedings. The relief sought in the statement of claim filed in those proceedings was, in terms, identical to the relief sought in the draft amended statement of claim annexed to Mr Hartmann's affidavit. As noted, the Burwood Trust proceedings were eventually dismissed as a result of Dr Tjiong's bankruptcy (see [46] above). 2. Res judicata: The doctrine of res judicata was described by Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466 as follows: The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. 1. The starting point is to note that the claims propounded by Dr Tjiong in the first fraud proceedings, and those propounded in these proceedings, are substantially the same. The relief claimed in the statement of claim filed on 25 February 2019 in the first fraud proceedings was as follows (excluding orders for costs): 1. An order pursuant to UCPR r. 36.15 that the Orders of the New South Wales Supreme Court in proceedings No. 2005/1453, be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 2. An Order that the Orders made by the Court on 16 June 2009 in proceedings 2005/1453, made with the consent of the parties, are not set aside. 3. An Order pursuant to UCPR r 36.15 that the Orders of the Court of Appeal in proceedings No. 2005/257959 be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 1. The relief claimed in the amended statement of claim filed on 4 October 2019 in the present proceedings was as follows (excluding orders for costs): 1. An Order pursuant to: (i) the Court's original equitable jurisdiction as defined by the High Court of Australia in Clones v Players [2018] HCA 12, and (ii) UCPR r 36.15(1), that the Judgment and Orders of the New South Wales Supreme Court in proceedings No. 2005/1425, be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 2. An Order that the Orders made by the Court on 16 June 2009 in proceedings 2005/1453, made with the consent of the parties, are not set aside. 3. An Order pursuant to: (i) the Court's original equitable jurisdiction as defined by the High Court of Australia in Clones v Players [2018] HCA 12, and (ii) UCPR r 36.15(1), that the Judgment and Orders of the Court of Appeal in proceedings No. 2005/257959 be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 1. The only difference between the two is the reliance in the second fraud proceedings on the Court's equitable jurisdiction as an alternative to UCPR, r 36.15. The parties to both sets of proceedings are the same and there is no doubt that the second proceedings concern a question that was, if not determined, certainly raised in the first proceedings; namely, whether the judgments of Palmer J and the Court of Appeal should be set aside as a result of allegedly fraudulent conduct committed by Katrina and Lindsay. 2. Therefore, the only two questions for present purposes are whether the dismissal of the first fraud proceedings by Rein J on 5 July 2019 was: (1) a final decision; and (2) a decision which followed a determination on the merits. I will deal with each question in turn. 3. Finality: It is well established that a judgment by consent is final: Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502 at 508. In Spencer, Bower and Handley: Res Judicata (5th ed, 2019, LexisNexis Butterworths) the learned author stated at [2.16] (citations omitted): A judgment (or order) by consent is a res judicata. The court is discharged from the duty of investigating or further investigating the matter and does not pronounce a judicial opinion; but at the request of the parties it gives judicial sanction and coercive authority to an agreement which, except by statute, could not otherwise operate as a bar. A consent judgment that does not require the approval of the court does not involve any exercise of judicial power. Judgments, orders and awards by consent are as efficacious as those pronounced after a contest in creating cause of action estoppels and merging the cause of action sued on. 1. Counsel for the defendants relied on the fact that Dr Tjiong was, at both hearings before his Honour, represented by a solicitor and counsel who conceded, first, that the original statement of claim should be struck out, and then, having reviewed the document, that it could not be re-pleaded. Counsel submitted that the proceedings were, in effect, dismissed by consent and that the above-mentioned concessions made by Dr Tjiong's legal representatives were enough to bring Rein J's orders into the scope of res judicata. 2. Dr Tjiong did not dispute that the proceedings had been dismissed by consent. But he asserted that the only reason he consented to such a course was because Rein J had, in effect, left it open for him to commence fresh proceedings by way of a new statement of claim. Dr Tjiong submitted that all of the parties were aware of the possibility of fresh proceedings, citing Rein J's comments that those new proceedings "should just be filed in the normal course" (see [142] above). 3. Counsel for the defendants accepted that Rein J had contemplated that fresh proceedings would be filed, but submitted that his Honour was not referring to a further action to set aside the relevant judgments for fraud, but to Dr Tjiong's new cause of action concerning the Burwood Trust. Counsel submitted that what actually occurred at the commencement of the hearing on 5 July was that the draft amended statement of claim annexed to Mr Hartmann's affidavit was handed up to his Honour, which prompted Mr Scheelings to say "it's not the same cause of action" and his Honour to respond "it certainly is not". His Honour then refused to permit the draft pleading to be filed as an amendment to the original statement of claim and proposed to dismiss the proceedings, which was not objected to by Mr Scheelings. 4. Dr Tjiong disagreed with counsel's interpretation of the hearing on 5 July and made the following oral submissions on 10 November 2020: Mr Scheelings was highlighting the possibility of another cause of action as well as a replacement for the current cause of action which he agreed on my instructions to be dismissed. And any reference by the court or by any of the litigants on 5 July as to new pleadings, it refers to not new pleadings of a new cause of action, it refers to new pleading of the current cause of action which is being considered or being agreed to for dismissal. … Because Mr Evans said "the proceedings as filed should be dismissed with an order for indemnity costs and leave to apply to the court for lump sum costs order" and then he said "as for the new pleading, the new pleading of the old proceeding, it is obvious that should just be filed in the normal course" and that is what I am doing now, I am filing the new pleading of a proceeding that was not completely and finally determined in Justice Rein's court. 1. I cannot accept Dr Tjiong's submissions. Having reviewed the transcripts of the hearings before Rein J, I think it is clear that any reference to "fresh proceedings" was simply a reference to the new claim concerning the Burwood Trust, which was the subject of the draft pleading handed up to his Honour. Of course, that being a new claim founded on a different cause of action, Dr Tjiong was entitled to commence and pursue it, at least up until his bankruptcy. 2. It is true that at the hearing on 29 May, his Honour initially raised the possibility that dismissing the proceedings would not "end the matter" and Dr Tjiong could bring the proceedings again (see [138] above). However, counsel quite rightly pointed out that what the defendants were seeking was not a dismissal, but for the statement of claim to be struck out, which would leave Dr Tjiong "free to commence them again as opposed to a dismissal". His Honour responded, "Yes, you are quite right. They can prepare it as in some new form". 3. I infer from this exchange that what his Honour meant by his initial observations was that if the pleadings were struck out, as opposed to dismissed, Dr Tjiong could continue the proceedings by filing a fresh statement of claim (if leave to do so were obtained). But as counsel rightly observed, a dismissal would not afford Dr Tjiong the same opportunity. 