Case: Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660
Outcome: cited
By coincidence, in the ordinary operation of this Court's docket system, it has fallen to me (in QUD375/2007) to decide whether to grant to Mrs Rogers leave to appeal in respect of some of her litigation namely, proceeding QUD173/2007, Rogers v Asset Loan Pty Ltd and Ors [2007] FCA 1660 , 1 November 2007, Collier J. There was no objection made to my having each matter. Nonetheless, I have expressly considered whether, in light of that coincidence and the conclusion reached by me in the preceding paragraph, I ought not to hear one of the applications made with respect to Mr and Mrs Rogers' respective proceedings with the other being transferred to another judge to hear and determine. In my opinion, the rules of natural justice do not require that course to be taken. 9 In the substantive application filed in this proceeding Mr Rogers seeks the following relief: (a) orders under s 12GF of the Australian Securities and Investment Commission Act 2001 (Cth) (" ASIC Act ") being damages for "psychological stress, pain and suffering or mental damage" for breaches of the following sections of the ASIC Act : (i) unconscionable conduct s 12CA-CC; (ii) undue harassment and coercion s 12DJ; (iii) deceptive and misleading conduct s 12DA; (Mr Rogers relies upon s 12GH of the ASIC Act conduct by directors, employees or agents.) (b) any other orders that the Court deems fit. 10 In my reasons for judgment in relation to Mrs Rogers' leave to appeal application I describe the ultimate origins and chronicle the course of the other litigation which Mr Rogers and later his wife have come to institute or with which they have come to be involved in this and other courts. I have studied the affidavit which Mr Rogers came to swear and file in this proceeding on 1 November 2007 in support of the substantive application. In that affidavit he deposes to a series of alleged "events". Having regard to that affidavit and to the other evidence before me in this proceeding, it is evident that the substantive application and Mrs Rogers' leave to appeal application have like ultimate origins and that the course of the other litigation is likewise relevant. So as to make these reasons for judgment self-contained I have, instead of just incorporating my description and a related chronology by reference from the reasons for judgment in Mrs Rogers' case, again reproduced them in what follows. 16 Further detail concerning relevant events is given in the following chronology: CHRONOLOGY Date Event 2003/2004 Mr Rogers and Livingspace Holdings, borrowed monies from ALCPL. The monies were secured by, amongst other things, guarantees from Mr Rogers, Mrs Rogers and Ms Braas. 13.07.04 ALCPL, by its solicitors, issued a Letter of Demand to Mr Rogers demanding repayment of his indebtedness to it under his guarantee. 20.07.04 Mr Rogers commenced proceeding QUD136/2004 against the present First to Sixth Respondents. The parties appeared before Justice Spender on 28 July 2004, and the proceedings were adjourned to 10 August 2004. 04.08.04 Proceeding QUD136/2004 settled pursuant to the terms of a Deed of Settlement ("First Deed") executed by the parties, including the Applicant and Ms Brass. Proceeding QUD136/2004 was discontinued by Mr Rogers as provided for under the First Deed. 08.11.04 Mr Rogers commenced proceeding QUD224/2004 against the present First to Sixth Respondents, seeking substantially the same relief claimed by him in QUD136/2004. 08.12.04 Proceeding QUD224/2004 heard by Justice Spender, who declined to make interim orders in terms of those sought by Mr Rogers. His Honour made directions for the future conduct of the proceeding and set it down for hearing for 4 days commencing 23 May 2005. 20.12.04 Mr Rogers commences proceeding QUD275/2004 by way of an appeal against Justice Spender's decision on 8 December 2004 to refuse to grant the interlocutory relief sought in QUD224/2004. 23.02.05 Mr Rogers declared bankrupt on the petition of Dale &amp; Myers Timber Trade Centre Pty Ltd. 01.03.05 The solicitors for the Respondents to QUD224/2004 request Mr Rogers' trustee in bankruptcy to make an election pursuant to s 60 Bankruptcy Act 1966 (Cth) (" Bankruptcy Act "). 08.09.05 Mrs Rogers consents to judgment against her in favour of ALCPL in proceeding 1600/2005 in the New South Wales Supreme Court. By these proceedings the Second Respondent sought possession a property at 2 Wommin Lake Crescent, Fingal Head. 06.10.05 Matter QUD224/2004 was struck out by Justice Spender on the basis that the action was deemed abandoned pursuant to s 60 Bankruptcy Act 1966 . 26.10.05 Matter QUD275/2004 was struck out by Justice Spender on the basis that the appeal was nugatory. 30.11.05 Mrs Rogers commenced proceeding QUD525/2005 against the First to Sixth Respondents, relying on virtually identical facts, matters and circumstances alleged by Mr Rogers in QUD136/2004 and QUD224/2004. 05.12.05 Mr Rogers applied to reinstate QUD224/2004. Justice Spender declined to reinstate the proceedings. 07.04.06 Mr Rogers commenced proceedings QUD130/2006, relying on virtually identical facts, matters and circumstances as those previously alleged by Mrs Rogers and him in previous matters in the Federal Court. 20.04.06 Justice Greenwood dismissed the application for interlocutory relief and reserved costs in proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434. 12.10.06 The Respondents in proceeding QUD525/2005 apply for the proceeding to be dismissed or permanently stayed. Justice Spender reserved his decision. 07.12.06 Justice Collier dismissed the balance of proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 1708. 15.12.06 Mr Rogers commenced proceeding QUD504/2006 by way of an appeal against Justice Collier's decision in QUD130/2006. 23.02.07 Matter QUD504/2006 dismissed by Justice Greenwood: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195. 14.06.07 Mrs Rogers commenced proceeding QUD173/2007 against the First to Seventh Respondents, seeking virtually the same relief claimed in proceeding QUD525/2005 (which as at the time remained reserved by Spender J) and relief on the same facts, matters and circumstances. 30.08.07 Justice Spender dismissed proceeding QUD525/2005, with costs. Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1371. 01.11.07 Justice Collier dismissed proceeding QUD173/2007, with costs. Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1660. 08.11.07 Mrs Rogers commenced proceeding QUD375/2007 against the First to Seventh Respondents in which she seeks leave to appeal against the decision of Justice Collier in QUD173/2007. 32 It is no coincidence that this proceeding, with additional Respondents, including Mr Whittle, who had not hitherto featured in Mr Rogers' litigation, came to be instituted after de Jersey CJ made his orders and on the same day that Collier J dismissed an application brought on 14 June 2007 by Mrs Rogers against those who are the present First to Seventh Respondents: Rogers v Asset Loan Co Pty Ltd [2007] FCA 1660 , 1 November 2007. I note that, in those proceedings (at [38] &amp; [39]), Collier J reached a like conclusion in relation to circumvention when ordering the removal from that file of affidavits sworn by Mr and Mrs Rogers respectively. If nothing else, for like reasons, a like fate in these proceedings should be visited on Mr Rogers' affidavit of 1 November 2007 pursuant to O 14 r 8 of the Federal Court Rules .