INTRODUCTION OF HISTORY:
1.1 It appears from the history of executable judgement that the
roots of law pointed to the common law history of England. It is not wrong to
conclude that the common law was rooted in the colonial history of England interchangeably
Europe. The aim of this page is a bit different. When the law of fraud enters
the "court of law", it encompasses a little bit more from the facts. This page is aimed to understand the concept of actual fraud[s] or their general legal principles. At [3] of this page also gathered successful case laws under certain variations/types of actual frauds that were accepted on the court with final relief [fraud is infinite in varieties]. I took the liberty to include some precedents from criminal proceedings against perjury that are relevant to understand the law of fraud or apparently actual fraud even though the only conflict is the standard of proof to establish fraud [(beyond reasonable doubt v. reasonably satisfactory)]. It will lead to decades of bad arguments if we think that the general legal principle[s] to deal with all fraud cases can vary or can be different whether coming by the provision of parliament or not. [example: if the fraud is misrepresentation then no due diligence is required but if the fraud is perjury then due diligence is required to discover the fraud in the original proceeding]. High Court of Australia affirms it is not. [read only: Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12; at [66 - 68]. Toubia v Schwenke (2002) 54 NSWLR 46; NICK ZARDO v MATE IVANCIC [2003] ACTSC 32.]. I would enter the history/equity from centuries back, like the court judgments. [Bandon v. Becher7 (1835) 3 Cl. & Fin. 479 [6 E.R. 1517]; ’if brought into a dispute at all, should be brought into dispute in the Court where it was originally pronounced…..I must add...you may at all time, in a Court of competent jurisdiction, where you appear as an actor, object to a decree made in another Court, upon which decree your adversary relies; and you may, either as an actor or defender, object to the validity of that decree, provided it was pronounced through fraud, contrivance, or covin of any description,…..:-'' A sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled ;-in order to make a sentence there must be a real interest a real argument a real decision, Of all these requisites not one takes place in the case of a fraudulent and collusive suit; here is no Judge, but a person invested with the ensigns of a judicial office, misemployed in listening to a fictitious cause proposed to him; there is no party litigating there is no party defendant no real interest brought into question."] [see also: Reddaway v Banham [1896] UKLawRpAC 18; at [221]; “But fraud is infinite in variety; sometimes it is audacious and unblushing ; sometimes it pays a sort of homage to virtue, and then it is modest and retiring ; it would be honesty itself if it could only afford it. But fraud is fraud all the same; and it is the fraud, not the manner of it, which calls for the interposition of the Court.”] [add: SZFDE v Minister for Immigration and Citizenship, [2007] HCA 35; at [8, 15]. It is also necessary to advance law about general legal principle that [fresh new evidence is always welcomed] in a case of fraud. The Duchess of Kingston's Case (1776) EngR 16; “A sentence of jactitation of marriage is not conclusive evidence against an indictment of bigamy, for its validity may be impeached, as having been obtained by fraud or collusion”. [DPP v Moseley [2013] NTSC 8; McCann v Parsons [1954] HCA 70.]. In the clone pty Ltd case, the high court redefined the law of fraud and advised The Duchess of Kingston's Case was a case of actual fraud. A simple tests about taking fresh new evidence followed from the beginning of the history. The new fact must be so material that result would have different. Apparently the fact wasn’t known to the court so the alleged fraud generated the judgment. Also the pleading alone can prove result would have been different always a fresh new fact for the court[ Luxford v. Reeves, [1941] V.L.R. 118]. As it is mentioned above fraud is infinite in variety, some frauds knowingly do not submit some inadmissible collateral evidence to the court [which normally invites the court to fall into a bundle of errors of law] and later pretend in the court that they had arguments/collateral which put the other party in unfair consequence will also proof dishonesty or concealment of material fact mislead everyone. I must warn you if you rely on [informal evidence] [informal = no collateral, no qualification, no reservation, baseless]. Sometimes court accepts the evidence informally/provisionally and then embarks on other inquiries does not mean that the court applied any base or principle on its own motion. This type of evidence usually entered the [justice system] to make it commercially profitable, you are aware that you are liable for your own wrong, not the justice system [REJFEK v. McELROY [1965] HCA 46]; at [13]; Murdaca v Maisano, [2004] VSCA 123; at [10-16]]. [Court has liberty to deceive] court describes it as court had enough reasons to be deviced. When the cheated party brings a claim of fraud the culprit falls from the skyscraper they build with lies without principle/base, qualification, reservation, or collateral like all the others. It is a general rule that parties hold their own duties and liabilities to disclose all material facts about their case before the court proceeds to judgment so that the other party can respond meaningfully. [Brookfield v Yevad Products Pty Ltd [2004]FCA 1164; at [390, 405-408, 414-417] - imperative demand/ imperative duty - inside the court. Drinkwater v Nadinic, [2016] NSWSC 1733; at [1-2, 38-40] - fiduciary duty - outside the court][Commonwealth Bank of Australia v Quade (1991) 102 ALR 487 at [7, 9] - procedural requirment]. It is an imperative/procedural requirement [whether an order for discovery exists or not], on all occasions, the court will generally believe [without collateral, qualification, reservation] that parties performed their imperative honestly and no material facts have been concealed or remained undisclosed. A case of misconduct/concealment of fact always constitutes that the accused did not perform their imperative duty. Accused also holds the responsibility to inform the court before judgment if they are unable to disclose any material fact to the other party for any reason to avoid conviction of misconduct/concealment of fact from the court. [Material concealment] always misleads the opponent and court, miscarries the case, and affects the judgment severely. If a convict pursues the court to embark on a fact keeping that fact undisclosed to the cheated party, it will invalidate the jurisdiction of the court to embark on that fact. The court will apparently find the known/intentional contrivance of the convict to embark the court on that fact knowingly. The court will also find jurisdiction was invoked by fraud or misconduct and the court was misled by concealment/misconduct. In this case [McCann v Parsons [1954] HCA 70] the woman did not inform the court (concealed) that she was driving the car, so the court believed that she was not driving the car and embarked on another fact in the process. When the police came with witnesses that they saw her driving the car, the court found her guilty of concealing the material fact from the court. Court also found that she misled the court by concealing the fact. In a case of misconduct, the court observes conduct from the perspective, if the result would have been different in presence of fresh new evidence [Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596; at [106]]. In the event of fresh new action for fraud or fresh new evidence court will only reopen the cases where undisclosed/concealed fact is material/vital. Given the above [imperative duties] of the parties, the core rule for [misconduct/concealment of material fact] described by the High Court of Australia [Commonwealth Bank of Australia v Quade (1991) 102 ALR 487 at [7, 9] - definition of concealment] which encompasses any material fact without boundary which has a [material effect in the judgment]. In [a case of fresh new evidence only / alone], the plaintiff must establish that the evidence was not possible to discover with due diligence and present in the original proceeding. In this case, the fresh new evidence does not need to prove any fraud but needs to prove that the evidence is so material that the [result would have been different] if the evidence was submitted in the original proceeding. In a case of misconduct, fresh new evidence is discovered from the possession of the accused. As usual, in a case of false statement /perjury as actual fraud, the defendant’s onus is to prove that their statement/ evidence was not false in the light of material [evidence in the case] (did not mislead/deceive the court or not perjured or known to be true to them). Similarly, a misrepresentation also involves an [untruthful statement or evidence] (ex: someone representing undervalue of his property in a divorce proceeding). In the case of fraud, it is always the job of the court to find the truth in the first instance. I also advance authorities where some procedures followed, in general, to establish fraud/contrivance in civil proceedings, which are repeated in the following paragraphs. [Reality: Barnesly v Powel [1748] EngR 386; Barnesly v Powel [1749] EngR, [1749] EngR 122 . Corroborative evidence: REJFEK v. McELROY [1965] HCA 46] ; at [13]. Convincing evidence: Odyssey Re (London) Ltd & Anor v OIC Run-Off Ltd [2000] EWCA Civ 71. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66 . Actual knowledge: Tricor PLC (formerly PNC Telecom PLC) v Revenue & Customs [2014] UKFTT 241 (TC); at [39]; [When fact changes, court changes its mind]: Shao v Minister for Justice and Equality (No. 2) [2020] IEHC 68; at [25, 28]]. Probability: In law, [probability] does not arise without material evidence in the case largely inadmissible. Thoughts, assumptions, opinions, and discourse are [imaginations] in law [REJFEK v. McELROY [1965] HCA 46]; at [13]; Murdaca v Maisano, [2004] VSCA 123; at [10-16]]. [Read only: read false or misleading statements in criminal proceedings.] If we travel back to the oldest written law in history, that would be 4500BC known as the [Ten Commandments] in independent states of the Middle East ( you shall not kill, lie, steal, commit adultery, become false witness, covet your neighbor’s wife, covet your neighbor’s goods)]. There must not be any confusion about the history that frauds coming by the provision, common law, or any other name, all successful authorities are precedents of [actual fraud]. The high court of Australia affirmed the application at the beginning of history referring to a case law from 1867 [read only- Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12; at [55]] also affirmed [The Duchess of Kingston's Case (1776) EngR 16] is a case of actual fraud. [on this page read-only cases are unsuccessful cases].
