Johnson v Mackinnon (No 2)

1. [1]

   The power to reconsider under UCPR r 36.16 is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise, and is to be exercised only in special circumstances, such as where the existing judgment or order is shown to be affected by some relevant irregularity (such as a failure to afford a party a proper opportunity to be heard), or by a misapprehension of law or fact or of a party’s evidence or submissions, which cannot be solely attributed to the neglect or default of the party seeking a reopening, and not to provide a backdoor method by which an unsuccessful appellant can re-argue their appeal. In the context of appeals, it is not the purpose of r 36.16 to provide an avenue to raise new grounds of appeal that were not advanced in the appeal, to reagitate arguments that have already been considered by the Court, or to complain of wrong decisions by the appellate court: [5].

2. [2]

   The numerous grounds raised in the application involve:

3. [3]

   No such irregularity oversight or misapprehension as would justify reconsideration under r 36.16 is apparent: [28]; [59]; [61]; [67]; [70]; [89]; [95].

4. [4]

   Applications under r 36.16 which are no more than an attempt to reargue an unsuccessful appeal should not be made and applicants should not expect that in future this Court will address plainly unmeritorious applications such as the present in the detail that is contained in this judgment. The lack of merit in the appellant’s application warrants the appellant being ordered to pay the respondent’s costs of the motion on an indemnity basis: [96].

5. [1]

   THE COURT: In a judgment delivered on 21 July 2021 (“the first judgment”), [1] the Court dismissed with costs the appellant Ms Johnson’s appeal from judgments of Stevenson J in the Equity Division, Commercial List, by which she was held liable to the respondent Mr Mackinnon for damages in the sum of $200,000 for misleading and deceptive conduct. [2] Brereton JA’s conclusions were summarised as follows: [3]

6. [2]

   Macfarlan JA and Simpson AJA agreed, with the presently important exception that their Honours did not agree with the conclusion summarised in [293] insofar as Brereton JA would have upheld ground 12. While Brereton JA was of the opinion that, applying the Briginshaw standard, it was not open to conclude, as his Honour did, that Ms Johnson knew the contents of the Proposal, Simpson AJA, with whom Macfarlan JA agreed, upheld the primary judge’s finding that Ms Johnson was aware of the proposal and the falsity of some, at least, of its contents. [4] Thus the majority of the Court upheld the finding that Ms Johnson knew the contents of the Proposal, and that they were false. The ultimate judgment of the Court therefore did not depend on Brereton JA’s reasoning that Ms Johnson was in any event liable for the Proposal Representations, on the basis that as one of the partners in STC, she made the Proposal Representations to the actual and potential investors to whom the Proposal was provided, including Mr Mackinnon. Further, the appellant’s liability did not rest only on the Proposal Representations: her liability was upheld also on the basis of the Foster Representations.

7. [3]

   By motion filed on 4 August 2021, Ms Johnson seeks that the judgment of 21 July 2021 be set aside pursuant to UCPR r 36.16 or the court’s inherent jurisdiction, and that the appeal be allowed, or reheard by the court differently constituted. The court directed written submissions on the motion. Ms Johnson’s submissions (of 8 pages) were lodged on 30 August 2021; Ms Mackinnon’s (of 13 pages) on 13 September 2021, and Ms Johnson lodged submissions in reply on 23 September 2021.

8. [4]

   This judgment assumes familiarity with the first judgment and uses the same defined terms.

Application to recall and reopen

1. [5]

   Uniform Civil Procedure Rules 2005 (NSW), r 36.16, provides for the setting aside of a judgment upon a motion filed before, or within 14 days after, it is entered, or if it is a default judgment or one given in the absence of a party. The judgment of this Court was neither a default judgment nor given in the absence of a party. The present motion was filed within the relevant 14-day period. However, that does not of itself entitle the applicant to a reconsideration of the judgment. The power to reconsider on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. [5] The power is to be exercised only in special circumstances, such as where the existing judgment or order is shown to be affected by some relevant irregularity (such as a failure to afford a party a proper opportunity to be heard), or by a misapprehension of law or fact or of a party’s evidence or submissions, which cannot be solely attributed to the neglect or default of the party seeking a reopening, and not to provide a backdoor method by which unsuccessful appellants can re-argue their appeal. [6] And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case; in particular, it is not the purpose or scope of r 36.16 to provide an avenue to raise new grounds of appeal that were not advanced in the appeal, to reagitate arguments that have already been considered by the Court, or to complain of wrong decisions by the appellate court. [7] In this respect, there is a distinction between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for reconsideration, involves error. [8]

2. [6]

   The court’s inherent powers to set aside judgments in certain circumstances are subject to at least the same constraints, imposed by the public interest in the finality of litigation, as is the statutory power to re-open on an application made on motion filed within 14 days after entry of judgment, which has been addressed above. Accordingly where, below, it is stated that no basis for reconsideration under r 36.16 has been identified, the same conclusion applies to the inherent jurisdiction.

3. [7]

   The appellant’s submissions on the motion were collected under three headings: miscarriage of justice/procedural unfairness; legal errors; and factual errors. However, the issues raised in the submissions do not necessarily fit the description of the headings under which they reside. Moreover, many issues were to a greater or lesser extent repeated under different headings. The alleged “legal errors” and “factual errors” are often expressed discursively and do not, as one might have expected, clearly identify any alleged error, in the manner that might for example be stated in a Notice of Appeal. Moreover, it is not always clear whether these are said to be errors of the trial judge, or of this Court. The appellant’s reply submissions conveniently collected in three columns and enumerated her submissions in chief, together with the respondent’s submissions, and then the appellant’s submissions in reply. However, the submissions in reply were much more extensive than the submissions in chief, and raised many new issues which were not properly in reply at all.

4. [8]

   As a result it is difficult to distil and analyse in a systematic way the appellant’s complaints. To avoid repetition and to assist in understanding, this judgment does not deal seriatim with each submission, but consolidates repeated or related issues, and endeavours to arrange them in a logical sequence. For convenience, it adopts the enumeration of the consolidated submissions to identify where the relevant submission can be found; the suffix “R” indicates that the relevant submission is to be found in the “Reply” column. In the text (but not the footnotes) paragraphs of the first judgment are referred to by J followed by the paragraph number, for example, “J12” denotes the first judgment at [12].