4. Of course, Dr Tjiong did have the chance to re-plead after his statement of claim was struck out. But following Mr Scheelings' concession that the claim could not, in the end, be re-pleaded, Rein J considered the most appropriate course was to dismiss the proceedings. His Honour made it explicitly clear that he was not proposing a mere discontinuance, but a dismissal, to which Mr Scheelings responded "we can take no objection to that" (see [143] above). 5. Dr Tjiong's interpretation of the hearings is also inconsistent with the fact that during the discussion about the form of the orders on 5 July, Mr Scheelings attempted to quell any fears held by the defendants by saying that there was no "possibility that the same cause of action could be filed in the new one" (see [144] above). Mr Scheelings did not, as Dr Tjiong submitted, raise the possibility of both a new cause of action and a "replacement" for the current cause of action; in fact, he suggested quite the opposite. 6. In the end, it probably does not matter a great deal what was discussed in the lead-up to the making of his Honour's orders. The fact that both parties agreed to dismiss, not discontinue, the proceedings is sufficient for the purposes of finality. As Lord Herschell LC observed in Re South American and Mexican Co, ex p Bank of England [1895] 1 Ch 37 at 50: A judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments and were to allow questions that were really involved in the action to be fought over again in a subsequent action. 1. The issue was more recently discussed by Dunford J in Gray v Furber (Supreme Court (NSW), 23 May 1995, unrep). That case concerned an appeal against orders made by the Local Court following a dispute about the construction of a dividing fence. The parties were neighbours and, in 1993, the defendant sent the plaintiff notices requiring construction of a dividing fence on what was referred to as "area 1", and another fence on "area 2". Agreement was not reached and the plaintiff made an application to the Local Court for orders concerning the fencing work. 2. When the matter was heard on 10 February 1994, consent orders were entered which provided for the construction of a fence along area 2, but "no order" in respect of area 1. Subsequent proceedings were instituted in this Court and Dunford J was required to consider whether the matter was res judicata by virtue of the consent orders that had been entered. 3. Counsel for the defendant sought to argue that all that happened at the hearing on 10 February was that the parties had agreed to the work concerning area 2, but had left open for future determination what would happen to area 1. He contended that what occurred was not a "final settlement", but was only a partial settlement and that the words "no order" were ambiguous. However, Dunford J rejected this submission, stating (at 4): I have already referred to the transcript of that day where the Magistrate indicated there had been a settlement. That followed the then solicitor for the defendant saying, "These proceedings have been settled by way of consent orders." Moreover, the ordinary meaning of the terms in their context, in my view, indicate that the parties had agreed simply that the application in respect of area 2 was to succeed in the manner detailed in the consent orders, but that the application in respect of area 1 was to be dismissed, and that no order under the Act was to be made in respect of that area. That is confirmed by the fact that all parties referred to the matters being settled, not partially settled, and no date was fixed or sought for a determination of the allegedly outstanding issue in relation to area 1. 1. Dunford J was satisfied that the consent orders had the effect of terminating the proceedings in respect of both areas and, on their proper construction, that meant that the application as to area 1 was dismissed. Citing with approval both Chamberlain and the then current edition of Spencer, Bower and Handley, his Honour concluded (at 5): The final orders having been made on 10 February 1994, the matter was res judicata and the parties were estopped from averring or claiming to the contrary, and this applies notwithstanding that the orders were made by consent, and a second action cannot be brought which is founded on the same cause of action. 1. The present circumstances are, in my view, analogous with Gray. I am satisfied that Rein J's dismissal on 5 July was a final decision in the relevant sense. The orders were made by consent; they were not ambiguous or uncertain in their terms; and were clearly intended to dispose of the proceedings in their entirety, save for the issue of costs. 2. Decision on the merits: Section 91 of the CPA deals with the effect of a dismissal of proceedings and provides: (1) Dismissal of– (a) any proceedings, either generally or in relation to any cause of action, or (b) the whole or any part of a claim for relief in any proceedings, does not, subject to the terms on which any order for dismissal was made, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings. (2) Despite subsection (1), if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief in the proceedings, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in that or any other court. 1. As already noted, counsel for the defendants initially conceded that Rein J's decision to dismiss the proceedings did not follow a determination on the merits. However, at the hearing on 1 December last year I indicated that I was not convinced that this concession was necessarily correct (see [57] above). 2. Dr Tjiong's position was that Rein J's dismissal involved no consideration of the substance of the underlying causes of action, and therefore, was not a decision on the merits. In support, he referred to a decision of the Full Court of the Supreme Court of South Australia: Rogers v Legal Services Commission (SA) (1995) 64 SASR 572. 3. In that case, the plaintiff sought legal advice and funding from the Legal Services Commission in relation to a charge of contempt in the Family Court. The Commission did not consider his defence had any reasonable prospects of success and refused aid. The plaintiff was convicted and once more sought assistance from the Commission to appeal from the decision, but aid was again refused. The plaintiff later successfully appealed the conviction and commenced proceedings against the Commission seeking damages. 4. The Commission applied to have the pleading struck out for failing to disclose a viable cause of action, and was successful. The plaintiff, who remained unrepresented, then commenced fresh proceedings against the Commission, but judgment was ultimately entered against him on the basis that one of his claims was res judicata and the other failed to disclose a proper cause of action. The plaintiff then appealed to the Full Court. 5. One of the issues raised on appeal was whether the principle of res judicata applies in circumstances where an action has been struck out for a defect in the pleading. On this question, Lander J stated (at 593): In the ordinary course of events where a trial has taken place and a judgment entered, it is not difficult to determine whether the cause of action, the subject matter of a current set of proceedings, has been previously disposed of by a tribunal in circumstances which would give rise to a plea of res judicata. More difficulty arises in circumstances where the matter has not gone to trial and has not been formally adjudicated upon by a tribunal for reasons that there has been a withdrawal by one party before the matter has concluded, or the parties have agreed to a compromise, or judgment has been entered by reason of default of another party, or because the action has simply been dismissed. 