[Actual Frauds]
"fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. Mere constructive fraud not originating in actual contrivance, but consisting of acts tending possibly to deceive or mislead without any such intention or contrivance, would probably not be sufficient"
1.2 In the root of "the law of fraud" there is
some form of dishonesty or lie or breach of trust [breach of fiduciary
duty], [perjury as of lie] is the starting point of the law of
fraud. Courts define it as conscious/deliberate dishonesty, not as equitable/constructive dishonesty. In history, fraud entered the court with [forgery/falsification]
to acquire wealth. Perjury or false swearing sometimes amounts to [misrepresentation], forgery/falsification
also results in perjury on the court. [Misleading and deceptive conduct] may occur from untruthful statements. Concealment of evidence as a contrivance possibly by perjury defined as [misconduct/ fraud] on the court may also deceive/mislead the court, but the materiality of the evidence is crucial to proof [result would have
been different]. I must conclude my observation from this research, " perjury/fraud is a self-generated device, once the convict presses the button, it keeps generating millions of lies, live in the imagination, do not come into existence on the court." [Degree of Certainty/standard of proof : REJFEK v. McELROY [1965] HCA 46] [SZFDE v Minister for Immigration and Citizenship, [2007] HCA 35; at [8, 15]. Fraud cases stand on a different footing than fresh new evidence cases. When there is a claim of fraud, no requirement to show due diligence to discover the evidence of fraud in the original proceeding. The Errant party has a personal obligation to give away the fruit they acquire by means of fraud. In a case of fraud, the core issue on trial is the fraud, actual fraud or intentional or premeditated contrivance and fraud only. The Onus is to establish [judgment was procured by fraud]. Onus is to present [fresh new facts] in combination with the facts previously known to the court[Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596; at [106]], fresh new facts those discovered since the judgment in question, or [something material] discovered since the judgment in question to prove the fraud. The [pleading of fraud] must be distinct and clear material for the case considered as a new issue on trial [Berry v CCL Secure Pty Ltd [2017] FCA 1546; at [320]]. . [NOTE: Sec 14 FCCA 1999, Sec 22 FCA 1976, Sec 32 Judiciary Act 1903][Pleading: Part 16 of Federal Court Rules 2011.]. [Original Jurisdiction: DPP v Moseley [2013] NTSC 8; at [38-40, 51]. At [2.5] of this page, the statutory concept of fraud as actual fraud.
[Actual Fraud & Due Diligence]
"it is not a precondition to the exercise of the power that the party seeking to set aside the judgment exercised reasonable diligence to attempt to discover the fraud during the earlier proceedings." Similar approach must be taken in appeal and fresh new action.
[Defining fraud: Jurisdictions: Burden of proof]
1.4 Other ways around are ["equitable
fraud"] or ["common law fraud"]. Read only: [Common
law Fraud: Derry v Peek [1889]
UKHL 1; "First, in order to sustain an action of deceit, there
must be proof of fraud, and nothing short of that will suffice. Secondly, fraud
is proved when it is shown that a false representation has been made (1)
knowingly, or (2) without belief in its truth, or (3) recklessly, careless
whether it be true or false." Equitable Fraud: Nocton v Lord
Ashburton [1914] AC 932; "No-one is entitled to make a statement which
on the face of it conveys a false impression and then excuse himself on the
ground that the person to whom he made it had available the means of
correction."] Common law fraud adopted in the definition of
perjury includes two options either someone perjured knowingly or without
believing it true is governed by s327 - s330 of the Crimes Act [see: [Criminal Law - Perjury and Kindred Offences (Consultation Paper) [1970] EWLC C33 (15 January 1970)] at [22]; 18 U.S. Code § 1623. False declarations before grand jury or court.]. It
is to say that the above two theories are not context neutral [discussed in numerous unsuccessful cases in UK ] and as a result were
distilled in the act[s]. Crimes act 1900 accumulates the essence of common law fraud into all fraud-related provisions as mentioned earlier about false or misleading conduct. It is also to conclude, three perspectives of common law fraud [[1970] EWLC C33; at [22]] practically merged into one limb to the knowledge of the judge [evidence + equity] or the court to keep it in the definition of the actual and positive fraud explained in this paragraph. Tricor PLC (formerly PNC Telecom PLC) v Revenue & Customs [2014] UKFTT 241 (TC); at [39]; "The Tribunal agrees with the Appellant’s submission that the case turned on its own facts. Before the Tribunal embarks on its findings of fact in respect of knowledge it is necessary to deal with two preliminary matters. The first concerns the weight to be attached to the evidence of Mr Fletcher and Officer Saunders. The second involves the issue of pleadings". NOTE: There are terms used in the context of individual statutory enactments for civil proceedings, which I found in all case laws referred to on this page. State of mind, balance of probabilities, direct evidence & circumstantial evidence, or combination, actual knowledge/intent v. blind eye, sufficient/enough to believe, honest belief/consistency with honesty v. consistency with dishonesty, credibility of evidence, extrinsic evidence, undisputed evidence, admissibility, fundamentally ambiguous question = a question uses a phrase with a meaning about which men of ordinary intellect could disagree. [[Shao v Minister for Justice and Equality (No. 2) [2020] IEHC 68; at [25, 28]]]. Read: [KNOWLEDGE OF CULPRIT: balance of probability = convincing evidence. Odyssey Re (London) Ltd & Anor v OIC Run-Off Ltd [2000] EWCA Civ 71]. USA cases.
1.5 It appears in the history of development in this realm of law that
law had a dependency on developments in England. As mentioned earlier that in US, they
subdivided kinds of frauds [Extrinsic, Intrinsic] which courts will deal with
setting out a time limit of 12 months to impeach judgments for fraud where the party was present in the trial [Intrinsic]. It is also to say that in US they
believed, except ["perjury alone"]
other kinds of frauds have less or no success rate to prove result would have
been different. To understand this system in the US it is necessary to see their structures of appeals immediately after judgments to challenge the Jury or their decisions. It is not surprising that in Australia some ["historical frauds"] [read only: Magill v Magill [2006] HCA 51; Per GLEESON CJ; at [2-3]] made granted by the provision. But it is not arguable that provisions are very user-friendly in
Australia as like the footage of UK. [see: The Fair Trading Act 1987, s 68(2) required action to be initiated within three years from the date the cause of action accrued for misleading and deceptive conduct.]. Some High Court justice believed
Australian Parliament has some form of lethargy about making provisions where
there was a problem.
1.6 I must be honest about the fact that starting from the 1700 century
there were always various "dirty human intelligence" existed in society also spilled over into the court of law. Forgery to acquire wealth was
a common example. [Barnesly v Powel [1748] EngR 386; Barnesly v Powel [1749] EngR, [1749] EngR 122 ]. In the history of philosophy a term was generated around 400BC as “BAD ARGUMENT” is a common nature of most of the accused. In ordinary form of conversations people say some can argue to argue only when there is no intrinsic value behind it. Some can argue to settle a bad thing because good didn’t need to argue at all. Bad argument is a necessary term to be productive in right directions of thought or public interest. In accounting we account things have intrinsic value or simply write off.
1.7 From the court of England there was "common law" printed in
the provisions that are known as ["Original
Bill"] and ["Bill Of Review"].
It was giving all users access to the court for the second time when they were
suffering judgments for fraud on the part of the other party. There were some
miscarriages like the involvement of the Jury in the party's favor where bribery
existed named as [critically undermine/fraud of bious] in UK
case laws. The original bill allows the user to institute new proceedings based on
fraud setting aside the old. Bill of Review allows the users to present ["Fresh new evidence"] those were not
possible to discover during the original proceeding. It also allows the user to
establish fraud with the help of ["appellate
jurisdiction"/bill of review]. In a bill of review where fraud has been proven no requirement to prove due diligence to discover the fresh new evidence in the original proceeding. Fresh new evidence is always
welcome to prove fraud. In all cases of fraud it is required to establish ["judgment was procured by fraud"] means the
alleged fraud procured the judgment. As the law in Australia, only statutory
courts need provisions to institute either of the bills. [Original Jurisdictions: DPP v Moseley [2013] NTSC 8; at [38-40, 51].
1.8 As discussed in the above paragraphs, when fraud is the ground for any of the bills, there is no
requirement to show due diligence on the part of the cheated party about
discovering the fraud in the original proceeding. Court practices [original jurisdiction] or institutes [independent proceeding] in an appeal where the sole
argument will be fraud only. It was also held in the judgment of the Australian court
that fresh new evidence alone has less success rate or no success to prove
"result would have been different", when practicing appellate or original jurisdictions [Harrison v Schipp [2002] NSWCA
78; Marriot v Hampton, [1797] EngR 443]. Statutory Appellate courts usually have a provision in their [rules or act] to accept fresh new evidence in the appeal. [read only] Birch v. Birch, [1902] P. 130, at pp. 135-6. "The question is : Has there been a new discovery of something material in this sense, that it would be a reason for setting aside the judgment if it were established by proof'". Case law was referred [At page-345; KERR ONFRAUD AND MISTAKE; FIFTH EDITION BY SYDNY EDWARD WILLIAMS, OF LINCOLN'S INN, BARRISTER-AT-LAW. (1920)] An action to set aside a judgment in a probate action on the ground of fraud ought not to be allowed to proceed unless the plaintiff can produce evidence showing a reasonable probability of the alleged fraud being established, but such evidence need not necessarily be of such a character that it would be evidence in the action itself. Allegation of fraud in the statement of claim new issues on trial: Luxford v. Reeves, [1941] V.L.R. 118]. It is referred to in the above paragraphs that fresh new evidence should be a combination with existing evidence which will create an impact on the existing evidence that cannot be ignored but will change the belief of the court with new impacts. The matter cannot to tried afresh means it cannot be a completely new case with completely new evidence.