Issues relating to the case pleaded against the appellant

1. [9]

   The appellant’s overarching and often repeated complaint was that there was no pleading against her personally; that the amendments allowed by the primary judge did not permit a case to be run against her wider than that which had been pleaded; and that this Court overlooked its own conclusion (in J79) as to the effect of the pleading. [9]

2. [10]

   The argument was put in various different ways: under the heading “Misinterpretation of Pleading Amendments”, it was submitted that the court erroneously concluded at J89 “that by doing no more than specifying the previously unspecified agents” in ACLS par 20, the pleading was converted from a pleading against Foster alone to one by which it became part of the pleaded case that Ms Johnson had by silence misrepresented that Foster was not involved with STC; [10] that the appellant never understood that merely by naming the previously unspecified agents, the pleading was converted into one in which she was alleged to have made the representations (including the added representation by silence) that prior to the amendment had only been alleged against Foster; [11] and that the Court overlooked what it had determined in J79 and proceeded contrary to that holding. [12] Although initially it appeared to be submitted only that the “misrepresentation by silence” case was never pleaded against Ms Johnson, and that the amendments were ineffective to articulate such a pleading, by the submissions in reply it appeared to be argued that no case was pleaded personally against the appellant at all, including in deceit. [13]

3. [11]

   In the first judgment it was said, in respect of the ACLS as it was before the amendments allowed by the trial judge (emphasis added):

4. [12]

   It is to be noted, from (4), that it was already alleged that Ms Johnson was one of those who made the Proposal Representations. This is entirely overlooked in the appellant’s submissions on the present application.

5. [13]

   After describing the amendments which were permitted by the primary judge on the second day of the trial, the first judgment continued:

6. [14]

   The appellant submitted that having regard to subpars (2), (5), (6) and (7) of J79, the conclusion at J89 that “by doing no more than specifying the previously unspecified agents in [FACLS] par 20, the pleading was converted from a pleading against Foster alone to one by which it ‘first became part of the pleaded case that Ms Johnson had by silence misrepresented that Foster was not involved with STC’” was erroneous. However, the first judgment explained that the effect of the amendments was not only to specify the previously unspecified agents of Foster referred to in FACLS par 20, and to add the new pleaded misrepresentation by silence in FACLS par 20(c)(i) (the Foster Representation), but also to clarify – through the reference to her in FACLS para 33 by the amended FACLS par 7A – that it was alleged that Ms Johnson personally had engaged in misleading and deceptive conduct by making the representations pleaded in FACLS par 20 (including the Foster Representation), in which she was now specifically mentioned, as well as those in FACLS par 21, in which she had always been mentioned:

7. [15]

   Thus, contrary to the thrust of the appellant’s submission, the first judgment did not proceed on the basis that merely by adding an express reference to the fifth defendant in the chapeau to ACLS par 20, the pleading now referred to her in her own right: that amendment had to be seen in the context of the allegation at FACLS par 33, as amended, to the effect that as a partner in STC she had thereby engaged in misleading and deceptive conduct. The appellant’s submissions on the present application do not really engage with the function and effect of ACLS par 33 as amended, merely asserting, purportedly in reply, that this amendment was “wholly inadequate” to convey that the pleading was thus converted into one in which she was sued personally. [14] The first judgment was to the contrary – not by oversight or misapprehension, but as a considered conclusion.

8. [16]

   Whether the amended pleading articulated a case against the appellant personally in respect of the Foster non-disclosure, and whether she appreciated that there was such a case, were considered in the first judgment (emphasis added, footnotes omitted):

9. [17]

   Contrary to Ms Johnson’s submissions, the first judgment did not overlook in J89, J98 and J101, what had been said in J79. Subject to the effect of the condition imposed by the primary judge, to which we shall return, there is no inconsistency between the statement in the first judgment at J79(2) that the representations in ACLS par 20 were not (prior to the amendments) propounded against anyone other than Foster, and the subsequent conclusion that as a result of the amendments it became part of the case that Ms Johnson personally had made and was liable for the Foster Representation. All J79 did was to summarise the relevant effect of the pleading, before the amendments; it was not a finding as to the effect of the pleading after the amendments. The statement in J99, “From the outset, [21] pleaded the Proposal Representations specifically against Ms Johnson”, is entirely consistent with J79(4), which recorded that the earlier form of the pleading (emphasis added) “(4) did allege that Ms Johnson was one of those who made the “Proposal Representations” referred to at [21]”. Otherwise, J99 refers to Ms Johnson’s request for particulars as indicative of a belief on her part that the representations in ACLS pars 20 and 21 might be relied on to establish that she was liable to the plaintiff, a matter which was made express by the response to the particulars. The first judgment observed that the primary judge was satisfied that Ms Johnson had long understood that the allegations in par 20 were directed to her, amongst others, [15] and this Court saw force in that observation. [16] Contrary to the appellant’s submissions, there is nothing in J99 which is inconsistent with what is stated in J79.

10. [18]

    The first judgment appreciated that the amendments were “no minor matter”, [17] and explained how, through the vehicle of FACLS par 33, the pleading articulated the basis of the appellant’s liability, and concluded that she had not been denied a fair and reasonable opportunity to deal with the issues raised. The appellant’s present complaints are ultimately no more than a contention that this Court’s considered conclusions were wrong. If those conclusions be wrong, it is not as a result of inadvertence, misapprehension or oversight, but by a deliberate process of reasoning, for which the proper remedy is an appeal. They are not amenable to reconsideration under r 36.16.

11. [19]

    The appellant contends that the amendments permitted by the primary judge could not have had the effect of propounding a case that she was personally liable, because of the condition imposed by the primary judge “that it did not give the respondent a new cause of action which he had not up until then pleaded”, [18] or “that the respondent would not be permitted to contend that the appellant had a greater liability than she would have had as a limited partner of a limited partnership” – which is to say, her liability should have been limited to the amount referred to in respect of a limited partner in Partnership Act 1892 (NSW), s 60, which in the circumstances was nil. [19]

12. [20]

    First, the appellant’s submission misstates the condition which his Honour imposed. It is not correct that the condition of the amendments was that the respondent would not be permitted to contend that the appellant had a greater liability than she would have had as a limited partner of a limited partnership. In the course of the application for leave to amend, the following transpired in argument (emphasis added): [20]

13. [21]

    Subsequently, his Honour said: [21]

14. [22]

    And (with reference to the word “limited”): [22]

15. [23]

    In the No 3 judgment, dealing with the application for leave to amend, his Honour said (emphasis added): [23]

16. [24]

    In essence, what was intended – and apparently understood – was that the removal of the word “limited” was not to expose Ms Johnson to liability as a general partner on a cause of action which had not already been pleaded against her, and in particular for the debts of the partnership on the basis that all the partners are liable for its debts; but this condition was not to affect her liability on the causes of action for misrepresentation and deceit that were already pleaded against her. The condition was not intended to, and did not, have the effect that the appellant could not be personally liable on those causes of action. It was intended to preclude the respondent from mounting a new case, based on liability as a general partner for the debts of the partnership.

