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Local Court 11 November 2021

Liristis v Insurx Pty Ltd (No 2)

[2021] NSWLC 13

Fraud & dishonesty

Citation: Liristis v Insurx Pty Ltd (No 2) [2021] NSWLC 13
Court: Local Court of New South Wales
Date: 11 November 2021
Judge(s): Tsavdaridis LCM

Background

The plaintiff, a self-represented litigant, brought proceedings in Fairfield Local Court against two defendants, claiming approximately $47,800. In October 2021, he filed a second notice of motion seeking summary judgment, a transfer of venue to Campbelltown Local Court, and (orally, on the day of hearing) the disqualification of the presiding magistrate for actual or apprehended bias. The summary judgment application was abandoned in submissions.

The motion was supported by two affidavits, each purportedly affirmed before a Justice of the Peace. During the hearing, the magistrate noticed significant irregularities in the jurat clauses (the formal attestation section at the end of each affidavit confirming that it was sworn or affirmed before an authorised witness). The two jurat clauses appeared identical, slightly blurred rather than crisply printed, and bore the same JP's signature and rubber stamp, raising the inference that one jurat had been copied and pasted onto the second affidavit.

When the magistrate raised this concern from the bench, the plaintiff produced a freshly re-sworn version of the second affidavit during the morning adjournment. The magistrate found this may have addressed the evidentiary deficiency but did not exonerate anyone involved in the original making and filing of what appeared to be a false document.

  • Whether the proceedings should be transferred from Fairfield Local Court to Campbelltown Local Court on the plaintiff's application
  • Whether the magistrate should disqualify himself on the grounds of actual or apprehended bias
  • Whether the plaintiff had engaged in impropriety by making, filing, and using affidavits whose jurat clauses appeared to have been copied and pasted, likely without the JP's knowledge

Decision

Venue application: The magistrate dismissed the application to transfer the proceedings to Campbelltown Local Court. The plaintiff's stated reasons, including that he had originally filed at Fairfield in anticipation of moving to the area, had since been cured by his decision to remain at his home address, and that he could not travel to Fairfield due to medication and a fractured vertebra, were not found to be sufficient grounds to warrant a venue change.

Bias application: The magistrate refused the oral disqualification application. The application was made without notice to the defendants or the court, ran for over 45 minutes in a busy list court, and appeared to be read from a pre-prepared document. The magistrate assessed both the actual bias and apprehended bias grounds against the established legal tests and concluded neither was made out.

Affidavit irregularities: The magistrate found the two jurat clauses appeared to have been copied from an earlier affidavit in the same or related proceedings and pasted onto subsequent affidavits. The effect was to create the misleading impression that the plaintiff had attended before the JP who signed and stamped each document, when it appeared likely he had not. Making or using a false document is a criminal offence. The magistrate directed the Registrar to refer the matter, together with both affidavits and the judgment, to NSW Police for investigation and consideration of whether charges should be laid.

Orders Made

  • The plaintiff's notice of motion dated 8 October 2021 (filed 12 October 2021) is dismissed.
  • The plaintiff's oral application for the magistrate to disqualify himself is refused.
  • The Registrar of Fairfield Local Court is directed to forward to NSW Police Force, for investigation and consideration of whether criminal charges should be laid for making or using a false document, copies of: this judgment; the first affidavit apparently affirmed on 10 September 2021; and the second affidavit apparently affirmed on 8 October 2021.
  • Costs reserved (the court indicated it would hear the parties on costs).

Key Takeaways

  • Jurat clauses that appear visually identical across separate affidavits, and which are blurred rather than crisply printed, may prompt a court to infer that the clause was copied and pasted, raising serious questions about the integrity of the documents and the circumstances in which they were made.
  • A Local Court magistrate has the power to refer apparent document fraud to NSW Police, and this decision demonstrates a willingness to exercise that power even where the affidavit is subsequently re-sworn before a different authorised witness.
  • An oral application for disqualification on grounds of actual or apprehended bias, made without notice to the other parties and running for more than 45 minutes, will not automatically succeed; the court applied established High Court principles requiring a real, not merely fanciful, apprehension of bias in the mind of a fair-minded lay observer.
  • A venue transfer application requires cogent grounds; the fact that a plaintiff originally chose a venue in anticipation of relocating, but then did not relocate, did not of itself constitute sufficient reason to transfer proceedings to a different court.
  • Where a self-represented litigant produces a freshly executed version of a defective affidavit during the same hearing, this may cure the evidentiary gap but does not address any separate criminal liability that might arise from the earlier making and filing of a false document.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), ss 15, 56, 57, 133
- Uniform Civil Procedure Rules 2005 (NSW), rr 8.2, 36.10, 36.11, 49.6, 49.16, Form 45
- Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW)
- Local Court Practice Note Civ 1, cl 10

Cases:
- Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
- British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
- Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
- Halpin v Lumley Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
- South Western Sydney Area Health Services v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16
- Collier v Country Women's Association of NSW [2018] NSWCA 36
- Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
- Ada Evans Chambers P/L v Santisi [2014] NSWSC 538
- Leighton International v Hodges; Thiess v Reinforced Earth [2012] NSWSC 458
- Thiess v Parsons Brinckerhoff Australia [2015] NSWSC 326
- Magjarraj v Asteron Life Limited [2009] NSWSC 1433
- Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
- Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
- Antonio Di Liristi v NSW Public Trustee and Anor [2021] NSWSC 1347