1. His Honour continued (at 594-595): As to whether or not the dismissal of an action gives rise to a matter capable of being pleaded as res judicata, that may depend upon whether the dismissal of the action is seen to have necessarily involved a determination of any particular issue or question of fact of law. If it does not, then the dismissal decides nothing, except the dismissal of the action itself. 1. In the end, the Court allowed the appeal. Lander J found (at 596-597) that the only matter that had been decided in the earlier proceedings was whether the plaintiff's pleading disclosed a viable cause of action. There had been no finding as to any fact or as to the availability of any cause of action. For those reasons, his Honour held that the principle of res judicata had no application because it could not be said that the "cause of action in the first proceedings has merged into a judgment". 2. Dr Tjiong sought to draw an analogy with Rogers and submitted that Rein J had similarly dismissed the proceedings on 5 July without considering whether the underlying cause of action had been "defined". Therefore, so the submission ran, there was no determination on the merits. However, as Lander J observed (at 595, citations omitted): There are circumstances where a plea of res judicata will be good, even though there has been no investigation of the merits of the matter by the tribunal. In cases where consent orders or judgments are entered, notwithstanding that the court has been relieved of the obligation of carrying out the investigation, that consent judgment will operate as a bar to subsequent proceedings based on the same subject matter. 1. In my view, Rogers is distinguishable for the simple reason that the dismissal in that case was not consented to by the plaintiff. In the present case, not only did Dr Tjiong consent to Rein J's dismissal, but he did so having had the benefit of legal advice and representation. That fact alone is probably sufficient to conclude that the current proceedings are res judicata. 2. But there is a further point. Lander J in Rogers held that the proceedings were not res judicata because the earlier dismissal was based solely on the fact that the pleadings, on their face, did not disclose a proper cause of action. 3. In this case, if Rein J had simply dismissed the proceedings at the first hearing on 29 May on the basis that the pleadings were defective and needed to be re-drafted, then there might have been an analogy to draw with Rogers. But that is not what occurred. Instead, his Honour gave Dr Tjiong an opportunity to re-plead, following which there was a concession by his legal representatives that they could not do so. Presumably that was not because counsel had any difficulties articulating the cause of action in an amended version of the statement of claim, but because there was no proper cause of action to plead at all. 4. Seen in this context, the fact that the orders dismissing the proceedings contained an express note that Dr Tjiong's statement of claim "could not be re-pleaded on the causes of action brought in that document" shows that the dismissal was more than merely a dismissal on procedural grounds: see Spencer, Bower and Handley at [6.02]. In my view, the note constitutes, if not a finding by the Court, certainly an acknowledgement that following a review of the struck-out statement of claim by Dr Tjiong's legal representatives, the causes of action pleaded therein were not available to him. 5. Thus, unlike the impugned decision in Rogers, Rein J's determination did more than to simply decide the fact of the dismissal itself. For that reason, I am satisfied that the orders followed a determination on the merits and were sufficient to allow for a plea of res judicata in any subsequent proceedings brought by Dr Tjiong on the same cause of action. 6. Abuse of process: Even if I am wrong and the proceedings are not res judicata, they may still constitute an abuse of process: see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 519. In Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221 Lord Blackburn stated (in a passage that was later approved by the High Court in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 266): [F]rom early times (I rather think, though I have not looked at it enough to say, from the earliest times) the Court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse. 1. Metropolitan Bank concerned proceedings brought by Mr Pooley, who, following the liquidation of the Metropolitan Bank in March 1879, was adjudicated a bankrupt upon a debtor's summons issued by the petitioning creditor, Mr Toppin. An appeal by Mr Pooley against the adjudication was dismissed. He later applied to have the bankruptcy annulled, which was also refused. 2. Then, in July 1880, Mr Pooley commenced proceedings against the Royal Exchange Bank, the liquidator of the Metropolitan Bank and others seeking damages for fraudulently and maliciously causing the filing of a bankruptcy petition against him. At the trial in May 1881, a judgment of nonsuit was entered for the defendants. Mr Pooley later filed a summons against the liquidator and others for, among other things, unlawfully inciting and inducing Mr Toppin to file a petition and to prefer claims against Mr Pooley in the London Bankruptcy Court. That summons was also dismissed. 3. In December 1883 Mr Pooley filed another summons against the liquidator for damages for fraud and conspiracy, which was dismissed by a single judge. The Divisional Court then made an order staying the proceedings until the costs orders made in the earlier proceedings against the Royal Exchange Bank had been paid, on the ground that the two actions were substantially the same and concerned the same causes of action. The Court of Appeal overturned that order, holding that the parties were not substantially the same. The liquidator then appealed to the House of Lords. 4. The appeal was allowed and the action against the liquidator was dismissed. Lord Selborne LC, after finding that Mr Pooley's claim had no substance, concluded (at 220): But to that is to be added the fact, that the plaintiff brought another and a similar action in respect of the same matters … against other parties including the liquidator, I think in his personal capacity, on the 28th of July, 1880… That former action was permitted to proceed. Whether it might have been stopped or not it is not for us now to inquire. It proceeded and was brought to a conclusion. It was tried upon the merits, and in 1881, not quite three years before the present action was brought, it ended in a nonsuit upon the merits, the whole case entirely failing, and being adjudged against the bankrupt… It would be a scandal and disgrace to the administration of justice in this country, if such proceedings were permitted to be repeated, whether with some colourable variation of the dramatis personae or not. 1. Using similar language, Lord Halsbury LC later stated in Reichel v Magrath (1889) 14 App Cas 665 at 668: I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again… I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure. 1. As I have observed, Dr Tjiong has sought to propound substantially the same case against Katrina and Lindsay as he did in the earlier proceedings before Rein J. The fact that in these proceedings he seeks to invoke the Court's equitable jurisdiction in addition to its powers under the Rules makes no difference. To permit Dr Tjiong to bring the same claims against the same parties again would, I think, result in exactly the same sort of injustice to the defendants as in Metropolitan Bank and Reichel. For those reasons, I am satisfied that the proceedings amount to an abuse of process and should be dismissed. 2. Would the position have been different if Dr Tjiong had brought his claim by way of notice of motion in the original proceedings, rather than by way of separate proceedings? It is well established that the dismissal of an interlocutory application is not final and does not necessarily prevent a litigant from bringing the same application again: see Spencer, Bower and Handley at [5.32]. 