17. [25]

    Secondly, at no stage in the appeal did the appellant contend – in the notice of appeal, written submissions or oral submissions – that the basis on which she was held liable by the primary judge was contrary to the condition, or that the condition required that her liability be limited to nil. She complained that the judge misinterpreted the pleadings, and that the amendments ought not have been permitted, but not that the condition precluded her being held liable on the causes of action in respect of which she was, nor for the amount for which she was. Thus, save insofar as it relates to the alternative basis of liability for the Proposal Representations on which Brereton JA relied, which is addressed below, this is an attempt to agitate new grounds which were not raised in the appeal.

18. [26]

    In purported reply, on a quite different issue, [24] the appellant made a submission to the effect that to hold her responsible for the Proposal Representations on the basis that she was a partner (as Brereton JA did in finding her liable for the Proposal Representations notwithstanding that he would have upheld ground 12, being unsatisfied that Ms Johnson was aware of the existence and contents of the Proposal and that they were false) was impermissible, in contravention of the Condition (and also because the effect of Partnership Act 1892 (NSW), s 67, was not taken into account – an issue dealt with later). Even if this submission be correct, it would not avail Ms Johnson. First, quite independently of the Proposal Representations, the Court unanimously upheld her liability on the basis of the Foster Representation. Secondly, the majority of the Court did not allow ground 12, and did not need to rely on the alternative basis on which Brereton JA did for upholding Ms Johnson’s liability on the basis of the Proposal Representations.

19. [27]

    However, the submission is not correct. Brereton JA’s reasoning was not that as a general partner, Ms Johnson was liable for the liabilities of the partnership (which would have been a cause of action not already pleaded against her, on the basis that she was a general partner, and would have been precluded by the condition); rather, she was considered liable on the basis that she, as one of the partners who constituted STC, must be regarded as one of those responsible for the Proposal, on a cause of action already pleaded in FACLS pars 3, 7, 7A, 21 and 33. In particular, par 21 always pleaded that the first to fifth defendants and twelfth defendant made the Proposal Representations, and par 33 pleaded that the first (later defined as including the fifth) defendant thereby engaged in misleading and deceptive conduct. As the primary judge said, in the passage extracted above, was his preliminary view, “She must be taken to have understood – any reasonable reader of this must be taken to have understood that the infelicitous assertions against the first defendant were in substance assertions against the members of the first defendant as they are pleaded to be”.

20. [28]

    No such oversight or misapprehension as would justify reconsideration under r 36.16 is apparent.

21. [29]

    The appellant submits that “the respondent should not have been permitted to run a case that went well beyond the way his case was opened. In particular, the respondent’s case was opened on the basis that he would not have loaned his money if he had known that what Mr Foster was doing in STC was the same as what he was alleged to have done in the newspaper articles”. [25] As elaborated in her submissions in reply, [26] Ms Johnson contends that in opening submissions at the trial, the respondent’s counsel, in responding to an observation of his Honour that though he had heard of the Sensaslim litigation “I can’t take that into account here”, said: [27]

22. [30]

    The appellant submits that this somehow had the consequence of confining the case to one in which her liability depended on it being established that Mr Foster was doing in STC the same as what he was alleged to have done elsewhere. However, it is not a statement limiting the case in that way at all, but simply an explanation of the potential relevance of the Sensaslim litigation. Moreover, although some grounds of appeal alleged errors in relation to causation, none complained that the respondent was not confined to a case opened in this way. This Court did not overlook any such complaint, because none was raised before it.

23. [31]

    The appellant submits that the amendment of the pleadings permitted on day two of the trial was a denial of natural justice and amounted to trial by ambush, and in particular that the amendments were opposed by her solicitor advocate, who is said to have “expressly reserved the appellant’s position so that the already commenced cross-examination of the respondent could continue”; that the trial judge should not have taken advantage of the solicitor advocate’s inexperience, given that he had announced at the pre-trial case management hearing that he was appearing solely to make a no case submission; and that Ms Johnson’s mental health precluded her from continuing to represent herself, and her solicitor had been involved in the matter for less than a month before trial. [28] In her submissions in reply, Ms Johnson contended that the solicitor advocate who appeared for her “made clear to the trial judge that a twenty minute adjournment was not sufficient for him to form a considered view of the ramifications of the respondent’s amendments” and that “he indicated to the trial judge that to proceed was essentially a gamble that was unfair for him to feel forced to take”. In fact, Mr Argy sought an adjournment of “perhaps twenty minutes at least to get instructions”, [29] which was granted, and subsequently said: [30]

24. [32]

    In substance, this appeared to be a complaint about the grant of leave to amend, which was an issue in the appeal, and was considered in detail in the first judgment, in which this Court recognised that the amendments were of significance, [31] but determined that there was no error in permitting them, not least because no claim of unfair prejudice was made at the time. [32] This conclusion was reached notwithstanding recognition that it was possible that permitting the amendments might have required Ms Johnson to reshape her case and potentially call additional evidence. [33] Ultimately, the Court was unpersuaded that Ms Johnson was deprived of a fair and reasonable opportunity to meet the case against her, first because no such objection was taken at the time, and secondly because she did not show that the amendments had that prejudicial effect. [34] Notably, despite the claims that she did not understand that such a case was pleaded against her personally, it has not been shown – or even suggested – that Ms Johnson’s defence would have been conducted any differently, or that she was deprived of the opportunity of adducing or submitting anything in opposition to the causes of action on which she was found liable. The evidence she adduced and the submissions made on her behalf at trial tell to the contrary. She filed an affidavit of 980 paragraphs. The hearing commenced on 5 February 2018; the amendments were allowed on 6 February; the hearing continued until 9 February when it was adjourned until 14 March, and then until 13 June when it continued until 15 June, then on 12 to 13, 26 and 27 July, concluding on 10 September 2018. There was no lack of time for Ms Johnson to advance appropriate defences, after the pleading had been amended.