1.9 At [3] of this page, a number of successful cases referred under certain types/variations of actual frauds that were accepted on the court with final relief. The way it is easy to understand the law in all countries is when
there is a misrepresentation on the court the culprit actually knows
a fact as true about a matter but deliberately misrepresents (varies) the known fact to the court to
create influence on the other party or misleads, duress. When there is perjury
or perjured evidence on the court the culprit simply presents a fact to the
court about a matter that is not true, false or forged. In this situation the main aim of the culprit
is to deceive the court to wrong decisions. It will always become impossible task to prove to the court that the culprit did not know the falsity of the evidence if it was not perjury by a third party in the witness box. Court expects that if someone does not know something he must be honest about admitting that when they are under oath to tell the truth to the court. [Misleading
or deceiving the court] in various premeditated dirty tricks is actual
fraud accepted in certain judgments with relief. There are cases of misconduct or concealment of facts that resulted in deceiving the court. [The
onus] in a case of actual fraud is to prove "some sort of
dishonesty perpetrated intentionally to injure the other party or take an
advantage from the other party keeping the parties ignorant about real issues". [Court's onus] is, to look into the fresh facts or evidence [Corroborative
evidence] even the [claim/pleading for fraud may be considered as a new issue on trial] and discover the truth or the falsity of
the statement. Once fraud or the falsity is [proven conclusively] the court
must set aside judgment considering [circumstantial and
other evidence/ state of mind] about [knowledge of the culprit] [Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66; Odyssey Re (London) Ltd & Anor v OIC Run-Off Ltd [2000] EWCA Civ 71].
1.10 As explained in earlier paragraphs, fraud cases including forgery
cases stand on a different footing. As a result, the [rule
of cross-examination of evidence] does not apply. The law in US is applied a bit differently because they have a different set of court rules to [relitigate] a matter in a new trial immediately after a judgment. But with the exception in a gross case of "perjury alone" where they impeach the
judgment from the perspective that "the jurisdiction of the court was
invoked fraudulently, the court did not have the power to write the decree or entertain
the matter" considers the judgment as invalid. [Bolden
v. Sloss-Sheffield Steel & Iron Co, 215 ALA, 334 (1925); Hooke v.
Hooke, 25 So. 2d 33 (Ala. 1946), in this case, the defendant husband
knew that the plaintiff's wife was living in New
Orleans Louisiana also knew her address, but claimed falsely
that she was in a different state that he did not know so was looking for
her]. READ [Post-Term
Vacation of Judgments Obtained by Perjury. (1954). Columbia Law Review, 54(3),
403-414. doi:10.2307/1119878]. In addition, "if the perjury relates directly to the court's jurisdiction and not simply to the evidence upon the
issue tried", the judgment will be set aside in all jurisdictions as the jurisdiction was invoked by fraud. Edson
v. Edson, 108
Mass. 590; Keyes v. Brackett, 187 Mass. 306, 72 N.
E. 986. READ: [Judgments.
Equitable Relief. Perjury; Source:
Virginia Law Review, Vol. 3, No. 5 (Feb., 1916), pp. 403-404].
1.11 Perjury commits an offence when it generates a judgment. Parties may disclose their mistake or mistaken belief during trial before the lie generates a judgment if it appears to them that the lie will be revealed during the trial. "Perjury is the intentional act of swearing a false oath or falsifying an affirmation to
tell the truth, whether spoken or in writing, concerning matters material to an
official proceeding. In some jurisdictions, contrary to popular misconception,
no crime has occurred when a false statement is (intentionally or
unintentionally) made while under oath or subject to penalty. Instead, criminal
culpability attaches only at the instant the declarant falsely asserts the
truth of statements (made or to be made) that are material to the outcome of
the proceeding." Read perjury as criminal offence. READ: [Criminal
Law - Perjury and Kindred Offences (Consultation Paper) [1970] EWLC C33 (15
January 1970)] at [22]; 18 U.S. Code § 1623]. It may be argued that a witness, when sworn, must speak
of what he himself believes and that if, under oath, he deliberately lies about
material matters he should be convicted even though, unknown to him, the fact
to which he deposed with no belief as to its truth was actually true. But
perjury is essentially an offence designed to punish the telling of lies that
may mislead the court and consequently pervert the course of justice.
1.12 [read only] Mcharg v Woods Radio Pty Ltd [1948];
VicLawRp 86; Now!t is true that Williams J. in Cabassi
v. Vila [1940] (sup1"a) , at pp. 147-8, says, that he has been
unable to find any case, in which a judgment has been set aside· where the only
fraud alleged was that the defendant or a witness or witnesses alone or in
concert had committed perjury. But from what follows· in his judgment I
understand him to assent to the proposition that the circumstances may be such
as to warrant a finding that a fraud, that would justify the setting aside of a
judgment, has been perpetrated by the procuring of perjured evidence and
nothing more. The facts alleged in the statement of claim in Luxford v.
Reeves, [1941] V.L.R. 118, would seem to afford an instance, in which
such a finding was justified. That case came before the Court on motion for
judgment in default of defence, so that the Court had to deal with the matter
on the basis of the allegations contained in the statement of claim, but it
would appear that in that case a manifest fraud had been perpetrated solely by
means of perjury. No doubt Courts will subject to the closest scrutiny cases,
where perjury solely is relied upon, and will require clear proof that by this
means the defendant did perpetrate the fraud complained of. And so, where the
perjured evidence relied upon is that of a witness for the defendant, the
plaintiff must establish to the Court's satisfaction that the defendant either
procured the perjury or was privy to procuring it; that is to say that the
defendant knew the true state of affairs and knowing it, called a witness to
give a false and perjured account: Daniell's Chancery Practice (8th ed.), vol.
II, pp.1332-3. ADD [Council of the New South Wales Bar Association v Einfeld, [2009] NSWCA 255; Husain v Roads and Maritime Services, [2017] NSWCATOD 8; Behman v Regina, [2014] NSWCCA 239; GREALISH, Peter v R, [2013] NSWCCA 336; The Duchess of Kingston's Case, (1776) EngR 16; Odyssey Re (London) Ltd & Anor v OIC Run-Off Ltd, [2000] EWCA Civ 71; Feakins & Anor v Department for Environment, Food & Rural Affairs, [2006] EWCA Civ 699; U.S. v. Kross, 14 F.3d 751 (2d Cir. 1994); WILLIAM F. KEYES vs. WILLIAM C. BRACKETT & others, 187 Mass. 306; Dec 6, 1904 – Jan 7, 1905], [Stephens v. Stephens, 37 So. 2d 918 (Ala. 1948) forgery/perjury involving third party];[Liebman,
J., & Cohen, J. (1994). Perjury and Civil Litigation. Litigation, 20(4),
43-46. Retrieved from http://www.jstor.org/stable/29759726]. In almost
every instance, there is hard proof-forensic or documentary evidence - (and not
just other witnesses' contradictions) that the government believes will support
its allegation of perjury. Accordingly, civil litigators who have what appears
to be proof positive of perjury should not hesitate, if it fits their broader
litigation strategy, to advocate perjury prosecutions against witnesses who
have downright lied. United
states v. Schwartz (No. 91 Crm, 985, S.D.N.Y. 1991;
The plaintiff in a civil contract disputed in the federal court testifies that
he sent a letter embodying the terms of a contract to the defendant. The matter was referred to the government for investigation. An investigation by the postal
service and united states attorney’s office exposes a lie beyond any doubt. By
tracing the serial number on the certified mail receipt. See more, United
states v. Coyle and Lewis (No. 93 Crim. 98, S.D.N.Y. 1993); United States
v. Kross, 14
F3d 751 (2nd Cir. 1994).
1.13 Perjury related: Singh v Moorlands Primary School & Anor [2013] EWCA Civ 909 (25 July 2013); A wrong should not be without a remedy vs. Judicial proceedings immunity: i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court; ii) The core immunity also comprises statements of case and other documents placed before the court; iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked; iv) Whether something is necessary is to be decided by reference to what is practically necessary; v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity; vi) In such cases the principle that a wrong should not be without a remedy prevails.
1.14 Perjury/swearing
in Islamic Law: [570AD+] "swear means witnessing God on the
accuracy and truth of sayings; then in such legal system, swear has religious
basis and by such record, it is accounted as one of the reasons for proving the
claim. In previous punishment law..it criminalized false part as......“when a
person have perjury in legal or criminal claims that sworn false or perjury,
he/ she will be convicted from six months to two years of jail”........Subject
of perjury crime is any matter that must be sworn on, including three cases:
(a) when subject of brining swear is the presence of a given matter; (b) when
subject of swearing is not a given matter; (c) when subject of swear is
negating the knowledge..... Perjury crime is an absolute deliberate crimes and
intention for resolving the claim or dispute or otherwise has no subjectivity
in fulfilling the crime because principally, bringing swear will generally
resolve the claim......Swear is the last reason for proving the claim in the
reason for proving the claims and disputes in both legal claims and criminal
claims and based on its power for proving the claim, perjury will have some
effects......According to measures such as importance of the subject of claim,
personality of parties of dispute, swear could be concentrated depending on the
view and discretion of the court by term, temporal, spatial and situation or
state.
