Background
Kevin Stephen Davies sought leave under r 2.27A of the Federal Court Rules 2011 (Cth) to file an originating application and supporting documents. The proposed proceeding sought to set aside the judgment in Davies v Lazer Safe Pty Ltd [2018] FCA 702, which had been upheld on appeal in [2019] FCAFC 65, on the ground that it had been obtained by fraud.
Davies alleged that court-ordered product descriptions had replaced a “counting” account with a “weighting as to sensitivity” account, and that Lazer Safe had falsely answered interrogatories by saying its systems had no display device for guarding functionality. He contended that these matters were independently sufficient frauds. He had previously been refused leave to file applications seeking to set aside the same judgment.
The Court’s Holding
Colvin J dismissed the leave application without an oral hearing. A proceeding to set aside a final judgment for fraud requires an allegation of actual fraud: deliberate dishonesty or a conscious intention to deceive by identified persons, with proper attribution where a corporation is concerned. The allegations must be exactly particularised.
The proposed documents alleged, at most, that the product descriptions and interrogatory answer were untrue. They did not identify a person who deliberately presented false material to affect the outcome, articulate a deliberate intent to deceive, or attribute a relevant state of mind to Lazer Safe. Falsity, and even alleged recklessness, was insufficient. Given the finality interests involved, the proposed proceeding was plainly an abuse of process and leave was refused. The Court also declined to permit a further leave application under the same filing direction.
Key Takeaways
- Setting aside a final judgment for fraud requires a properly particularised case of actual, deliberate fraud.
- An allegation that evidence or information was false does not by itself establish fraud capable of impeaching a judgment.
- Repeated attempts to relitigate a final judgment without a viable actual-fraud case may be an abuse of process.
Why It Matters
The decision underscores the narrowness of the fraud exception to finality in litigation. Parties seeking to reopen a concluded case must plead coherent, exact facts showing conscious dishonesty that undermined the judicial process—not merely identify allegedly incorrect material from the original proceeding.
It also confirms that the Federal Court may refuse leave on the papers where the proposed filing is facially defective and would unjustifiably require the opposing party to respond to an abusive attempt to relitigate.