25. [33]

    To this point, this complaint appeared to be no more than an attempt to reagitate the grounds on which the appellant had unsuccessfully impugned the grant of leave to amend. However, in submissions in reply, Ms Johnson said that her present complaint was that in disposing of the grounds of appeal concerning the grant of leave to amend, this Court misinterpreted the amended form of FACLS par 20, so ultimately, this became another emanation of the submission that the Court erroneously took the view that Ms Johnson was sued in her own right, when no such case was pleaded. That there was no such misinterpretation has been explained, above. [35]

Issues relating to Partnership Act “defences”

1. [34]

   Another repeated theme of Ms Johnson’s complaint is that this Court overlooked that:

   1. (1)

      if unlawfulness were established, the partnership was immediately dissolved pursuant to Partnership Act, s 34, the consequence that Ms Johnson could have no liability as a partner; and

   2. (2)

      even if she did, it was capped at zero by reason of Partnership Act, s 60, given the condition imposed on leave to amend “that essentially preserved the appellant’s protection as a limited partner”.

2. [35]

   The appellant submitted that the effect of sections 34, 60(1) and 67 of the Partnership Act were not considered, at all, or in the context of paragraphs 47 and 48 of the Amended Commercial List Response, which pleaded:

3. [36]

   Partnership Act, s 34, provides that a partnership is dissolved by the happening of any event which makes it unlawful for the business of the firm to be carried on. This issue was addressed by the primary judge in the No 7 judgment, as follows: [36]

4. [37]

   The issue was not raised in the appeal. No complaint concerning his Honour’s conclusion, set out above, was made in the Notice of Appeal. No ground of appeal, nor any written or oral submission, referred to s 34, nor to s 60 or s 67. So far as we have been able to ascertain, there was no reference in the pleadings to s 60 or s 67. The Court cannot be said to have overlooked issues that were never raised before it. This is an attempt to raise on reconsideration new complaints that were not advanced in the appeal. That would suffice to dispose of these grounds, but we will nonetheless address them.

5. [38]

   The appellant submits that the operation of the partnership as an instrument of fraud was unlawful, and that the STC partnership was dissolved pursuant to s 34 the moment any activity commenced that was proscribed by law, and that thereafter she was no longer a person to whom the misleading and deceptive acts of Larter could be imputed. In reply submissions, this was said to be “another example of how the misinterpretation of [ACLS par 20] has tainted the other issues”, and it was submitted that “if the appellant was liable only as a partner then the point of amending her defence [presumably, by inserting pars 47 and 48, set out above] was to have the court accept that if the partnership engaged in unlawful conduct, the partnership was thereupon dissolved so that the appellant could not have been liable qua a partner”. [37]

6. [39]

   These submissions misconceive the effect of s 34, which is that partnerships which are legally constituted at inception for the purpose of carrying out a business which at that time is lawful, may become illegal at a later date either because of a change in factual circumstances, or because of a change in the law. One example of a change in factual circumstances is the outbreak of war between the host nation of the partnership and that of an alien partner, rendering partnership with an enemy alien illegal. [38] Another is if a partner becomes disqualified (for example, a partner is struck off the relevant register of practitioners). [39] There is a distinction between “the happening of any event which makes it unlawful for the business of the firm to be carried on”, [40] and the carrying on of the partnership business in an unlawful manner. Illegalities in the course of the conduct of a partnership’s business do not bring about dissolution under s 34. No circumstances or law rendering the business of the partnership illegal per se has been identified.

7. [40]

   Partnership Act, s 60(1), provides that the liability of a limited partner to contribute to the liabilities of the partnership is “subject to this Part” not to exceed the amount shown in relation to the limited partner in the register. Section 67 relevantly provides as follows:

8. [41]

   Ms Johnson was not held liable to contribute to, or for, liabilities of the partnership, but personally liable for misleading and deceptive conduct in which she as one of the partners engaged. Section 60 does not apply. Moreover, although it was submitted (purportedly in reply) that Ms Johnson was “obsessive about s 67 to the point where she studiously avoided taking any step that would risk her limited liability”, [41] this is not consistent with the various acts taken by her in providing her image for advertising purposes, instructing solicitors, and engaging with Mr de Klerk, which appear to involve taking part in the management of the business, as a result of which she would not be entitled to rely on s 60, even if it otherwise applied.

Issues relating to the conduct of the trial

1. [42]

   The appellant’s submissions advanced a number of complaints which were, in substance, complaints about aspects of the conduct of the trial.

2. [43]

   First, the appellant complains that the substitution of Mr Mackinnon for the previous representative plaintiff Mr Baker “occurred in suspicious circumstances”, and that the primary judge did not allow whether Mr Baker had been engaged in promoting the scheme to be explored in cross-examination of the respondent. [42] Then, in expansive submissions purportedly in reply, it was submitted that “The circumstances in which the Respondent became the representative plaintiff were not known to the appellant’s solicitor and are only with hindsight seen to be sufficiently suspicious that the Court would want to see ventilated the matters the appellant sought to draw to the trial judge’s attention as a possible attempt to pervert the course of justice by concealing a key factor that led to the respondent and other class members investing”, and for the first time elaborated on that submission at length. [43]

3. [44]

   Next, the appellant complains that this Court overlooked how cross-examination of the respondent was curtailed by the primary judge, in the context of a finding that the respondent was not challenged on his understanding of the proposal, and related interventions. [44] Elsewhere, it is submitted that the primary judge curtailed cross-examination of the respondent on his understanding of the proposal and reliance on it, depriving the appellant of an opportunity to make good a defence of those allegations; and declined to recuse himself. [45] These appear to be complaints of error by the primary judge. [46]

4. [45]

   Insofar as the complaint is that this Court overlooked these issues, that is because they were not raised before it. The order for substitution was made well before the trial, and was not the subject of any appeal. The primary judge gave reasons for declining the application that he recuse himself, [47] and that decision was not impugned in the appeal. Although ground 31 in the Notice of Appeal was that “his Honour erred in unduly intervening in the conduct of the hearing by interrupting cross-examination of the respondent’s witnesses and thereby causing a miscarriage of justice”, that ground was not referred to, let alone elaborated, in the appellant’s written submissions, or orally. It is therefore not surprising that this Court did not address it, particularly given that such a ground would have required close and detailed reference to those passages in the transcript where the interruptions complained of occurred. The court is not required to deal with grounds which though included in a notice of appeal are not pressed in written or oral submissions. An application under r 36.16 is not an occasion to articulate, belatedly, submissions on an issue which could have been, but was not, advanced on the hearing of the appeal.

Issues relating to fact finding

1. [46]

   A number of complaints are made in the appellant’s submissions about aspects of the fact-finding process which resulted in conclusion adverse to her. It is often far from clear whether these complaints are directed at the primary judge or at this Court.

