COHEN v BELGRAVE INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and Cripps JJA 24 May 1993, 2 July 1993 [1993] NSWCA 65 The applicant sought to have a judgment made against him set aside claiming that his defence has never been adjudicated upon its merits. The applicant was restrained from taking this action by Finlay J. The applicant here sought to have Finlay J's orders set aside. Priestley JA In September 1988 a judgment was entered against Mr Cohen, the claimant in these proceedings, in favour of Belgrave Industries Pty Ltd ("Belgrave"), the principal opponent in these proceedings. The amount of the judgment was in the order of $10,000. The judgment has not been satisfied. Leaving aside the form in which available procedures have caused Mr Cohen to present his application to this court, what he tells the court is that he does not owe anything to Belgrave, his defence to Belgrave's claim has never been heard on the merits, and the court should do what is necessary to set aside the judgment against him so that he can have his defence adjudicated upon its merits. Again leaving aside the forms in which the effect of this court's decision on Mr Cohen's application should be framed, the answer to his application is that he has had a number of opportunities of having his defence adjudicated on by a competent tribunal, he did not use those opportunities, except on one occasion, when in May 1990 the merits of his case were examined, he gave evidence and was not believed, and, in a real way, lost on the merits. That loss was the subject of an appeal by way of stated case heard by Allen J in 1991. Allen J gave careful consideration to Mr Cohen's submissions, which were presented by counsel, and on 25 November 1991 published reasons for dismissing the appeal. Those reasons are quite lengthy and set out the technical and substantial history to the date of that judgment. Mr Cohen sought leave to appeal from Allen J's decision to this court. This application was presented by counsel. It was dismissed on | June 1992. Mr Cohen then took further proceedings aimed at having the judgment set aside so his defence, as he asserts, might be heard on its merits. Belgrave then applied to this court to restrain Mr Cohen from going further with those proceedings. Finlay J ordered that Mr Cohen be restrained from going ahead with those proceedings and further ordered that he be restrained from starting any more proceedings to set aside the judgment without leave of the Supreme Court. the present proceedings before this court Mr Cohen seeks to have Finlay J's orders set aside. I have not recited the full legal detail or used the technical names of all the steps that have been taken in court by Mr Cohen in his efforts to defeat Belgrave's claim against him. There is no need to say again what has been said on two occasions by single judges of this court and on one occasion by the Court of Appeal. All the necessary details appear in the reasons of Allen J and Finlay J. All that needs to be repeated on this occasion is that in May 1990 Mr Cohen gave evidence in the Local Court before a magistrate, Mr Gould, that Mr Gould listened to what he had to say in trying to persuade Mr Gould of certain facts, 2 UNREPORTED JUDGMENTS which if proved would have established a defence and that Mr Gould concluded that he was not satisfied that Mr Cohen believed in the truth of those facts. That having happened, I do not think Mr Cohen is right in saying that he has never had a hearing on the merits, but I think it was right that Finlay J made orders preventing him from continuing his efforts to litigate an issue which the law must treat as closed. In my opinion Mr Cohen's proceedings in this court must be dismissed with costs. Clarke JA I agree with Priestley JA. Cripps JA I agree with Priestley JA. The applicant's proceedings in the Court of Appeal dismissed with costs. Counsel for the Appellant: Appeared in person Instructed by: In person Counsel for the Respondent: G Rundle Instructed by: Hemphill and Co