3. In Nominal Defendant v Manning (2000) 50 NSWLR 139 at 155 [71]-[72]; 167 [122]-[124] the plaintiff's application was prima facie statute-barred. The plaintiff applied for an extension of time which was refused. The plaintiff then made a second application, relying upon further evidence. 4. The Court of Appeal acknowledged the existence of a general rule of practice that, if an interlocutory application has been made, a second application will not be permitted unless there has been a material change of circumstances. Nevertheless the Court held that the second application for an extension of time was permissible. 5. The Court emphasised, however, that it was not overturning the general rule against repeated interlocutory applications. Heydon JA stated (at 156 [72]): [A] litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602- 603) — the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs — and others — damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily — are evils which each court in its individual discretion will rightly strain to avoid. 1. But the legislative context has changed since Manning was decided. In Fletcher v Besser [2010] NSWCA 30 Sackville AJA observed (at [17]; with Allsop P agreeing at [2]): No submission has been made on the present leave application that the approach in Manning should be reconsidered having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005… For present purposes, it is enough to observe, without casting doubt on the correctness of Manning at the time it was decided, that the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application. 1. In the present case, I am not satisfied that there has been any relevant change of circumstances since Rein J's dismissal of the first fraud proceedings. The new evidence upon which Dr Tjiong seeks to rely (which I discuss in further detail when dealing with the pleading issue below) was available at the time of the earlier proceedings before Rein J. I think that, even if Dr Tjiong's application were treated as an interlocutory one, it falls foul of the rule against repeated interlocutory applications. I think this conclusion is reinforced by the guiding principles contained in CPA, s 56-60, as alluded to by Sackville AJA in Fletcher. Viability of statement of claim 1. The defendants' final ground for summary dismissal is that Dr Tjiong's statement of claim is, in any event, defective. In this section of the judgment I will focus on the most recent version of the pleading, being the proposed third further amended statement of claim lodged in February of this year. 2. The relief claimed is set out as follows (excluding orders for costs): 1. An Order pursuant to UCPR r 36.15(1) that the Judgment of the New South Wales Supreme Court in proceedings No. 2005/1453, entered on 4 June 2010 is null and void and be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 2. The Consent Orders of the New South Wales Supreme Court in proceedings No. 2005/1453 on 16 June 2009 be set aside as follows: Orders 2, 3, 4, 5 and 6. 3. Orders of the New South Wales Supreme Court in proceedings No. 2005/1453 entered on 7 July 2010 be set aside as follows: Orders 1, 2, 5, 6, 7, 8.3, and 9. 4. An Order pursuant to UCPR r 36.15(1) that the Orders of the Court of Appeal in proceedings No. 2005/257959 be set aside as the Judgment was procured by fraud and was given or entered or made irregularly, illegally or against good faith. 1. Although Dr Tjiong's original statement of claim, as amended on 4 October 2019, expressly did not seek an order setting aside the consent orders entered on 16 June 2009 (see [149] above), the proposed final version of his pleading does. I will begin first by dealing with the claim to set aside the judgment of Palmer J, before turning to the challenge to the consent orders and the judgment of the Court of Appeal. 2. As the High Court observed in Clone at [2] and [62], an action to set aside a judgment which has been entered requires "a pleading, and proof of, actual fraud". The gravamen of Dr Tjiong's claims is that he has discovered new evidence which proves that the judgment of Palmer J was procured by fraud on the part of Katrina and Lindsay. This fresh evidence, it is alleged, establishes that false and deceptive representations were made by Katrina and Lindsay during the hearing, and that they fraudulently concealed evidence from the Court. 3. Counsel for the defendants referred me to a number of well-established rules that must be complied with when pleading allegations of fraud. In summary, such claims must be clearly pleaded and properly particularised: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; the pleadings must specifically allege the acts involved and the manner in which they are said to have involved fraud: Redgrave v Hurd (1882) 20 Ch D 1 at 12; and the claims should not be expressed in general or ambiguous terms: J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31. 4. Counsel submitted that the cases put forward by Dr Tjiong in his existing, and proposed, statements of claim do not meet these requirements, and also fail to comply with the basic rules of pleading. I agree that the form of pleading in both the amended statement of claim dated 4 October 2019 and the proposed third further amended statement of claim dated 19 February 2021 is, in many respects, deficient. But for the moment I will concentrate on higher level issues with the claim. 5. Proof of actual fraud on the part of a litigant, while necessary, cannot on its own be sufficient. As James LJ (with the concurrence of Thesiger LJ) observed in Flower v Lloyd (1879) 10 Ch D 327 at 333-334: Where is litigation to end if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action the ground that perjury had been committed in the first action, or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the Plaintiffs had sustained on this appeal the judgment in their favour, the present Defendants, in their turn, might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subordination of perjury; and so the parties might go on alternatively ad infinitum. 1. Elsewhere in his judgment, his Lordship appeared to raise the possibility that the courts should simply not permit challenges to be made to their judgments in such circumstances. On the other hand, Baggallay LJ said (at 334): [W]hilst I am fully sensible of the evils and inconveniences which must arise from re-opening what are apparently final judgments between litigant parties, I desire to reserve for myself an opportunity of fully considering the question how, having regard to general principles and authority, it will be proper to deal with cases, if and when any such shall arise, in which it shall be clearly proved that a judgment has been obtained by the fraud of one of the parties, which judgment, but for such fraud, would have been in favour of the other party. I should much regret to feel myself compelled to hold that the Court had no power to deprive the successful but fraudulent party of the advantages to be derived from what he had so obtained by fraud. 1. His Lordship did not suggest that a mere allegation of fraud would be sufficient. Instead he posited that there might be a remedy if fraud is "clearly proved" and that fraud is causative, in the sense that, but for the fraud, the result would have been the other way. 2. Reflecting this tension, in later cases the courts have imposed additional control factors, beyond the allegations of actual fraud, so as to ensure that challenges can be made only in very limited circumstances. There is a need to preserve the "central and pervading tenet" of finality of litigation: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17. 