2. [47]

   The crucial findings of fact adverse to Ms Johnson which were upheld by this Court were that:

   1. (1)

      (by majority) Ms Johnson knew of the Proposal and its contents and that at least in part they were false; [48]

   2. (2)

      (unanimously) Ms Johnson knew that Foster was using the alias “Mark Hughes”; [49] by September 2013, “strongly suspected” that investors’ funds were being misappropriated; [50] participated in steps to conceal Foster’s involvement; [51] and knew that his involvement could not be revealed. [52]

3. [48]

   The appellant submitted that application of the principles in Briginshaw, in the circumstances of the appellant’s position as a solicitor and officer of the court, should have precluded the Court from being comfortably satisfied of her guilt, in particular having regard to the circumstance that no other defendants appeared, the circumstances in which Mr Mackinnon was substituted for Mr Baker as representative plaintiff, allegedly inconsistent statements made by Mr de Klerk about reliance, the ‘objective reasonableness’ of the appellant’s understanding of the business, and ‘the antipathy between the appellant and Foster’ making it ‘unsafe to conclude that she had conspired with Foster to conceal his involvement’. [53] In reply, the appellant supports Brereton JA’s (minority) view that she was not shown to have had knowledge of the contents of the Proposal. [54]

4. [49]

   In the first judgment, the Court plainly had regard to the Briginshaw standard. Applying that standard, Brereton JA would have upheld ground 12; applying that standard, Macfarlan JA and Simpson AJA would not. In both cases, however, those were plainly considered conclusions having reviewed the evidence. They were not the result of irregularity, misapprehension or oversight. Indeed, the difference of opinion on this issue shows that this was not a matter of inadvertence or oversight but reflected considered albeit differing views of the Court. It is simply not apparent how the circumstance that no other defendant appeared, or the circumstances of the substitution of Mr Mackinnon for Mr Baker as representative plaintiff, or supposed inconsistencies in statements made by Mr de Klerk on the (irrelevant) question of reliance by him, could bear upon the critical factual conclusions referred to above.

5. [50]

   Purportedly in reply on a different issue, [55] the appellant submitted that the majority was mistaken in referring to “conversations” between Ms Johnson and Mr and Mrs Mackinnon, [56] because the unchallenged evidence was that the appellant had never spoken to Mr Mackinnon, and had only one brief conversation with Mrs Mackinnon in November 2014 (more than a year after they had invested). That reference was in the context of Simpson AJA considering whether it was sufficiently established that Ms Johnson was aware of the Proposal and the falsity of at least some of its contents – not in the context of any question of “proximity” (as is suggested in the appellant’s reply submissions). The conversation with Mrs Mackinnon, which followed a call from Mr Mackinnon, on 3 November 2014, was relevant because in it, Ms Johnson said “she had asked Ms Larter to take her name off the Proposal and she would be following up” – an admission that she was aware of the Proposal, and that her name was on it. Mr Mackinnon had initiated the conversation by making an earlier call. [57] To the extent that her Honour’s reference to “conversations” with both did not precisely reflect this, it was immaterial.

6. [51]

   Otherwise, this ground in substance is a complaint that, applying the correct standard of proof, this Court ought not have been satisfied that the appellant had engaged in misleading and deceptive conduct, or deceit. It is, therefore, not a complaint of irregularity, misapprehension or oversight such as might warrant relief under r 36.16, but of error, for which the remedy is an appeal.

7. [52]

   The appellant made four submissions pertaining to the evaluation of her own evidence:

   1. (1)

      there was a “failure fairly to assess the appellant’s credit in the context of her mental breakdown and a failure to appreciate her understanding of the difference between Mr Foster’s intended and actual investment in STC …”. [58] This is elaborated in submissions in reply, which assert that the appellant’s mental state “underpins the exceptional circumstances surrounding the trial” and that “the primary judge was fully conversant with the appellant’s frail mental state and failed to afford her any consideration, especially when making findings on credit”; [59]

   2. (2)

      there was a “failure to appreciate that the business of the partnership was being carried on in Qld and that the appellant had no role in the operation and could not be expected to know who was employed there or their roles, including whether there was a person called Mark Hughes, and who the investors or potential investors were”; [60]

   3. (3)

      there was a “failure to consider the reasonableness of the appellant’s belief that there was a legitimate business being carried on by STC …”; [61] and

   4. (4)

      the Court failed to take into account, in assessing the reasonableness of Ms Johnson’s attempts to persuade Ms Larter to reinstate Mr Holmes as trader to recover any losses before any liability to investors matured, that the terms of Mr Mackinnon’s loan were that the principal was not repayable for three years; and failed to consider the reasonableness of her view that Foster had engaged in no more than unauthorised trading of partnership funds, and that Mr Holmes’ reinstatement would be able to ameliorate the adverse consequences. [62] In purported reply, this was said to be probative of her lack of knowledge that investors’ money was being stolen and misappropriated. [63]

8. [53]

   The effect of these submissions is that they ought to have resulted in the court being unsatisfied that Ms Johnson knew that Foster was using an alias, or that investors’ moneys were in jeopardy.

9. [54]

   It is not always clear whether these are said to be failures by the primary judge or by this Court. If the former, they are attempts to agitate grounds of complaint that were either not previously advanced or were rejected. As observed in the first judgment, the primary judge formed an adverse view of Ms Johnson’s credibility and reliability as a witness. [64] No ground of appeal impugned his Honour’s credit findings. An application of the present kind is not a vehicle for impugning adverse credit findings which were not the subject of the appeal.

10. [55]

    As to the first submission, the first judgment referred to the burden facing an appellant seeking to overturn findings of fact based in substantial part on the evaluation of her credit. [65] Notwithstanding those difficulties, upon rehearing Brereton JA would have concluded that it was not open on the evidence to be “comfortably satisfied” that Ms Johnson actually knew of the existence and contents of the proposal at least before early 2014, and that the primary judge erred in holding otherwise”. [66] However, the majority of the Court disagreed, being unpersuaded that that finding was not open to the primary judge. [67] That was plainly not a matter of misapprehension or oversight, but a considered conclusion having reviewed the evidence. This Court’s rejection of Ms Johnson’s challenges to the primary judge’s findings that she knew that Foster’s role could not be publicly revealed was substantially founded on her own evidence. [68] It is not apparent how any allowance for her mental health would affect those conclusions. Moreover, the submission that the primary judge failed to afford her any consideration in respect of her mental health is quite unfair: on 14 February 2018, after six hearing days, the primary judge on her application adjourned the proceedings part-heard to 14 March, because of her mental health, because “notwithstanding the unsatisfactory nature of this evidence, I concluded that it may impose undue hardship on Ms Johnson to compel her to resume her cross-examination this week”; [69] on 14 March, on her application, a further adjournment until 12 June was granted.