1.15 Fraud on the party and Fraud on the court: The court thus appeared to distinguish between fraud on the party and fraud on the court,' on the principle that in the former case only new facts coming to light after the judgment would justify ordering a new trial : while in the latter it was immaterial whether or not the grounds of the alleged fraud were known at the earlier date. In so far as Birch v. Birch was used to support this distinction, it does not seem to be relevant. Read : Modern Law Review , at page [107]. Wright v. Wright, 230 Ala. 35, 159 So. 220; "Collusion between the parties does not, however, affect the jurisdiction of the court so as to render the judgment or decree void; and so, as a general rule, where, through fraud or collusion, the parties to the divorce suit prevail upon the court to take jurisdiction of the suit and render a decree therein, they are precluded from having it set aside or attacking its validity because of such acts, since they cannot take advantage of their own wrong." See also, Stephens v. Stephens, 37 So. 2d 918 (Ala. 1948). [Sheahan in the matter of Gemhall Holdings Pty Ltd (in liquidation) v Lo Pilato [2012] FCA 700; at [41 - 44, 54, 70, 71]; at [69]; It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". [Drinkwater v Nadinic; [2016] NSWSC 1733]
1.15 Fraud on the party and Fraud on the court: The court thus appeared to distinguish between fraud on the party and fraud on the court,' on the principle that in the former case only new facts coming to light after the judgment would justify ordering a new trial : while in the latter it was immaterial whether or not the grounds of the alleged fraud were known at the earlier date. In so far as Birch v. Birch was used to support this distinction, it does not seem to be relevant. Read : Modern Law Review , at page [107]. Wright v. Wright, 230 Ala. 35, 159 So. 220; "Collusion between the parties does not, however, affect the jurisdiction of the court so as to render the judgment or decree void; and so, as a general rule, where, through fraud or collusion, the parties to the divorce suit prevail upon the court to take jurisdiction of the suit and render a decree therein, they are precluded from having it set aside or attacking its validity because of such acts, since they cannot take advantage of their own wrong." See also, Stephens v. Stephens, 37 So. 2d 918 (Ala. 1948). [Sheahan in the matter of Gemhall Holdings Pty Ltd (in liquidation) v Lo Pilato [2012] FCA 700; at [41 - 44, 54, 70, 71]; at [69]; It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". [Drinkwater v Nadinic; [2016] NSWSC 1733]
1.16 Doctrine
of res judicata : People
v. Housman, 44 Cal. App. 2d 619 (Cal. Ct. App. 1941); "Though there is
some conflict in the authorities upon the question of whether the doctrine of
res judicata applies in a criminal proceeding of this nature the great weight of
authority is that it has no application. One of the leading cases adopting the
majority view is People v. Niles, 300
Ill. 458 [133 N.E. 252, 37 A.L.R. 1284]. In that case the appellant had
been indicted jointly with another for the larceny of and receiving as stolen
property an automobile. The codefendant pleaded guilty and upon his favorable
testimony and that of the appellant the latter was found not guilty. Thereafter
he was indicted for perjury because of the testimony so given. On appeal the
Supreme Court of Illinois said that the question presented for decision was:
"Can a person acquitted by a jury of an offense of which he denied his
guilt as a witness in his own behalf be afterwards prosecuted for perjury
predicated upon testimony given by him upon the former trial, where a
conviction of the charge of perjury necessarily imports a contradiction of the
verdict of not guilty in the former trial?" In answering the question in
the affirmative the court said: "Justice cannot be administered through a
system of courts unless there can be some *624 assurance that the finding of
the court is based upon testimony truthfully given. Any rule which tends to
encourage the giving of false testimony threatens the peaceable and commendable
settlement of controversies by the courts. The general proposition that one can
escape punishment for perjury because he succeeded in inducing a jury to credit
his false testimony is supported neither by authority nor by reason. If he
could, then it follows that the law encourages parties--particularly defendants
in criminal cases--to perjure themselves. We must declare that the law is
guilty of no such folly." Read only: R v
Carroll [2002] HCA 55; 213 CLR 635; 194 ALR 1; 77 ALJR 157 (5 December 2002);
at [84-93]; at [94]; "So-called "similar fact" evidence
gives rise to difficulties which it is unnecessary here to consider. However,
it may be noted that the House of Lords and the New Zealand Court of Appeal
respectively have held that similar fact evidence is not rendered inadmissible
(i) merely because it shows or tends to show that the defendant was guilty of
an offence of which that person has been acquitted, or (ii) "by reason of
the fact that a previous trial based on that evidence has resulted in an
acquittal or a stay of proceedings" Rogers v R [1994] HCA 42; at [2]
I adhere to the view which I expressed in Reg. v. Storey ((1) [1978]
HCA 39; (1978) 140 CLR 364 at 400-401.) that the doctrine of issue estoppel
as it has developed in civil proceedings is not applicable to
criminal proceedings. The reasons which compel acceptance of that view are
set out in the judgments of Barwick CJ, Gibbs J and myself in that
case ((2) ibid. at 371-374 per Barwick CJ, 379-389 per Gibbs J,
400-401 per Mason J). The availability of res judicata, the defences of autrefois
acquit and autrefois convict and the rule against double jeopardy and the
doctrine of abuse of process make it unnecessary to introduce the doctrine
of issue estoppel into the criminal law. Moreover, the introduction of
issue estoppel and all its complexities would serve only to make the
criminal law more convoluted. This view accords with the position reached
in other common law jurisdictions ((3) England: Reg. v. Humphrys (1977) AC
1; Hunter v. Chief Constable [1981] UKHL 13;
(1982) AC 529; New Zealand: Reg. v. Davis (1982) 1 NZLR 584; Bryant
v. Collector of Customs (1984) 1 NZLR 280; but cf. Duhamel v. The
Queen (1984)
14 DLR (4th) 92.). [Article]
1.17 Privity: Rucker v. Schmidt, 794
N.W.2d 114 (Minn. 2011); Katherine Rucker subsequently sued Robert
Rucker's dissolution attorney and the law firm that employed him, appellants
Steven B. Schmidt and Rider Bennett, LLP, based primarily on the same facts
asserted in her suit against Robert Rucker. Katherine Rucker accused Schmidt
and Rider Bennett of fraud, fraud on the court, and aiding and abetting fraud
in the marriage dissolution action. The district court granted summary judgment
to Schmidt and Rider Bennett, holding that due to the attorney-client
relationship, Robert Rucker and his attorneys were in privity for purposes of
the application of the doctrine of res judicata, and therefore, Katherine
Rucker's separate action against Schmidt and Rider Bennett was barred. The
court of appeals reversed and remanded, concluding that the attorney-client
relationship, by itself, did not create privity between Robert Rucker and his
attorneys for purposes of res judicata. For the reasons discussed below, we
affirm.
1.18 Doctrine of Precedent: High court of Australia raised the issue of similarity could be maintained in the law in all countries as to the point of underlying principles or common law in different countries. The terms development of law or comparative analysis of law largely dominate the academia of law whether for parliament or for the court. It has been said that in US they are not very keen to quote case laws from other countries considering centuries of development there, but in a case of fraud there is no alternative of UK equities. In a case of fraud, Uk judgments use references to Australian case laws. It is suggested by the justice of High court of Australia that to take other country's precedents seriously when proposed even though [a new legal principles] settled in a foreign case are not binding rules like legal principles settled in high court judgments for all courts in Australia. As to the effects Australian courts are not bound by decisions of [Privy Council] in UK from around 1970. In a completely new set of facts or problems court may compare facts with foreign cases. It is not a matter of argument that perjury is perjury in all legal system may be punished in different degrees. [Read online: Article 0, Article 1, Article 2, Article 3, Article 4, Article 5, Article 6, Article 7.] IMPORTANT: As I have discussed in the error of law page, Ratio Decidendi, Obiter dictum are two terms related to the doctrine persuade the court to set possible legal principles for a case in a certain set of facts. It is necessary to propose successful cases [case law] where a legal principle successfully applied in the case not just mentioned in the judgment and also not overturned later in the higher court in the appeal. To convince the court to accept your arguments and suggested legal principles, [weight of authority] is a determining factor, where proposed unsuccessful authorities mostly disregarded or ignored other than convincing the court to use the principle discussed in a case but not applied successfully. Here I must conclude one issue discussed follow that if a question is properly brought to the high court to seriously consider and answer, and if an Obiter dicta settled from the answer of the high court, other court must not be wast time and money of the parties and force the parties to raise the same question to the high court via appeals. That will only make the judge doubtful about undoubted issues or prolix. In Farah Constructions, the High Court cast significant doubt on two previously settled propositions about the application of the doctrine of precedent in Australia, suggesting that courts of appeal in the states and territories are bound to follow ‘seriously considered’ obiter dicta of the High Court, and that a court of appeal in one state or territory is bound to follow the decisions of such a court in another state or territory. First, it was thought that although such courts were bound to follow the decisions of the High Court, they were only bound to apply certain elements of the reasoning of the High Court and not others. Judicial reasoning is often broken down into two categories. In one category we can place reasoning about the law that is necessary to the decision reached by the judge (in law, this reasoning is known by a Latin name, ‘rationes decidendi’, literally ‘reasons for the decision’). In the other category we can place reasoning about the law that is not necessary to the decision reached by the judge (in law, this reasoning is also known by a Latin name, ‘obiter dicta’, literally ‘things said by the way’). Obiter dicta are often uttered by judges in order to make observations about the law that, while not strictly relevant to the case at hand, are likely to be relevant to other cases in the future. Before Farah Constructions, it was thought that intermediate appellate courts were bound to follow only the rationes decidendi of High Court decisions, and never the High Court’s obiter dicta. Secondly, prior to Farah Constructions, it was thought that a court of appeal in one state or territory was never bound to follow the decision of a court of appeal in another state or territory; judge-made law in each state and territory was therefore conceived along lines emphasising the federal character of our system of government. Thus, judge-made law in Australia has traditionally varied from state to state.