3. Proof that the judgment under challenge was procured by fraud necessarily requires further evidence beyond that adduced at the first trial. One control factor is a requirement that the further evidence would have had a "material effect" on the decision. As Aikens LJ stated in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328 at [106]: [T]he relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be 'material'. 'Material' means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court's decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. 1. In some cases a second control factor can be identified. This is a requirement that, as well as being material, the new evidence could not with reasonable diligence have been obtained at the time of the earlier hearing: see Owens Bank Ltd v Bracco [1992] 2 AC 443 at 483-484. 2. I will refer more to these control factors when dealing with Dr Tjiong's pleaded allegations. His claims concern four main issues: (1) the 2001 File Note; (2) the 2005 payment to the Oninama Charitable Foundation; (3) the pilot's logbook; and (4) the Reeves claim. I will deal with each issue in turn. 3. The 2001 File Note: In summary, Dr Tjiong pleads the following allegations: 1. Between 20 and 22 December 2001, George had expressed a wish to make further provision out of his estate by way of testamentary trust, and those wishes were contemporaneously recorded by Dr Tjiong in the 2001 File Note. 2. During the original proceedings, Katrina and Lindsay denied that they gave informed consent to the creation of the Family Trust and claimed that they had been misled by Dr Tjiong about its nature and effect. 3. Implicit in Katrina and Lindsay's allegation that Dr Tjiong had fabricated the 2001 File Note was a denial on their part that George had any intention or wish to create the Family Trust at all. 4. At all material times, Katrina and Lindsay were aware that on 20 December 2001, Lindsay had been convicted by a stipendiary magistrate in the Northern Territory for unlawfully cultivating a trafficable quantity of cannabis (referred to by Dr Tjiong as "the material fact"). George was aware of the conviction when he discussed with Dr Tjiong the matters referred to in the 2001 File Note. Lindsay appealed from the decision in 2002, but was unsuccessful. Dr Tjiong was not aware of the material fact during the original proceedings and only became aware of it in 2016 when he was being investigated by the Department of Public Prosecutions for perjury. 5. Katrina and Lindsay were aware that the material fact corroborated the matters set out in the 2001 File Note and, on the basis that it was contrary to their case, knowingly failed to disclose it to the Court. 6. By failing to disclose the material fact, Katrina and Lindsay's entire case against Dr Tjiong was built on the false and misleading premise that George had no further testamentary wishes other than those that were set out in his will. They relied on that false premise to "unjustly attack" Dr Tjiong as to his evidence and credit. 7. Had the material fact been disclosed, it would have been open for the Court to find that the 2001 File Note was not a fabrication and George had in fact intended to establish the Family Trust. 1. As I have already mentioned, the consent orders effectively resolved in Katrina and Lindsay's favour their claims about the December 2003 transactions. But even without the consent orders, Palmer J found that Katrina and Lindsay would have succeeded anyway. In reaching this conclusion, his Honour focussed not on the 2001 File Note, but the fact that Dr Tjiong had told Katrina and Lindsay that their father's estate would be subject to a "huge tax bill" which could be avoided if George's assets were transferred to a trust before his death. His Honour concluded (at [135]) that had Dr Tjiong not submitted to the consent orders, the tax misrepresentation: would have been a sufficient basis for setting aside the Family Trust Deed or granting the other relief sought by the Plaintiffs, without the necessity of finding whether the other representations referred to in [11] [which included the content of the 2001 File Note] had been proved. 1. The File Note was, therefore, only ever relevant to Dr Tjiong's credit. But the finding that it had been fabricated was only one of the factors that Palmer J took into account in reaching his adverse conclusion. An array of factors were mentioned in the judgment (see [120]). 2. This makes it difficult to say now whether, if his Honour had not gone so far as to find that the File Note was fabricated, that would have had a "material" effect on his findings. Applying the test in Royal Bank of Scotland, there would be a question about whether it would have been sufficient to "entirely [change] the way in which the first court approached and came to its decision". But perhaps that test is too stringent in circumstances where a witness's credibility is concerned. 3. Of course the court cannot, and should not, re-try a case in order to determine issues of credit. But where credibility is in issue, the materiality test may be better expressed in terms that are consistent with what Lord Phillips MR said in Hamilton v Al Fayed (No 4) [2000] EWCA Civ 2012 at [34]: Where it is clearly established by fresh evidence that the Court was deliberately deceived in relation to the credibility of a witness, a fresh trial will be ordered where there is a real danger that this affected the outcome of the trial. 1. This passage was relied on in Salekipour v Parmar [2018] 2 WLR 1090 where it was contended for the appellant that the test in Royal Bank of Scotland set the bar too high. Although it was unnecessary to determine the issue, Sir Terence Etherton MR said that he was "inclined to agree" and that the proper approach was laid down by Lord Phillips MR in Hamilton: see T Grant and D Mumford, Civil Fraud: Law, Practice & Procedure (2018, Sweet & Maxwell) at [38-016]. 2. Earlier, Lord Buckmaster, speaking for the Privy Council, appears to have gone one step further in Hip Foong Hong when he said ([1918] AC at 894, emphasis added): If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be forseen, have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail. 1. This passage seems to suggest that even a relatively minor instance of fraud or "surprise" is sufficient to undo a judgment, although the scope of "surprise" in this context is unclear: see L A Sheridan, "Fraud and Surprise in Legal Proceedings" (1955) 18(5) Modern Law Review 441 at 446. Perhaps where issues of credibility are concerned, evidence of fraud, even if only of a minor character, is sufficient to cross the materiality threshold. 2. In the end, it is not necessary to resolve these doctrinal uncertainties. That is for three reasons. 3. First, the evidence on which Dr Tjiong relies is not "new" or "fresh" at all. The judgment of the Supreme Court of the Northern Territory, which revealed Lindsay's conviction, was delivered in 2002. It was publicly available at the time of the hearing before Palmer J and could, with reasonable diligence, have been obtained by Dr Tjiong. 4. Second, I am not at all convinced that the evidence actually goes as far as Dr Tjiong submitted. It is difficult to see how Lindsay's conviction of an offence on 20 December 2001 is relevant to, let alone proves, the genuineness of the File Note. The fact remains that the content of the File Note, which included detailed instructions as to how George's estate was purportedly to be administered, was completely contrary to the clear and simple terms of his will. If, between 20 and 22 December, George truly did express a desire to have a trust established and managed by Dr Tjiong, it makes no sense for that to have been left out of the will which was executed by him only a day later. In fact, if George had, as Dr Tjiong contends, been aware of Lindsay's conviction on 20 December, and that was one of the main reasons why he wanted to establish a trust, that would only make it more improbable that George would not have insisted that it be included in the will. 5. Finally, and most importantly, in order to succeed Dr Tjiong must prove actual fraud which can be brought home to Katrina and Lindsay. But neither of them was present at the time of the alleged conversation between Dr Tjiong and their father in December 2001. Accordingly, they had no first-hand knowledge as to whether the File Note accurately reflected what took place in that conversation (if in fact it occurred). Their testimony at the hearing before Palmer J did not go, and could not have gone, to that issue. 