11. [56]

    As to the second submission, reference was in fact made in the first judgment to Ms Johnson’s position that “STC is in fact operated from Peter’s Gold Coast home where Peter holds all the [associate members’] contracts”. [70] However, the question was not whether she could not be expected to know if there was a person called Mark Hughes, but whether she knew that Foster was using an alias and why. In its essence, this complaint merely seeks to reagitate the appellant’s denials that she knew that Foster was using “Mark Hughes” as an alias, which were rejected, after careful consideration, both by the primary judge and on appeal.

12. [57]

    As to the third submission, this is in substance an attempt to reagitate the Court’s considered conclusion, upholding the primary judge’s finding, that by September 2013, Ms Johnson “strongly suspected” that investors’ funds were being misappropriated – in circumstances where her own correspondence reveals that she was “extremely concerned” that “STC may be being operated as a Ponzi scheme by Peter and hence is being illegally and fraudulently managed and operated”. [71]

13. [58]

    Similarly, as to the fourth submission, the primary judge’s relevant finding was that by September 2013, Ms Johnson “strongly suspected” that investors’ funds were being misappropriated, and as explained in the first judgment, [72] that conclusion was well-founded in evidence, including in particular an email sent by Ms Johnson to Ms Larter on 10 September 2013 which expressed her concerns that “fraud may be being committed by STC” and “that the moneys of [associate members] may both be in danger and being improperly used”.

14. [59]

    These submissions are in substance attempts to reargue the factual issues which were resolved adversely to Ms Johnson in the appeal. They do not identify any material oversight on the part of this Court of the kind that would attract relief under r 36.16.

15. [60]

    The appellant submitted that “The Court’s reliance on self-serving emails from Foster were tantamount to taking the untested evidence of a convicted fraudster”. [73]

16. [61]

    This repeats a submission that was made in the course of the appeal. The appellant has not identified what emails are said to have been erroneously relied upon, or in what respects. Generally, the significance of Foster’s emails was not as evidence of the truth of their contents, but for what matters they brought to Ms Johnson’s notice, and for providing context for Ms Johnson’s responses and acts. It is not apparent how it is said that this Court incorrectly relied on them. In any event, this is no more than a complaint about the weight which this Court might have attributed to particular evidence in reaching a considered conclusion. No such oversight or misapprehension as might justify reconsideration has been identified.

17. [62]

    The appellant submits that there was a “failure to note that the appellant was invited to the 30 May 2013 meeting with Mr de Klerk to deliver STC branded mugs as a sample of merchandise he might consider for South Africa”; [74] a “failure to note that on 14 March 2013 at Catalina Mr de Klerk only asked the appellant ‘3 or 5 questions’ based on a scrap of paper in his pocket … there being no basis for the appellant to have had any appreciation that her answers were being relied upon …”; [75] and a “failure to consider Mr de Klerk’s disavowal of reliance on the appellant in relation to his STC loan” [76] , referring to his evidence: [77]

18. [63]

    In submissions in reply, the first limb is elaborated as a contention that it was overlooked that this was indicative of the appellant not being an intended substantive participant in the meeting, and that the same was true of the Catalina meeting; [78] and the balance – expansively – to suggest that being oblivious to any reliance on the part of de Klerk, the appellant had no obligation to tell him anything.

19. [64]

    It is not entirely clear whether these are complaints of failures on the part of the primary judge or of this Court. If the latter, the Court did in fact refer to her evidence that she had been asked to bring the coffee mugs, [79] and considered and analysed the evidence of what transpired. [80] And, in the context of scrutinising Mr de Klerk’s evidence of the Catalina meeting, the first judgment referred to the circumstances that Mr de Klerk had with him only “a couple of notes”, [81] and that until re-examination, Mr de Klerk did not attribute any specific representation to Ms Johnson. [82]

20. [65]

    However, just why Ms Johnson attended the 30 May 2013 meeting, or the Catalina meeting, is tangential. The relevance of Ms Johnson’s participation in the 30 May meeting, was not why she was there, but the circumstance that while she was there she heard the voice of Foster on the computer, from which it was implicit that she must have known that he was using the alias “Mark Hughes”. [83] Her reason for being there is beside the point.

21. [66]

    Moreover, reliance by Mr de Klerk, who was not the plaintiff, was not relevant. De Klerk was not the representative plaintiff; reliance by him was not a necessary issue in the proceedings. The significance of the Catalina meeting was not to evidence any relevant misrepresentation by Ms Johnson or reliance by Mr de Klerk, but to establish her knowledge that Mr Foster was using “Mark Hughes” as an alias. [84] It was also relevant to establishing whether she had knowledge of the Proposal and its contents. [85]

22. [67]

    There was no such oversight such as to attract r 36.16; this Court did not overlook the matters referred to, to the extent that they were relevant.

23. [68]

    In purported reply, the appellant submitted that the trial judge erred in finding that the respondent’s claimed reliance on the proposal was reasonable. [86] The submission is not elaborated. Reliance was in issue on the appeal: it was raised by grounds of appeal 16, 27 and 28, which were dealt with in the first judgment and rejected. [87] This argument merely seeks to reagitate that issue and is not a basis for reconsideration of the judgment under UCPR r 36.16.

Issues relating to misrepresentation by silence

1. [69]

   A number of the appellant’s submissions pertained to her liability in respect of the Forster Representation on the basis that she engaged in misleading and deceptive conduct, essentially by not disclosing to the public (or that section of the public constituted by potential investors) the involvement of Mr Foster in STC, in the context that STC was being marketed to the public as a risk-free and reputable investment using her name, image, and reputation, and where Foster’s involvement would have undermined that impression. The first judgment refers to matters indicating that Foster’s role and involvement was not disclosed, and Ms Johnson’s active participation in concealing it. In the first judgment, these circumstances were summarised as follows:

2. [70]

   All of the submissions collected under this rubric suffer from the problem that fundamentally, they seek to reagitate the conclusion referred to above. They are arguments to the effect that that conclusion ought not have been reached. They do not identify any such irregularity, oversight or misapprehension as might warrant intervention under r 36.16. If it is complained that this Court’s conclusion was erroneous, the remedy is an appeal.