ABSTRACTION:
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Carnage 2011
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Girl Walks Into a Bar (2011)
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On the Basis of Sex (2018)
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TEXT BOOKS: [COURT PROCEDURES, CONTRACT LAW]
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KNOWING THE LAW IN AUSTRALIA:
2.1 Berry v CCL Secure Pty Ltd [2017]
FCA 1546; at [320-321]; In Lazarus Estates Ltd v Beasley [1956] 1
QB 702; at 712-713] Denning LJ declared: “No court in this land will allow a
person to keep an advantage which he has obtained by fraud. No judgment of a
court, no order of a Minister, can be allowed to stand if it has been obtained
by fraud. Fraud unravels everything. The court is careful not to find
fraud unless it is distinctly pleaded and proved; but once it is
proved, it vitiates judgments, contracts and all transactions
whatsoever: see as to deeds, Collins v Blantern [1 Smith’s Leading
Cases, 13th ed, p 406; (1767) 2 Wils KB 34 [195 ER 847]]; as to judgments, Duchess of
Kingston’s Case [2 Smith’s Leading Cases, 13th ed, 644, at pp 646,
651; (1776) 20 State Tr 355 at 538-539,
543-544]; and as to contracts, Master v Miller [1 Smith’s
Leading Cases, 13th ed, 780, at p 799 (1791)].”
2.2 DPP v Moseley [2013] NTSC 8; at [51]; “However if the fraud practised at trial is discovered after an appeal on other grounds has been dismissed, there is no remedy unless the Court at first instance retains the power once exercised in Chancery on an Original Bill alleging fraud. For that reason, the existence of a power in the trial court to set aside a judgment obtained by fraud has consistently been recognised in common law jurisdictions since the Judicature Acts”. Read at [38-40]. read only: [Re Monroe Schneider Associates (Inc) and Barry Lee Schneider v [1992] FCA 367; at [2-4]; Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12] at [1, 28, 30, 32]; Di Carlo v Dubois &Ors [2007] QCA 316, this case was brought as an appeal adding a new defendant renewing the claim. As mentioned earlier, only statutory courts need provisions to institute original bill or bill of review. But the law is broadly recognised as equitable jurisdiction under common law. SEE ALSO, FLOWER V LLOYD: CA1877;[1877] 6 ChD 297; HIP FOONG HONG V H.NIOTIA AND COMPANY; Supreme court for China 1918.
2.3 [read only] Birch v. Birch, [1902] P. 130, at pp. 135-6. "The question is : Has there been a new discovery of something material in this sense, that it would be a reason for setting aside the judgment if it were established by proof'". Case law was referred [At page-345; KERR ONFRAUD AND MISTAKE; FIFTH EDITION BY SYDNY EDWARD WILLIAMS, OF LINCOLN'S INN, BARRISTER-AT-LAW. (1920)] An action to set aside a judgement in a probate action on the ground of fraud ought not to be allowed to proceed unless the plaintiff can produce evidence showing a reasonable probability of the alleged fraud being established; but such evidence need not necessarily be of such a character that it would be evidence in the action itself; Luxford v. Reeves, [1941] V.L.R. 118. It is to say that cases were decided without any fresh new evidence but discovery of something material in sense. Mcharg v Woods Radio Pty Ltd [1948]; VicLawRp 86; Where, therefore, the statement of claim in such an action alleged that the defendant had obtained the judgment by perjured evidence, but there was no allegation of any new discovery or of fresh facts, nor ,was any such evidence adduced on the hearing of an application to strike out the statement of clam,.......It is not necessary to allege that apart from the perjury the decision would have been different, it is sufficient if a Court has been influenced or affected by the perjured evidence....And..to satisfy this onus the plaintiff must produce evidence of facts discovered since the judgment complained of, which raise a reasonable probability of the action succeeding-Birch v. Birch, [1902] P. 130, at pp. 135-6. The question is : Has there been a new discovery of something material in this sense, that it would be a· reason for setting aside the judgment if it were established by proof',,,,,,In these circumstances I do not think I should accede to the defendant's contention that I should stay this case for ever. It seems to me that justice will best be done, if I strike out the statement of claim endorsed on the -writ, but at the same time allow the plaintiff to file a new one.......The order I propose to make is that the statement of claim endorsed on the writ be struck out, with leave to deliver a second statement of claim within 21 days from this date. I reserve to the defendant liberty to make an application similar to the present one after the new statement of claim is delivered.
2.4 DPP v Moseley [2013] NTSC 8; case is an Australian case where the court allowed fresh new evidence to proof fraud. JONESCO V BEARD: HL 1930; also a very important case to understand the law.
[Statutory concepts of actual fraud]
2.5 Bahr v Nicolay (No 2) [1988]
HCA 16;per MASON C.J. AND DAWSON J; at [11];"Fraud
... means actual fraud, dishonesty of some sort, not what is called
constructive or equitable fraud ..." Lord Buckmaster went on (at pp
106-107) to instance, as examples of fraud, the transfer whose object is to
cheat a man of a known existing right and a deliberate and dishonest trick
causing an interest not to be registered.” Toubia v Schwenke (2002)
54 NSWLR 46. “HELD : (1) In bringing proceedings under s 66 the plaintiff need only prove that the defendant made
statements for the purpose of obtaining a financial benefit with the
knowledge that they were false or misleading and thereby obtained
a financial benefit. (2) A new trial can only be granted on the ground of fresh
evidence if that evidence could not have been discovered by the exercise of due
diligence before the trial. McDonald v McDonald (1965) 113 CLR
529 applied. (3) A judgment may be set aside for fraud, in proceedings
brought for that purpose, if the fraud is proved. The plaintiff must bring
forward evidence of fresh facts to prove that fraud but there is no requirement
that such evidence could not have been discovered by the exercise of due
diligence before the trial. McDonald v McDonald applied.
2.6 Read only: Paragraphs [43-60] of Clone Pty Ltd v Players Pty
Ltd (In Liquidation) (Receivers & Managers Appointed) [2018]
HCA 12.
2.7 Read only: To understand the law in Australia some unsuccessful authorities are helpful.
Clone Pty Ltd
v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018]
HCA 12; DJL v Central Authority [2000]
HCA 17; McDonald v McDonald [1965]
HCA 45; Rodgers v. ANZ Banking Group Ltd & Anor [2005]
QSC 365; at[15]; Cabassi v Vila [1940]
HCA 41; Re Monroe Schneider Associates (Inc) and Barry Lee Schneider
v [1992]
FCA 367; Di Carlo v Dubois &Ors [2007]
QCA 316; Carter v Rosedale Sawmill [1995]
QCA 441.
Provisions:
2.8 Court rules are allowing provisions to set aside judgements and the law of fraud is applicable in all courts in Australia. Examples: [rule. 16.05 of FCCR 2001, reg. 36.15 UCPR 2005 [NSW], s667 UCPR 1999 [QLD]
2.9 FURTHER READING: Harvard Law Review, Vol. 23, No. 1 (Nov., 1909), Virginia Law Review, Vol. 43, No. 5 (Jun., 1957)
3.1 actual FRAUDS THOSE ACCEPTED ON THE COURT:
1. Forgery [falsification]
2. Perjury or perjured evidence,
3. Misrepresentation.
4. Misconducts/concealment of material fact.
5. Critically Undermine
3.2 Critically Undermine or the fraud of bias. [Taylor v Lawrence [2002] 2 All ER 353; Re U (A Child) [2005] EWCA Civ 52 (24 February 2005); It was held that in exceptional circumstances, the Court of Appeal in England has an inherent jurisdiction, going beyond the power to correct slips and to set aside fraudulently obtained orders, to reopen an appeal after the judgement has been drawn up, in order to avoid real injustice. It was said that although the outcome of litigation should be final there was a need to temper that principle in exceptional circumstances. It was further said that the power is derived from the court’s necessary implicit powers to suppress abuses of its process and control its own practice. "The Court of Appeal or the High Court will not reopen a final determination of any appeal unless – (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy."
3.3 It appears that the Australian Court does not have the above provision but
there is a use of inherent power to the High court. All other courts are
restricted by provisions only. State Rail Authority of NSW v
Codelfa Construction Pty Ltd [1982]
HCA 51. High court of Australia defined that the original bill can
be used when there was a "serious breach of procedural fairness" [Taylor
v Taylor [1979]
HCA 38; Stevens v Guppy [1823]
EngR 520; DL v The Queen [2018]
HCATrans 83; discussed in: DJL v Central Authority [2000]
HCA 17; Bailey v Marinoff [1971]
HCA 49]
3.4 Other Factors to set aside judgements:
Slip Rule: Qld Pork P/L v Lott [2003]
QCA 271; Shaddock & Associates Pty Ltd v Parramatta City Council (No
1) [1981]
HCA 59.