6. It is true that counsel for Katrina and Lindsay made submissions, which his Honour accepted, that the File Note was a fabrication. But that could not have been a fraud by Katrina and Lindsay, any more than it could have been a fraud by their counsel. 7. What this points up is that in order to make a successful case for fraud, Dr Tjiong would have to establish that Katrina and Lindsay gave false testimony, or suppressed the truth, about something of which they had direct knowledge. In the circumstances, that could only have been the conversation between them and Dr Tjiong in December 2003. That was the conversation which they relied on for their claim, and it was a conversation of which they had direct knowledge. But Dr Tjiong did not put his case that way. Instead, he was distracted by the successful collateral attack made on his credit through the File Note. The whole argument just illustrates how these proceedings have been shaped by Dr Tjiong's reaction to the credit findings recorded in the declarations, rather than the substance of the case made against him. 8. For these reasons, I am not satisfied that Dr Tjiong's allegations in relation to the File Note disclose any grounds for setting aside Palmer J's judgment. 9. Payment to the Oninama Charitable Foundation: I have already concluded that this aspect of Dr Tjiong's claim is, quite independently of his bankruptcy and the dismissal of his earlier application by Rein J, unsustainable. But for completeness I will address his pleaded allegations on the merits. 10. By way of summary, Dr Tjiong pleads that during the course of the original proceedings, he made a concession that he had acted in breach of the Family Trust by procuring the payment to the Oninama Charitable Foundation. But he alleges that this concession was made in ignorance of the "material fact" (being the fact of Lindsay's conviction). Had he been aware of the "material fact", he would not have made it. Instead, he was induced into making the concession by the "false and misleading acts" of Katrina and Lindsay. 11. The reasons why these allegations are untenable and disclose no real grounds for setting aside the relevant order may be stated briefly. In short, the "material fact" has no relevance whatsoever to the validity of the payment. Accepting Dr Tjiong's argument that George's awareness of Lindsay's conviction establishes the authenticity of the File Note, and that that in turn proves that the Family Trust was created in accordance with George's wishes, it still does not change the fact that the payment of $135,000 to the Foundation was made in breach of the terms of that Trust. The Foundation was not a beneficiary of the Trust, and neither were Dr Tjiong's mother or grandchildren, for whom the Foundation was established. 12. Even if Dr Tjiong, for his own reasons, would not have entered into the consent orders if he had been aware of Lindsay's conviction, that would not have prevented Palmer J from drawing his own conclusions as to the validity of the payment. His Honour's conclusion was that it constituted a breach of trust. I see no reason why disclosure of the "material fact" would have changed that. 13. The pilot's logbook: The allegations of fraud concerning the findings as to Dr Tjiong's pilot's logbook were not easy to follow. By way of summary, Dr Tjiong alleges: 1. Katrina misled the Court by denying that Dr Tijong had visited George in hospital on 26 March 1996, when she was aware that he did in fact visit George on that day. 2. Rather than admitting what they knew to be true, Katrina and Lindsay asserted that the pilot's logbook had been fabricated by Dr Tjiong. 3. Katrina and Lindsay made the false assertion for no other purpose than to discredit Dr Tjiong in respect of his evidence concerning the 2001 File Note and the establishment of the Family Trust. 4. Palmer J found that the logbook had been fabricated and made adverse findings as to Dr Tjiong's character. Those credit findings were used as further evidence to demonstrate that he had fabricated the 2001 File Note and had made misrepresentations concerning the nature and purpose of the Family Trust. 1. As with the 2001 File Note, the pilot's logbook was only ever relevant to Dr Tjiong's credit. Dr Tjiong claims that the adverse credit findings concerning the logbook flowed into the findings about the 2001 File Note and the Family Trust. He says that it was, in effect, the first in a line of dominos which caused the other parts of his case to topple over. 2. Again, it is difficult to say now whether a finding that the logbook was genuine would have had a "material" effect on Palmer J's credibility conclusions. But, as with the File Note, it is not necessary to make any determination on the issue. That is because I am not satisfied that Dr Tjiong can point to any new evidence which demonstrates fraud on the part of Katrina and Lindsay. 3. Dr Tjiong alleges that Katrina and Lindsay were, at the time of the hearing, aware of the fact that he had flown to Melbourne in March 1996, and that they had misled the Court in contending otherwise. But his pleadings contain no particulars as to the scope of such knowledge, or how they even came to have it. Instead, Dr Tjiong relies on records, including hospital notes, facsimiles and other medical records, to demonstrate that he had flown to Melbourne on the relevant dates. He also says that in 2016 he discovered missing certificates from the Civil Aviation Safety Authority ("CASA") which establish that the certifications in his pilot's logbook were correct. 4. The problem with this is that even if the records and missing CASA certificates prove what Dr Tjiong says they do, they would not establish any fraud on the part of Katrina or Lindsay. They would simply be evidence that could have been relied on by Dr Tjiong to support his defence in the original proceedings. 5. Finally, Dr Tjiong faces the same fundamental problem as he faced with his argument about the 2001 File Note. Again, Katrina and Lindsay had no first-hand knowledge about whether Dr Tjiong flew to Melbourne on the relevant date or not. All they did was, through their counsel, to make submissions based on the evidence at the hearing that the logbook was fabricated. Again the making of a submission is not fraudulent merely because the submission may in fact be incorrect. 6. The Reeves claim: Dr Tjiong maintains that he was not the author of the fabricated medical negligence claim against George's estate. He alleges that critical to the Court's conclusion in that regard were the adverse findings against him in relation to the 2001 File Note, the establishment of the Family Trust, and his pilot's logbook. He alleges that in finding that the Reeves claim had been fabricated by him, the Court was not aware that Katrina and Lindsay had withheld material evidence which supported his case and which proved the File Note was genuine. 7. The first point to note is that credibility was not the only factor Palmer J took into account in finding that Dr Tjiong was behind the Reeves claim. In support of that conclusion, His Honour relied on the following additional facts (at [108]-[118]): 1. The claim had the effect of preventing distribution from the Family Trust and estate to Katrina and Lindsay at a time when Dr Tjiong strongly wished to resist their demands for distribution. 2. It would have been "utterly irrational" for Katrina to have prevented the distribution which Katrina and Lindsay so urgently sought by making a false medical negligence claim. 