3. [71]

   That is sufficient to dispose of them, but we shall consider them a little further.

4. [72]

   First, the appellant submitted that Ms Johnson could not be liable for “misrepresentation by silence” because there is no duty to disclose to the world at large, or even an inchoate class such as “potential investors”, and the law requires an identified representee to whom a duty is owed by the representor by reason of the former being a known person for whom the significance of the disclosure is appreciated. [88] In elaborate submissions purportedly in reply, it was argued that this “Court’s adoption of the primary judge’s assumption that such a duty exists and must be discharged by disclosure to the relevant authorities” was tantamount to constructing a civil misprision, and that there was no such concept known to law. [89]

5. [73]

   No submission to this effect was made on the hearing of the appeal.

6. [74]

   No authority is cited for the proposition that the law requires an identified representee to whom a duty is owed by the representor by reason of the former being a known person for whom the significance of the disclosure is appreciated. Even if it were correct for the law of negligence, about which it is unnecessary to say anything because it was not relied on, the appellant’s liability was founded on the statutory prohibition on misleading and deceptive conduct, and fraud. There is no reason why the specific existence of the respondent as a potential investor had to be known to the appellant. As she must be taken to have authorised the distribution of the prospectus, she potentially incurred liability to anyone into whose hands the prospectus might come. Insofar as the appellant contends that it is illustrative that she had no means of communicating with the alleged representee, that is not so; Foster’s involvement could have been disclosed in the Proposal.

7. [75]

   Moreover, this Court’s upholding of Ms Johnson’s liability in respect of the non-disclosure of the involvement of Foster was not based on any obligation to report the matter to authorities. As summarised in the first judgment, in the context that an investment in STC was represented to be risk-free and reputable, the involvement of Foster was material to a decision to invest; there was a reasonable expectation on the part of members of the public invited to invest that the fact that Foster was involved would be disclosed; and the promotion of STC, via the Proposal or otherwise, without disclosing Foster’s involvement was conduct which was misleading and deceptive. [90] Ms Johnson engaged in misleading and deceptive conduct by not disclosing to that section of the public constituted by potential investors the involvement of Foster in STC, in the context that STC was being marketed to the public as a risk-free reputable investment using her name, image and reputation, where Foster’s involvement would have undermined that impression. [91] If that conclusion be erroneous, it was not as a result of inadvertence or oversight but followed a considered analysis of the law relating to misleading and deceptive conduct “by silence”, [92] and its application to the facts. [93] If it is contended to be erroneous, the proper remedy is an appeal. No basis for reconsideration under r 36.16 is apparent.

8. [76]

   The appellant submitted that her knowledge (as distinct from suspicion) was not such as to permit her to defame Larter and Foster until she had something approaching proof, which was not until 30 August 2013, when she informed de Klerk. In reply, the appellant also submitted that her honest and reasonable belief until 30 August 2013 was that Foster’s role was confined to establishing the technology platform and the web portal. It was also submitted in reply that in 2013 Foster was not as notorious as he was in 2018; that the appellant was not aware of the details of his record, notoriety and modus operandi; and that both the primary judge and this Court relied primarily on judgments of Yates J in 2014 and 2016, after the respondent invested, and that this was an unprincipled use of hindsight.

9. [77]

   These submissions overlook the conclusion of this Court that the primary judge’s finding that Ms Johnson knew that Foster’s involvement in STC could not be publicly revealed was not inferential only, but was firmly founded in Ms Johnson’s own evidence, which confirmed that she held the view that disclosure of his involvement would be destructive of the business; [94] the finding that Ms Johnson had engaged in active concealment of Foster’s involvement in STC; [95] and that, as Ms Johnson conceded was open to be found, she was aware that he was doing more than setting up a website. [96] And the submission that this Court relied chiefly on the judgments of Yates J is quite wrong. This Court’s conclusion that Ms Johnson knew that Foster’s involvement could not be revealed, [97] was founded chiefly on Ms Johnson’s own evidence. [98]

10. [78]

    The appellant submits that “if any legal obligation to disclose to ‘proper authorities’ or ‘bring to public attention’ existed (which is denied), it was discharged by procuring Mr Pieter De Klerk to disclose all material facts to both the NSW Police and to the 60 Minutes television programme in September 2013 – over a month before the respondent ‘invested’.” [99] In submissions in reply, it is elaborated that such action was more than sufficient to bring Foster’s involvement to public attention, that had Mr de Klerk’s interview gone to air the whole world would have immediately known about Foster, and that the appellant could not justly be found liable for this not occurring; and that de Klerk’s refusal to be interviewed on air, and the delay in the police taking any action, was sufficient to “break the causal link” between any investor’s loss and any act or omission on her part. [100]

11. [79]

    In fact, the appellant’s evidence was only that she told Mr de Klerk on 30 August 2013 that she had resigned and that Foster was involved in STC, [101] and that de Klerk used that “warning” to good effect by investigating who Peter Foster was and then following up on that. [102] To characterise that as procuring him to disclose all material facts to the police and 60 Minutes is an overstatement. There was no evidence that Ms Johnson “procured” these outcomes; a journalist rang Mr de Klerk, after he had spoken to Ms Johnson. In reply, the appellant submits that the court (presumably the trial judge) should have inferred that the only reason for a 60 Minutes reporter to ring Mr de Klerk out of the blue was because the appellant suggested that he do so. Absent evidence from Ms Johnson to that effect it is difficult to see why that inference ought to be drawn.

12. [80]

    In her affidavit the appellant said she “tried to anonymously tip off some people about my concerns. I was also concerned that I would be sued for defamation if I publicised unsubstantiated allegations of wrong-doing” and “I know from my experience as a criminal lawyer that it is not as easy as people think to get the police to act. This is not a criticism but an acknowledgment that the police had their methods, standards and protocols”, and that she endeavoured to “have him arrested” by providing “secretly, whatever information I could. I sent, or I caused to be sent, anonymous emails to the lawyers for ASIC and … Justice Logan's associate”, after he absconded. [103] She also gave evidence, in re-examination, that she had sent emails (of which she did not retain a copy) from an internet café in King Street, Newtown to the associates of Yates and Logan JJ, to a solicitor at Corrs who had acted for the ACCC in the two interlocutory matters in which she had acted for Foster, to the New South Wales Police’s media unit, and to A Current Affair. These things she did, she said, in 2014, not long before Mr Foster’s arrest on 28 October 2014. Information allegedly provided included the registration number of Mr Nolan’s wife’s car.