Surprise: Stevens
v. Guppy [1823] ; Edson v. Edson, 108 Mass 590;
"The American courts are governed by the same principles as to opening
and reversing decrees of divorce as in other causes. Bishop on Mar. & Div.
(4th ed.) § 751, and cases cited. A court of chancery will on motion vacate an
enrolled decree, where the defendant has been deprived of his defence by
surprise, mistake, accident, or the neglect of his solicitor. Thompson v.
Goulding, 5
Allen 81 , 82. Parker v. Dee, 3 Swanst. 529. Robson v. Cranwell, 1
Dickens, 61. Kemp v. Squire, 1 Ves. Sen. 205. Stevens v. Guppy, Turn. &
Russ. 178. Millspaugh v. McBride, 7 Paige 509. Beekman v. Peck, 3 Johns. Ch.
415. Erwin v. Vint, 6 Munf. 267. At common law also, a judgment of a former
term may be vacated on motion. Stickney v. Davis, 17 Pick. 169 . It is obvious
that a fraud which prevents a defendant from making his defence is a stronger
ground for setting aside a decree than mere surprise or mistake. Loyd v.
Mansell, 2 P. W. 73. Richmond v. Tayleur, 1 P. W. 734, 736."
Fresh new evidence: Orr
v. Holms, Mickelberg v The Queen (1989) 167 CLR 259.
Reopen Appeal: Text, Feakins
& Anor v Department for Environment, Food & Rural Affairs [2006]
EWCA Civ 699. Bishop v Chhokar [2015] EWCA Civ 24.
FORGERY [falsification]
4.1 Barnesly v Powel [1748] EngR 386; The bill sought to be relieved against a paper-writing of the 16th October 1736, purporting to be the will of plaintiff’s father, under which the defendant Manse1 Powel claimed, and which was not without evidence to support it; although there was strong suspicion of forgery [falsification]............“The only thing I have considered, is, to come at the trial clearly, so as the plaintiff may not be intangled by his acts ; and there is enough in the case to set aside every thing of that sort at the trial, and prevent its being made use of ;....... There are several instances of relief, notwithstanding a former decree, if obtained by fraud and imposition, which infects judgments at law, and decrees of all courts; and annuls the whole in the consideration of this court; as held by Lord Macclesfield in Richmond v. Taylour.” See the result.
4.2 Stace v. Mabbot (1754)
2 Vesey 552; “This extends also to personal demand, where of
considerable value, and where the court is not satisfied with the grounds on
which the determination was made at law, and when an objection is made and
supported by proof; and particularly in a case of forgery, new trials have been
granted, and that by judges who sat here, who have been as reluctant as any,
and who inclined to adhere to the rules of common law.”
[Stephens v. Stephens, 37 So. 2d 918 (Ala. 1948); forgery involving third party; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66.]
[Stephens v. Stephens, 37 So. 2d 918 (Ala. 1948); forgery involving third party; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66.]
PERJURY IN MAIL FRUAD:
4.4 In the case, United states v. Schwartz
(No. 91 Crm, 985, S.D.N.Y. 1991;
The plaintiff in a civil contract disputed in the federal court testifies that
he sent a letter embodying the terms of a contract to the defendant. The matter
referred to the government for investigation. An investigation by the postal
service and united states attorney’s office exposes a lie beyond any doubt. By tracing
the serial number on the certified mail receipt. See more, United
states v. Coyle and Lewis (No. 93 Crim. 98, S.D.N.Y. 1993).
INTENTIONAL/DELIBERATE CONTRIVENCE/FRUAD:
4.5 BLENEINSOPP, (1850) V. BLENKINSOPP, (1852) ]; Defendant, who was possessed of considerable property, determined that the Plaintiff should obtain no benefit from the suit, and that with a view to delay, hinder and defraud the Plaintiff of her just rights, which she sought to recover in the suit, the Defendant determined to withdraw his person and the whole of his property from the jurisdiction of the Ecclesiaatical Court and of the Judicial Committee, and, by that means, to defeat and render inoperative all such orders as might be made by Her Majesty in Council or by the Judicial Committee, for the recovery of such alimony as might be allotted to her, or such costs as might he ordered to be paid to her. That Messrs. Fenwick and Trotter were his solicitors, and assisted him in the scheme ; and that, in pursuance and execution of such scheme, and with a view to defraud the Plaintiff and defeat her rights, the deed, dated the Sd of September 1842, was executed.
INTENTIONAL/DELIBERATE CONTRIVENCE/FRUAD:
4.5 BLENEINSOPP, (1850) V. BLENKINSOPP, (1852) ]; Defendant, who was possessed of considerable property, determined that the Plaintiff should obtain no benefit from the suit, and that with a view to delay, hinder and defraud the Plaintiff of her just rights, which she sought to recover in the suit, the Defendant determined to withdraw his person and the whole of his property from the jurisdiction of the Ecclesiaatical Court and of the Judicial Committee, and, by that means, to defeat and render inoperative all such orders as might be made by Her Majesty in Council or by the Judicial Committee, for the recovery of such alimony as might be allotted to her, or such costs as might he ordered to be paid to her. That Messrs. Fenwick and Trotter were his solicitors, and assisted him in the scheme ; and that, in pursuance and execution of such scheme, and with a view to defraud the Plaintiff and defeat her rights, the deed, dated the Sd of September 1842, was executed.
PERJURY:
5.1 Daniell's Chancery Practice (8th ed.), vol. II, pp. 1332-3. No
doubt Courts will subject to the closest scrutiny cases, where perjury solely
is relied upon, and will require clear proof that by this means the defendant
did perpetrate the fraud complained of. And so, where the perjured evidence
relied upon is that of a witness for the defendant, the plaintiff must
establish to the Court's satisfaction that the defendant either procured the
perjury or was privy to procuring it; that is to say that the defendant knew
the true state of affairs and knowing it, called a witness to give a false and
perjured account. [Fabrilius v. Cock [1765] EngR 82; (1765) 3 Burr 1771 (97 ER 1090)]
5.2 The Duchess of Kingston's Case (1776) EngR 16; A sentence of jactitation is not conclusive evidence against an indictment of bigamy, for its validity may be impeached, as having been obtained by fraud.
[Odyssey Re (London) Ltd & Anor v OIC Run-Off Ltd [2000] EWCA Civ 71]
[PERJURY OF WITNESS: R v Gillyard; [1848] EngR 619; ]
5.3 Luxford v. Reeves, [1941]
V.L.R. 118; “Shortly stated, what the defendant did was to bring
a fraudulent claim for workers' compensation before the Workers Compensation
Board, a tribunal appointed under the provisions of Act No. 4524, and thereby
to obtain an order against the present plaintiff to pay_ 325l. and costs to the
present defendant. In connection with the fraud the present defendant has been
convicted of perjury and sentenced on conviction. The plaintiff, as has already
been stated, is now seeking relief against the: consequences of that fraud. The
duty and power of the Court both in its common law and its equitable
jurisdiction to entertain such causes of action and give the proper relief
appropriate in the particular case cannot, and never has been, called in
question. The remedies available have varied according to whether the tribunal
in which the action was brought was a common law or an equitable Court. Mcharg
v Woods Radio Pty Ltd [1948];
VicLawRp 86; “That case came before the Court on motion for judgment in
default of defence, so that the Court had to deal with the matter on the basis
of the allegations contained in the statement of claim, but it would appear
that in that case a manifest fraud had been perpetrated solely by means of
perjury..”
[R v Einfeld [2009] NSWSC 119; Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; Husain v Roads and Maritime Services, [2017] NSWCATOD 8; Behman v Regina, [2014] NSWCCA 239; GREALISH, Peter v R, [2013] NSWCCA 336; Commissioner of Taxation v Rawson Finances Pty Ltd (No 2) [2016] FCA 402] [SHAM: Sheahan in the matter of Gemhall Holdings Pty Ltd (in liquidation) v. Lo Pilato (liquidator) [2012] FCA 700; at [41 - 44, 54, 70, 71]
[R v Einfeld [2009] NSWSC 119; Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; Husain v Roads and Maritime Services, [2017] NSWCATOD 8; Behman v Regina, [2014] NSWCCA 239; GREALISH, Peter v R, [2013] NSWCCA 336; Commissioner of Taxation v Rawson Finances Pty Ltd (No 2) [2016] FCA 402] [SHAM: Sheahan in the matter of Gemhall Holdings Pty Ltd (in liquidation) v. Lo Pilato (liquidator) [2012] FCA 700; at [41 - 44, 54, 70, 71]
5.4 US cases: perjury on the court: [WILLIAM F. KEYES vs. WILLIAM C. BRACKETT & others, 187 Mass. 306; Dec 6, 1904 – Jan 7, 1905; United States v. Kross, 14 F3d 751 (2nd Cir. 1994)]. Perjury among parities: [Bolden v. Sloss-Sheffield Steel & Iron Co, 215 ALA, 334 (1925); . Edson v. Edson, 108 Mass 590; Hooke v. Hooke, 25 So. 2d 33 (Ala. 1946)] "at the time the said bill for divorce was filed her resident post office address was 613 Louisa Street, New Orleans, Louisiana, which fact appellant then knew, or if not actually known, could have been ascertained by him upon reasonable effort, but that he made no reasonable effort to ascertain the same, if he did not actually know it; that the allegation in the said bill for divorce that appellee, on or about the 10th day of May, 1940, voluntarily abandoned appellant's bed and board without fault on his part and that she has voluntarily remained away from him since that time, was false, and was known by appellant to have been false at the time it was made, and was made for the fraudulent purpose of setting out or submitting to the Circuit Court of Elmore County, in Equity, a ground or cause of action upon which to seek a divorce; that she has never voluntarily abandoned the bed and board of said Edward N. Hooke at any time and had not abandoned his bed and board for more than two years preceding the filing of the said bill for divorce; that the testimony of her husband (appellant) in the divorce case, that he was a bona fide resident citizen of Elmore County, Alabama, and that appellee had voluntarily abandoned him, without fault on his part, and had voluntarily remained away from him was false and fraudulent and was made for the false and fraudulent purpose of obtaining a divorce decree from appellee; that on the 30th day of March, 1944, the Circuit Court of Elmore County, Alabama, in Equity, entered a decree granting appellant a divorce from appellee. Appellant's bill for divorce, his affidavit of nonresidence, the register's order of publication and the divorce decree were all made exhibits to appellee's bill, as amended". READ [Post-Term Vacation of Judgments Obtained by Perjury. (1954). Columbia Law Review, 54(3), 403-414. doi:10.2307/1119878]. United states v. Schwartz (No. 91 Crm, 985, S.D.N.Y. 1991: The plaintiff in a civil contract disputed in the federal court testifies that he sent a letter embodying the terms of a contract to the defendant. The matter referred to the government for investigation. An investigation by the postal service and united states attorney’s office exposes a lie beyond any doubt. By tracing the serial number on the certified mail receipt. See more, United states v. Coye and ewis (No. 93 Crim. 98, S.D.N.Y. 1993)].