3. Dr Tjiong's evidence as to certain aspects of the claim was contradictory and implausible. 4. The facts of the fabricated claim were copied from Black v Lipovac [1998] FCA 699, a case of medical negligence with which Dr Tjiong was very familiar. 5. The writer of the letters concerning the claim was familiar with medical terminology and treatment, and was also familiar with the firm of Maurice Blackman Cashman as specialists in medical negligence litigation. Dr Tjiong had both of these familiarities. 6. The writer of the letters gave as the return mailing address an address with which Dr Tjiong had a direct and immediate connection. 1. The adverse findings as to Dr Tjiong's credit were thus by no means the only, or necessarily the decisive, factor in the Court's finding. Therefore, even if Dr Tjiong's contentions about the File Note and logbook gave rise to an arguable case of fraud, there would still be a significant materiality issue. 2. In any event, it is somewhat unclear as to what material Dr Tjiong actually relies on to substantiate his allegations. Certainly Dr Tjiong alleges that in denying that she was responsible for the Reeves claim, Katrina, in effect, committed perjury. But a bare assertion that she perjured herself is, I think, insufficient. Indeed, it seems to be the very thing that James LJ warned against in Flower v Lloyd (see [201] above). 3. The statement of claim does refer to a number of additional facts which, in combination with the failure to disclose the "material fact", is said to demonstrate that it was Katrina who instigated or authored the Reeves claim. But it seems that those are points which could have been, and indeed some of them were, raised at both the original trial and in the Court of Appeal. They do not appear to arise out of any new or fresh evidence discovered since the proceedings came to an end. In my view, the present application is an inappropriate forum in which to resurrect and further debate such issues. 4. In the end, it is not necessary to express a definitive conclusion as to whether the allegations concerning the Reeves claim disclose any grounds on which to set aside the judgment of Palmer J. The claims appear to be premised on the findings concerning the 2001 File Note and the logbook. Given my earlier conclusions that those findings are not liable to be set aside, it seems that the foundation for Dr Tjiong's challenge concerning the Reeves claim has all but disappeared. At the very least, he would need to re-plead that part of his application. But given the proceedings must be dismissed for other reasons, it is not necessary to discuss the issue any further. 5. Consent orders: As I have noted, the consent orders entered into on 16 June 2009 had the effect of resolving the issues as to the establishment of the Family Trust and the payment of $135,000 to the Oninama Charitable Foundation. However, Dr Tjiong alleges that had he known about the fact of Lindsay's conviction during the proceedings, he would never have agreed to compromise those parts of the claims against him. 6. The first problem with this is that the pleadings contain no particulars directed to the process in which Dr Tjiong ultimately agreed to enter into the consent orders. In order to succeed, Dr Tjiong would need to establish that his decision was in some way affected by fraudulent conduct on the part of Katrina and Lindsay. A bare assertion that he would not have made the concessions had he known about Lindsay's conviction is not enough. 7. The compromise was made midway through the proceedings and at a time when there was intense disagreement between the parties as to key factual matters. Dr Tjiong would have been well aware of the fact that in the context of that dispute, there was likely information which he did not have which would have been of interest to him, but chose to compromise anyway. In those circumstances, it is difficult to accept that he was, in some way, misled into entering into the consent orders by any fraud on the part of the defendants. 8. In any event, even if Dr Tjiong did not agree to compromise those matters, it is difficult to see how that would have changed the ultimate outcome of Palmer J's judgment. His Honour independently found that the Family Trust had been established as a result of Dr Tjiong's fraud. It was also clear that the payment to the Oninama Charitable Foundation was a breach of trust. Thus, even without the consent orders, it is likely Dr Tjiong would have been replaced as trustee of the Family Trust and Foundation anyway. In those circumstances, I am not satisfied that there are any grounds to justify setting them aside. 9. Judgment of the Court of Appeal: The pleadings contain no particulars as to the specific acts of fraud that are said to have affected the judgment of the Court of Appeal. Instead, Dr Tjiong appears to suggest that if the original judgment of Palmer J was liable to be set aside for fraud, then as a natural consequence, so too would the judgment of the Court of Appeal. This approach is generally supported by what the learned authors of Civil Fraud: Law, Practice & Procedure say at [38-024]: Where the original judgment has been unsuccessfully appealed (without knowledge of the alleged fraud) the first instance court in the second action has jurisdiction to set aside both the original first instance judgment and the appellate order(s) upholding it. So in Kuwait Airways Corp v Iraqi Airways Co, David Steel J set aside a decision of the House of Lords on the ground that it had been procured by fraud. 1. With respect, I am not sure it is necessarily correct that the court in the second action has jurisdiction to set aside both the original and first instance judgments. It must be borne in mind that the court in the second action does not itself determine the underlying claim, or questions of costs. Those remain to be re-determined in the original proceedings which revive when the judgment is set aside. In principle, it would therefore seem that where there has been an appeal in the original action, the proper order would be to set aside the appellate decision only. This would then permit the appellate court to re-hear the appeal, taking the fresh evidence into account, and deal with the original judgment in the ordinary exercise of its appellate powers. 2. Kuwait Airways Corp v Iraqi Airways Co [2003] EWHC 31 (Comm), where there had been decisions in the High Court at first instance, in the Court of Appeal and then on further appeal to the House of Lords, is not inconsistent with this. David Steel J was only asked to set aside the decision of the House of Lords. His Lordship did not deal with the previous judgments of the Court of Appeal and the High Court. Although the orders his Lordship made do not appear from the approved judgment in its published form, presumably it would have been up to the House of Lords to make any consequential orders about the judgments below, and costs. 3. If this is correct, then arguably Dr Tjiong's application in the present case should have been confined to setting aside the judgment of the Court of Appeal and reinstating his appeal. But in the end, it is not necessary to resolve this doctrinal uncertainty. On the view which I have taken of the merits of Dr Tjiong's application, it makes no difference to the outcome. 4. Conclusions: For the reasons I have stated, it is clear that Dr Tjiong's statement of claim cannot stand. Leaving aside the justified criticisms of the form of the pleading, I have found that there is no basis for the challenges insofar as they rely on the 2001 File Note and the pilot's logbook. On any view, therefore, Dr Tjiong's application for leave to file his amended statement of claim must be refused and the existing statement of claim must be struck out. 5. In theory it would be open for the Court to consider whether to allow Dr Tjiong to make a further application to plead a viable statement of claim. But given the claims are res judicata and are, in any event, unmaintainable by Dr Tjiong, they must be dismissed anyway. Accordingly, there is no need to consider matters of pleading any further. 