Case: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1371
Outcome: cited
The application which succeeded before her Honour highlighted an identity between paras 1, 2, 3, 4, 6 and 7 of the "Details of claim" and para 2 and para 3 in the "claim for Interlocutory Relief" with the proceeding the subject of the judgment delivered by Spender J in Rogers v Asset Loan Pty Ltd [2007] FCA 1371. To this extent, it was submitted that the present proceeding was an abuse of process, an attempt to re-litigate a proceeding already determined. Further and in any event, the present Respondents submitted that Mrs Rogers had no reasonable prospect of success such that the proceeding should be dismissed pursuant to the power conferred on the Court by s 31A of the Federal Court of Australia Act . 24 Collier J conducted an analysis of the relief sought in the application, the claims made by Mrs Rogers in the present proceeding and that which she had sought and made in an earlier proceeding in this Court - proceeding QUD525/2005. In that earlier case, q v Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1371 , at [9], Spender J had observed of Mrs Rogers' application: "9 It is difficult to avoid the conclusion that these proceedings in the name of Lynne Maree Rogers have been instituted, and then resurrected, because earlier proceedings brought by the applicant's husband were the subject of orders of dismissal in the light of the bankruptcy of Gregory Rogers and the decision by his trustee in bankruptcy not to pursue those proceedings." 26 In Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1371 , at [36] to [48] Spender J summarily stated his conclusions in respect of proceeding QUD525/2005, having regard to earlier and other proceedings which had been filed in this Court and elsewhere by Mrs Rogers or, as the case may be, Mr Rogers. It is instructive to reproduce his Honour's summary: "36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. ... 38 Notwithstanding the voluminous material in the Statement of Claim, the concern of Mrs Rogers in these proceedings as at December 2005 was directed at obtaining orders in relation to property at Fingal in New South Wales, which had been the subject of orders of the New South Wales Supreme Court in the matter 5702/2005. 39 In the proceedings before me, Mrs Rogers alleged that the respondents were seeking to enforce an improperly obtained consent judgment and writ in respect of the Fingal property. The respondents acknowledged that the judgment entered in the New South Wales Supreme Court did not accord with the terms upon which the respondent in the New South Wales matter, namely Mrs Rogers, consented to judgment being entered against her. 40 I was informed that Mrs Rogers had applied for that judgment to be set aside, and I was told by the respondents that they had agreed to consent to that judgment being set aside. 41 There was no agreement or acknowledgment by or on behalf of the respondents that they would consent to a variation of the judgment in the New South Wales Supreme Court so as to accord with the terms upon which Mrs Rogers had consented to judgment being entered against her. 42 It is in that context that the conduct of Mr Rogers, on behalf of his wife, on 12 December 2005, has to be judged. 43 Mr Rogers is in error when he asserted, as he did on 12 October 2006, that: "The solicitors for the respondents undertook to, your Honour, not to set aside that fraudulent judgment, but to place in lieu of that judgment, the correct judgment that the deed anticipated." (transcript of proceedings, p9). 44 Looking at the matter broadly, the allegations of Mrs Rogers in the Statement of Claim filed in proceedings QUD525/2005, are substantially the same as the allegations set out in Mr Rogers' Amended Statement of Claim in the matter QUD130/2006 filed by him in that proceeding on or about 20 July 2006. That Further Amended Statement of Claim comprised some 706 paragraphs. 45 Having regard to the detailed consideration of the allegations in Mr Rogers' proceedings, QUD130/2006, it is right to order that these proceedings by Lynne Maree Rogers against each of the respondents be dismissed, and that the applicant pay the respondents' costs of and incidental to those proceedings and the Notices of Motion. 46 In addition to the reasons contained in Collier Js reasons for judgment in proceedings QUD130/2006, it should be noted that by a deed of settlement dated 4 August 2006, Mrs Rogers acknowledged that loan moneys borrowed by Mr Rogers and Living Space Holdings Pty Ltd from Asset Loan Company Pty Ltd had been secured by, amongst other things, guarantees provided by Lynne Rogers. Mrs Rogers had provided security and the registered mortgagee was entitled to pursue its rights pursuant to that mortgage. 47 It seems to me plain that the present Statement of Claim has to be seen against the deliberate decision on Mrs Rogers' behalf on 12 December 2005 to ask the New South Wales Supreme Court to dismiss her application in respect of the judgment. 48 It is true that the judgment, as recorded, involved a typographical error, which does not reflect the consent given by Mrs Rogers to the making of that judgment, but the offer by the respondents in that proceeding to have the judgment set aside was not acceded to by Mrs Rogers." 27 Collier J noted that the consumer protection provisions of the ASIC Act , called in aid by Mrs Rogers in the present proceeding, replicated those found in the Trade Practices Act and were associated with the transfer of responsibility for consumer protection functions in relation to financial services from the Australian Competition and Consumer Commission to the Australian Securities and Investments Commission: She further noted (at [16]) that there were two differences between the application which Mrs Rogers filed in the present proceeding and her application which became the subject of the orders made by Spender J in QUD525/2005: "1. First, the substantive application in QUD525/2005 purported to be a claim for relief under the Trade Practices Act 1974 (Cth) while the proceedings before me purport to be brought under the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"). 2. Second, whereas in the substantive application before me the applicant seeks as relief an order to set aside a bankruptcy notice filed by the second respondent on the grounds of a set off or counterclaim, and by way of interlocutory relief an order extending time to comply with that bankruptcy notice, no such relief was sought in the substantive application in QUD525/2005." 28 Strictly speaking, with respect, there was a third difference. Mr Whittle was not a Respondent to Mrs Rogers' application in QUD525/2005. However, the addition of Mr Whittle as a party seems to me to have been quite gratuitous. The omission by her Honour expressly to note this further difference does not detract from the conclusions which she reached as to what ought to be the fate of the present proceeding. 29 Mrs Rogers' contended that her Honour erroneously found that she was a bankrupt. That is incorrect. There is no such finding. What her Honour did find was that Mrs Rogers could be viewed as a proxy for her husband whose bankruptcy inhibited his ability to pursue his alleged grievances against one or more of the Respondents. As the above chronology and a study of the proceedings referred to demonstrate, the temporal connections between the litigation of husband and wife are striking. 30 It is a given that husband and wife are not one in the eyes of the law and that, in relation to the provision of financial services, the ASIC Act confers causes of action that are no longer to be found in the Trade Practices Act . Her Honour did not find to the contrary. Rather, having regard to what were alleged in Mrs Rogers' affidavit to be the underlying facts, matters and circumstances, she was of the opinion that Mrs Rogers was, in substance, attempting to re-litigate matters decided by Spender J in QUD525/2005. Further and in any event, but again having regard to the reasons for judgment of Spender J in that case, her Honour was also of the view that the calling in aid of the ASIC Act , rather than the Trade Practices Act , would not make Mrs Rogers any more successful. I agree. I regard the remarks made by Spender J at paras 46, 47 and 48 of his reasons for judgment in QUD525/2005, quoted above, as particularly apposite. In terms of s 31A of the Federal Court of Australia Act , Mrs Rogers has no reasonable prospect of successfully prosecuting her latest proceeding.