Perjury related Frauds :
5.5 Bandon v. Becher7 (1835)
3 Cl. & Fin. 479 [6 E.R. 1517]; ’if brought into dispute at all,
should be brought into dispute in the Court where it was originally
pronounced…..where you appear as an actor, object to a decree made in another
Court, upon which decree your adversary relies ; and you may, either as an
actor or defender, object to the validity of that decree, provided it was
pronounced through fraud, contrivance, or covin of any description,…..:-'' A
sentence is a judicial determination of a cause agitated between real
parties, upon which a. real interest has been settled ;-in order to make a sentence
there must be a real interest a real argument a real decision, Of all these
requisites not one takes place in the case of a fraudulent and collusive suit;
here is no Judge, but a person invested with the ensigns of a judicial
office, misemployed in listening to a fictitious cause proposed to him; there
is no party litigating there is no party defendant no real interest brought
into question."
5.6 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; at [8.15]; “It is convenient first to consider the place of "fraud" in the framework of general legal principle. In his celebrated speech in Reddaway v Banham, Lord Macnaghten spoke of the various guises in which fraud appears in the conduct of human affairs, saying "fraud is infinite in variety". A corollary, expressed by Kerr in his "Treatise on the Law of Fraud and Mistake", is that:"The fertility of man's invention in devising new schemes of fraud is so great, that the courts have always declined to define it ... reserving to themselves the liberty to deal with it under whatever form it may present itself.
5.7 DPP v Moseley [2013] NTSC 8; at [60]; However, we note that the defendant has already submitted to such forensic disadvantage by giving evidence at his trial and before the Court of Criminal Appeal, exposing himself to cross-examination on both occasions.
5.8 [read only] Phillipson v. Lord Egremont6 (1844) 6 Q.B. 587 [115 E.R. 220]; “If the plea had alleged a fraud practised on the original defendant, it would have been open to the answer already made to the fourth and sixth pleas : but, as it alleges fraud and collusion between the plaintiff and the defendant in the action for the purpose of charging the present defendant; "there was no opportunity for him to plead it before. We are of opinion that such fraud and collusion are sufficiently stated by the fifth plea: and the question of fact is thereby raised which is properly within the province of a jury to determine We were reminded, on the argument, that, when such questions of fact have arisen on motion to set aside proceedings by scire facias on a similar judgment, we have directed issues to try the facts, rather than determine them ourselves on affidavit ; Bosanquetv. Grnharn (ante, p. 601, note (a)) ; which furnishes an additional argument to shew that such facts may be pleaded, if there be the opportunity to do so. Upon the whole, therefore, we think that our judgment must be for the defendant on the fifth plea, and for the plaintiff upon the others.
5.9 Deceiving the court [Robinson v. Smith (1915) 1 KB 711].
Misleading the court: [false or misleading]
6.1 Feakins & Anor v Department for Environment, Food & Rural
Affairs [2006]
EWCA Civ 699; It is important, for the purposes of these
proceedings, to give an accurate account of the system whereby exports of sheep
were exempted from clawback.....In all the respects I have identified, Mr
Basham's evidence was misleading. It failed to give an accurate account of the
system adopted at the time.....Albeit at the last moment, it did
produce a statement which was untruthful and seriously misled the Court of
Appeal. In such circumstances I am satisfied that were the Feakins not
permitted to re-open the appeal and challenge the counterclaim, a serious
injustice would result.
6.2 Meek v. Fleming 1961
2qb 366; A further notice of motion for leave to give
fresh evidence alleges that on the question of credit the defendant deceived or
misled the court. The deception at the trial was admitted. [Withholding information by counsel/paramount duty to the court].
6.3 Rucker v.
Schmidt , 794
N.W.2d 114 (Minn. 2011); The wife subsequently
sued the husband for fraud on the court, asserting that he intentionally
provided deceptive, misleading, and incomplete information to the independent
appraiser and to the court about his business interest that resulted in its
undervaluation. The court concluded that the wife had established her claim.
6.4 Peters v R [1998] HCA 7; “The prosecution case on the charge of conspiracy to pervert the course of justice was that the appellant was party to a conspiracy to conceal the true source of the moneys used to purchase the various properties the subject of the conveyancing transactions in which the appellant was retained.”
[NICK ZARDO v MATE IVANCIC [2003] ACTSC 32][FALSE OF MISLEADING CONDUCT: Reddaway v Banham;[1896] AC 199]
MISREPRESENTATION:
6.5 Tommey v. White (1853)
4 H.L.C. 313; Tommey took the offensive, and bombarded the
trustees with litigation, uniformly unsuccessful until the eighth attempt. He
now alleged that the House of Lords had never before considered the decree of
1835 (a fraudulent misstatement). In this case, the House of Lords held that it
could set aside its own previous decision.
[ Sharland v Sharland SC (Bailii, [2015] UKSC 60, Bailii Summary, [2015] WLR(D) 408; Smith New Court Securities v. Scrimgeour Vickers [1996] UKHL 3;]
[ Sharland v Sharland SC (Bailii, [2015] UKSC 60, Bailii Summary, [2015] WLR(D) 408; Smith New Court Securities v. Scrimgeour Vickers [1996] UKHL 3;]
6.6 Toteff v Antonas [1952] HCA 16; per DIXON J. at [3]; “As to the last his Honour said: "These representations were said by the plaintiff to be of material effect in inducing him to buy the business as a going concern. I accept that as the fact".
6.7 Magill v Magill [2006] HCA 51; Per GLEESON CJ; at [2]; “First, the appellant alleged that he had suffered personal injury, in the form of anxiety and depression, in consequence of the respondent's fraudulent misrepresentations…..The appellant succeeded at trial, and was awarded damages of $70,000.”
6.8 Brown v Smitt [1924] HCA 11; “The learned trial Judge (Mann J.) accepted the evidence of the respondent and his witnesses, and held that the contract was induced by three false and fraudulent representations on the part of the defendant….No one disputed that the plaintiff is entitled to repayment of the sum of £7559s. if the contract is rescinded……That cause of action, if included in the statement of claim, was not relied on below, and in any event it seems to us that it was the contract, and not, in a legal sense, the establishment of the business, which the fraudulent representations induced.”
6.9 Joseph v Colonial Treasurer (NSW) [1918] HCA 30; “The remaining counts allege that the defendant "maliciously without reasonable or lawful excuse and with intent and for the purpose of injuring the plaintiff in his calling."
6.10 Wilkinson v Osborne [1915] ArgusLawRp 132; “held……that such a contract was opposed to public policy and illegal, and that the bankruptcy notice and the adjudication thereon should be set aside.”
6.11 Toubia v Schwenke (2002)
54 NSWLR 46; Held, defendant in such an action has a particular onus to
demonstrate that the action should be stayed. HELD: (1) In bringing proceedings
under s 66 the
plaintiff need only prove that the defendant made statements for the purpose of
obtaining a financial benefit with the knowledge that they were false or
misleading and thereby obtained a financial benefit. (2) A new trial can only
be granted on the ground of fresh evidence if that evidence could not have been
discovered by the exercise of due diligence before the trial. McDonald v
McDonald (1965) 113 CLR 529 applied. (3) A judgment may be set aside for fraud,
in proceedings brought for that purpose, if the fraud is proved. The plaintiff
must bring forward evidence of fresh facts to prove that fraud but there is no
requirement that such evidence could not have been discovered by the exercise
of due diligence before the trial. McDonald v McDonald applied.
[Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213]
[Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, [1992] HCA 66; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213]
6.12 Buzard v Houston [1886]
USSC 248; those representations were intended by the defendant to deceive
the plaintiffs.