6. In reaching these conclusions, I have had regard to the parties' written submissions and the evidence filed over the course of the proceedings, including the most recent material received in October of this year. But in the end, much of the evidence was irrelevant to the questions to be determined on this application, or was simply evidence that could have been (and indeed some of it may have been) adduced in the original proceedings. 7. The evidence included contemporaneous letters, emails, file notes, minutes of meetings, photographs, medical records, phone logs and transcripts of unrelated matters. This material was certainly not relevant to the bankruptcy or res judicata issues, and given my conclusions on the form of the statement of claim, I found it unnecessary to analyse it in any great detail. Vexatious proceedings order 1. The defendants also seek an order pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) restraining Dr Tjiong from bringing further proceedings against them on any matter arising from George's estate or the Family Trust without the prior leave of the Court. Counsel for the defendants submitted that the order is justified on the basis that Dr Tjiong has filed three sets of proceedings against one or both of Katrina and Lindsay seeking, in effect, to re-litigate matters that were heard and determined by Palmer J. 2. The making of a vexatious proceedings order is a serious matter, as it deprives a litigant of access to the courts: Attorney General v Wilson [2010] NSWSC 1008 at [11]. The court's power is discretionary and the principles to be applied were summarised by Slattery J in Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595 at [36]-[57]. Specifically, his Honour noted (at [40]): Before exercising this statutory discretion the Court must be relevantly satisfied, under s 8(1), of three elements. These are that the person: (1) has "instituted or conducted"; (2) "vexatious proceedings"; and (3) the person has done so "frequently". 1. There is no dispute that Dr Tjiong has "instituted proceedings" as those terms are defined in ss 4 and 5 of the Act. It is also clear, given my findings, that the present proceedings are vexatious in nature. Section 6(a) defines what types of proceedings will qualify as vexatious and includes those that are "an abuse of the process of a court or tribunal". 2. But I am not satisfied that Dr Tjiong has instituted proceedings of this type with the level of frequency necessary to justify the making of an order under s 8. As Slattery J observed in Singh (at [53]), the term "frequently" must be measured by "more than just the counting of the number of actions brought". His Honour continued (at [54]): The term "frequently" has been described as "a relative term" which must be looked at in the context of the litigation being considered: Gargan (No. 2) at [7]. But considering comparative frequency in other cases where Vexatious Proceedings Act orders have been made can be useful. Examples of the institution of vexatious proceedings recurring sufficiently often to qualify as occurring "frequently" are: (1) the institution of proceedings on a monthly basis over ten years totalling 124 proceedings (Crocker at [136]); (2) instituting 14 separate Supreme Court actions in eleven years (Wilson at [46]); and (3) instituting 37 separate applications in various courts and tribunals against a variety of defendants over a period of 3 years (Attorney General v Tareq Altaranesi [2013] NSWSC 63). 1. Of the three proceedings upon which the defendants rely, the first fraud proceedings were dismissed at an early stage, effectively by consent. The Burwood Trust proceedings were also dismissed at an early stage because Dr Tjiong's bankruptcy deprived him of standing. Only the present proceedings definitely fall within the definition of vexatious proceedings, and the reason they do is that they involve an attempt to relitigate the first fraud proceedings. They would not necessarily have satisfied the definition if that element had not been present. 2. Even if the first fraud proceedings could be treated as having been so unsustainable as to have amounted to an abuse of process, I think the course of Dr Tjiong's recent litigation would fall well short of satisfying the frequency requirement in s 8. It must be acknowledged that in the fraud proceedings Dr Tjiong has been trying to persuade the Court to exercise its accepted power to set aside its previous orders; he has not made a direct attempt to relitigate the proceedings which resulted in Palmer J's judgment. 3. In my view s 8 is directed at litigants who repeatedly institute proceedings based on claims which have been demonstrated, clearly, in earlier proceedings to be unfounded. To this point, Dr Tjiong's conduct does not exhibit that element of defiance or wrong-headedness. 4. For these reasons, I decline to make an order under s 8(7)(b) of the Vexatious Proceedings Act restraining Dr Tjiong from instituting further proceedings. This, of course, should not be taken as any encouragement to Dr Tjiong to begin any further litigation against Katrina or Lindsay, or anyone else, arising out his brother's affairs. Costs 1. I have concluded that the proceedings should be dismissed. In principle, there is no reason why costs should not follow the event. 2. The defendants contend that this is an appropriate case for the award of indemnity costs. I have found that Dr Tjiong had no standing to bring the proceedings, and that the proceedings are in any event an abuse of process. Ordinarily, that would give rise to a reasonably strong case for indemnity costs: see Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362. 3. But in the present case the defendants bear some responsibility for the level of costs they have incurred. They raised and then abandoned points which I have ultimately found to be good. And although much of the delay has been caused by Dr Tjiong's multiple attempts at re-drafting his statement of claim, the adjournments on 13 August and 10 November last year were occasioned by lack of preparedness on the defendants' part. 4. More broadly, I have already made the point that, rather than seeking leave from the Federal Circuit Court to apply to have the proceedings summarily dismissed by this Court, the defendants could have raised the bankruptcy issues for direct determination by the Federal Circuit Court (see [41] and [133] above). On the conclusions I have reached about the effect of Dr Tjiong's bankruptcy, the motions with which I am concerned would have been avoided. 5. Taking these matters together, I decline to order indemnity costs in favour of the defendants. I will order that Dr Tjiong pay their costs on the ordinary basis, excluding the costs thrown away by reason of the adjournments on 13 August and 10 November last year. 6. The defendants' final prayer for relief is for leave to file an application seeking a gross sum costs order. But CPA, s 98(4)(c), which empowers the court to make an order for costs in a specified gross sum instead of assessed costs, does not require leave. Pursuant to that section, the defendants may, if they wish, apply for such an order at any time before the costs are referred for assessment. Orders 1. The orders of the Court on the plaintiff's notice of motion filed 31 July 2020 are: 1. Order that the motion be dismissed. 1. The orders of the Court on the defendants' notice of motion filed 10 March 2020 are: 1. Order that the proceedings be dismissed. 2. Order that the motion be otherwise dismissed. 3. Order that the plaintiff pay the defendants' costs of the proceedings (including the costs of the motions) on the ordinary basis, excluding any costs thrown away by reason of the adjournments on 13 August and 10 November 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2021