MISCONDUCT/concealment:
7.1 It is a general rule of the court that at the time of the decision, the court will rely on the fact that parties specifically the owner of the AIC have disclosed all material facts about their application in case to the other party as a pre-trial requirement. In other words, it is imperative for the court to rely on the fact that the parties followed the order of the court about submitting their case. [[Brookfield v Yevad Products Pty Ltd [2004]FCA 1164; at [416]It is imperative that parties have access to all relevant documentary evidence before trial in order to advance a party’s case or in order to destroy their opponent’s case.]] Commonwealth Bank of Australia v Quade (1991) 102 ALR 487 case vastly described the variation of the circumstances of individual cases referring to the number of case laws where the fraud of concealment was recognized by the court as misconduct to some extent. It is normally simple for the court to determine if a party is not aware of any document which was in their possession was not disclosed apparently unintentionally or innocent. It does not mean that they can keep the success in their hand in that context. A fresh new evidence case manifests the surprise which causes injustice to the unsuccessful party always will get remedy if the result would have been different. The court generally believes if material documents or information remains undisclosed, parties will not have any knowledge about those or will not cross-examine or argue about those in the proceeding. Commonwealth Bank of Australia v Quade (1991)
102 ALR 487 at [2, 7, 8, 9]; “whether a new trial should be ordered when
documents which should have been discovered were not discovered by the
successful party.” Non-compliance with the rules of court may,
in some circumstances, constitutes fraud. The Full High Court of Australia
in Commonwealth Bank of Australia v Quade observed
that, although a case of failure by a party to comply with an order for
discovery could be distinguished from one where the verdict had been procured
by fraud or perjury, it could conceivably come within the category
of malpractice or fraud, especially where the failure was
deliberate or remained unexplained. Mockery of legal proceedings. Misconduct
of successful party. Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596; at [106]. There, Aikens LJ said: "The principles are, briefly: first, there has to be a 'conscious and deliberate dishonesty in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the 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. Thirdly, the question of the materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence."
7.2 Whether discovery of documents withheld fraudulently or
deliberately: Brookfield v Yevad Products Pty Ltd [2004]FCA 1164. [Concealment/ dishonestly/ fraudulently: Drinkwater v Nadinic; [2016] NSWSC 1733]
7.3 Concealment - Misled: McCann v Parsons [1954] HCA 70.
UK Cases: [AA v Ba; [2014] IESC 49; ]
7.4 Edmund Gaines and Wife v Beverly Chew Rich [1844]
USSC 8;
7.5 Rozier v. Ford Motor Co., 573F.2d1332, 1338 (5th Cir.1978); The record in this case establishes that defendant Ford was aware of a document in its files relevant to the plaintiff's case, sought by the plaintiff through interrogatories, and included within a discovery order, but that it failed to disclose the document or to amend its response to an interrogatory, falsely stating that it was unable to locate such a document. Ford's misconduct prejudiced the plaintiff by denying her information which might well have reshaped the case she ultimately presented to the jury. Under these circumstances, plaintiff's timely motion for a new trial pursuant to Rule 60(b) (3) should have been granted. We reverse the district court's denial of the 60(b)(3) motion and remand this case for a new trial.
7.6 Dixon v. Comm'n of Internal Revenue, 2003WL1216290 (9th Cir.2003); we conclude that the misconduct, including its persistence and concealment, did indeed amount to a fraud on the court.
7.7 Moffat v. United States, 112
U.S. 24 (1884); The United States do not guarantee the integrity of
their officers, nor the validity of the acts of such, and are not bound by
their misconduct or fraud.
[Stone v. Gulf American Fire and Cas. Co., 554 So. 2d 346 (Ala. 1989)]
[Stone v. Gulf American Fire and Cas. Co., 554 So. 2d 346 (Ala. 1989)]
MISCONDUCT OF LAWYER: [Stephens v Hill; [1990] 1 AC 876]
NOTES:
8.1 Inherent Power: Jackson v Sterling Industries Ltd [1987] HCA 23;
at [10] per GAUDRON J; Australian Securities and Investments Commission v
Edensor Nominees Pty Ltd [2001] HCA 1; at [12]; R v Forbes; Ex parte Bevan
[1972] HCA 34; per MENZIES J; at [5];State Rail Authority of NSW v Codelfa
Construction Pty Ltd [1982] HCA 51; at [23]; Jago v District Court of NSW
[1989] HCA 46; per Mason CJ; at [4].
8.2 Judicial power: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; per McTIERNAN J.; at [2]; perKITTO J.; at [7]; per WINDEYER J.; at[12, 14]; Harris v [1991] HCA 9; Applicant A179 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA1547.
9.1 SOURCES OF ABOVE CASE LAWS:
[2003] FedLawRw 2; (2003) 31(1) Federal Law Review 57
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Lacey, Wendy --- "Inherent Jurisdiction, Judicial Power and
Implied Guarantees Under Chapter III of the Constitution"
PAGES: 3,4,6,7,8,
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University of Tasmania Law Review. Vol14 No 2 1995 page 129-142
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Judgments Fraudulently Obtained:
The Forgotten Equity by GINO
DAL POINT-
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ACTUAL FRAUD AND EQUITABLE FRAUD.
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ACTUAL FRAUD AND EQUITABLE FRAUD.
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THE MODERN LAW REVIEW; Volume 18 September 1955 No. 5; page: 441-451
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FRAUD AND SURPRISE IN LEGAL PROCEEDINGS
by L. A. SHERIDAN. [misrepresentation: Slefeld v. Grafton (t.
Edw. 4) 1 Cal.Proc.Ch. 97;.
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FIFTH EDITION BY
SYDNY EDWARD WILLIAMS, OF LINCOLN'S INN, BARRISTER-AT-LAW. (1920)
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KERR ON FRAUD AND MISTAKE
Section 7.—Fraud in Judgments ... ... ... 344
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PhD University of York Law February 2016
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Conscience and Unconscionability in English Equity by Richard
Hedlund.
At page [30]; “Harding similarly argues for the
continued use of equity and its unconscionability test, saying that society
may lose respect for the law if legal rules are strictly applied even where
the outcome would be intrinsically unjust or where claimants are
allowed to exploit the strict application of the rules for personal gain at
the expense of weaker or innocent parties”.
At page [97] ‘Now equity is no part of the law, but a
moral virtue, which qualifies, moderates, and reforms the rigour, hardness,
and edge of the law, and is an universal truth; it does also assist the law
where it is defective and weak in the constitution (which is the life of the
law) and defends the law from crafty evasions, delusions, and new
subtleties, invented and contrived to evade and delude the common law,
whereby such as have undoubted right are made remediless; and this is the
office of equity, to support and protect the common law from shifts
and crafty contrivances against the justice of the law. Equity therefore
does not destroy the law, nor create it, but assist it’.
At page
[36] Judges have, in support of unconscionability, suggested that it
is no different from other general legal terms, which have been given clear
(and thus formalised and predicable) meanings. One comparison in the
1960s was to unjust enrichment. At page [80]; the conclusion
will support the proposition put forward by Hudson, who sees equity’s
conscience as ‘being an embodiment of an objective ethics to which the
individual is intended to aspire and by reference to which her deeds and
misdeeds will be judged by the civil courts’. At page [150]Lord
Eldon said that ‘in equity the conscience is ransacked’, that
is to say, probed as to the facts of the matter. At page [90];
these two roles, which have respectively been referred to as “conscience” and
“equity” are separate yet have much in common. In both roles, the primary
reference is to the specific claim (fraud, breach of fiduciary duty,
rescission and so on), where conscience can be used as the determining factor
as to wrongdoing……. Klinck argues that this reference to “measures” means
rules, namely rules that ‘set standards or criteria’ against which conscience
is judged.
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Equity’s Australian Isolationism; Vol 8 No 2 (QUTLJJ) page-444-469]
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EQUITY’S AUSTRALIAN ISOLATIONISM; THE HON JUSTICE MICHAEL KIRBY AC
CMG.
[Fusion Fallacy, Binding rules.]
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The Journal of the Bar association QLD. Issue 26: May 2008
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Varying and Setting Aside Judgments and Orders.
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[2007]
UNSWLRS 55
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GENERAL FRAUD OFFENCES IN AUSTRALIA by ALEX STEEL.
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MERCER
BEASLEY LAW REVIEW [Page 74-80]
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Notes.THE THEORY OF EQUITABLE
JURISDICTION OVER FRAUD by ARTHUR
HANNOCH;
[fiduciary relationship]; 'Fiduciary' includes a trustee
under any trust, express, implied, resulting or constructive, executor,
administrator, guardian, conservator, curator, receiver, trustee in
bankruptcy, assignee for the benefit of creditors, partner, agent, officer
of a corporation, public, or private, public officer, or any other
person acting in a fiduciary capacity for any other person, trust, or
estate.".
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Columbia Law Review, Vol. 21, No. 3 (Mar., 1921), pp. 268-270
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Fraud as a Basis for Setting Aside a Judgment
Published by: Columbia Law Review Association, Inc.
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The 2012 Judges’ Series
Practical Litigation in the Supreme Court and the Federal Court.
(Wednesday 16 June 2012)
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A Judge’s Viewpoint: the Role of Pleading.
The Hon Justice Brian Tamberlin. Updated by the Hon Justice Steven
Rares.
Catchwords: fraud,
any “condition of mind” (deliberate act, malice,
recklessness), damages or exemplary damages
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