13. [81]

    The appellant did not submit in the course of the appeal that she was not liable for misleading and deceptive conduct because she had told Mr de Klerk on 30 August 2013 that she had resigned and that Foster was involved in STC. Although there were grounds of appeal to the effect that she had no obligation of disclosure, no ground of appeal contended that she had discharged any such duty. This is another impermissible attempt to agitate belatedly issues which were not argued on the appeal.

14. [82]

    But even had the issue been argued on appeal, it would not have affected the conclusion that Ms Johnson had engaged in misleading and deceptive conduct, which had an on-going effect. The relevant question is not whether the appellant discharged a duty of disclosure, but whether she engaged in misleading or deceptive conduct whereby Mr Mackinnon incurred damage. Informing Mr de Klerk that Foster was involved did not mean that the information would necessarily or even probably come to the knowledge of other investors or potential investors who had received the Proposal, including most relevantly Mr Mackinnon. It neither dissipated the misleading and deceptive effect of her conduct, nor fractured any causal chain. Even less could disclosures made in 2014 have dissipated the misleading and deceptive effect of her conduct in 2013, before Mr Mackinnon invested.

Issues relating to deceit

1. [83]

   The appellant also raised a number of issues pertaining to the decision of this Court to uphold her liability on the alternative basis of deceit.

2. [84]

   First, she submitted that the Court erroneously upheld the judgment below on a finding of deceit “which the appellant was given no opportunity to negate”, and that deceit requires an intention to deceive of a more overt kind than inadvertent misleading conduct. [104] In reply, the appellant further submits that deceit was not pleaded against her personally (and that had deceit been found the partnership was immediately dissolved pursuant to Partnership Act, s 34, so that the appellant would have no liability as a partner – an argument which has been addressed above). [105]

3. [85]

   The assertion that deceit was not pleaded against her personally is incorrect. In ACLS par 35, deceit was pleaded against the first defendant (the partnership). The amendments permitted by the primary judge included the insertion of the phrase “including inter alios the second, third and fifth defendants” after the reference to the first defendant in par 35. In allowing these amendments, his Honour said: [106]

4. [86]

   As explained in the first judgment, that meant that deceit was now pleaded against her personally. [107] No ground of appeal made this complaint, and no such argument was raised in the appellant’s written or oral submissions at the hearing of the appeal. Indeed Ground 19 of the Notice of Appeal, which was not the subject of any elaboration in argument, contended that the primary judge had erred in holding that silence may amount to misleading or deceptive conduct “because no claim was made against the appellant under the Australian Consumer Law and the only claims made by the respondent against the appellant were in respect of the representations or deceit.” As observed in the first judgment, [108] this makes clear that Ms Johnson understood that there was a claim in deceit against her personally. It is also apparent in the primary judge’s discussion with Mr Argy, set out above. [109] Moreover, in the course of the respondent’s opening, the primary judge observed:

5. [87]

   If the complaint that she had no opportunity to negate a finding of deceit is directed to the proceedings in this Court, it is incorrect. It was the subject of the respondent’s Notice of Contention, and of written and oral submissions in this Court. The primary judge made a finding of deceit, relevantly in respect of the representation that Foster was not involved in STC. There was evidence, summarised in the first judgment and referred to above, [111] that Ms Johnson took positive steps to conceal Foster’s role and involvement. However, his Honour being of the view that that finding did not advance Mr Mackinnon’s case in respect of relief, took the matter no further. Because of the potential impact of the defence of apportionment, this Court upheld the respondent’s Notice of Contention that the judgment should be upheld also on the alternative basis of deceit.

6. [88]

   Secondly, the proposition that an intention to deceive is a necessary element of deceit is incorrect; what is required is knowledge of, or recklessness as to, the falsity of the representation. [112]

7. [89]

   No irregularity, misapprehension or oversight such as might warrant relief under r 36.16 is apparent.

Issues relating to apportionment

1. [90]

   The appellant submits that apportionment should have regard to all twelve defendants, while the notional apportionment referred to in the first judgment, [113] accounts for only three. As the appellant was held liable on the basis of deceit, which is not apportionable, this would arise only if the upholding of the Notice of Contention were set aside. In any event, the evidence did not show that the other alleged wrong-doers (beyond Larter and Foster) had any material role. It is unlikely that they would have had more than a marginal impact on the contingent evaluation in the first judgment, but it is not necessary to resolve this.

Conclusion

1. [91]

   The appellant complains that she has been left “holding the metaphorical baby” for the actions of others, trapped in a situation not of her own making, in which her eleven co-defendants and other fraudsters not joined all participated in the fraud and benefitted, while she did not even know that a fraud was being perpetrated, let alone participating in or benefitting from it; yet she pays the greatest price, and that this result is a gross injustice. [114] In reply she says that she is as much the victim of Foster’s fraud as any investor. [115] A complaint that, from the perspective of the unsuccessful party, a judgment produces an unjust result, is not a reason to reconsider it under r 36.16, or in the inherent jurisdiction. Moreover, this argument rather overlooks the conclusions, substantially founded in Ms Johnson’s own evidence and in communications to which she was party, that she knew of Foster’s history, notoriety and modus operandi; knew that he was in practical control of STC; knew that he was using the alias “Mark Hughes” and that his involvement could not be publicly revealed; suspected that investors’ funds were being misappropriated; allowed her image and status to be used in marketing STC; and actively misrepresented to recipients of the Pike & Verekers’ letter that Foster was not involved in STC.

2. [92]

   As to the appellant’s chief complaint, that this Court has overlooked or misapprehended the effect of the pleading in ACLS par 20 and its own characterisation of it in J79, the first judgment makes clear that the Court appreciated that the pleading did not originally allege that Ms Johnson made the representations referred to in that par 20; [116] that the insertion of the phrase “including inter alios the second third and fifth defendants” clarified that that the pleadings were to be read as if references to “the first defendant” were to be read as referring to Ms Larter and Ms Johnson as members of STC; [117] (an amendment which was not challenged by the Notice of Appeal); that the amendments were significant, including because they clarified that it was alleged that Ms Johnson had engaged in misleading and deceptive conduct in respect of the representations pleaded in par 20, as well as those in par 21 which had always been pleaded against her, and that deceit was pleaded against her in par 35; [118] that Ms Johnson had always understood that the allegations in par 20 were or at least may be directed to her; [119] and that in any event, from the time the amendments were made, it was transparently clear that Ms Johnson was being sued personally in respect of misrepresentations allegedly made by STC when she was a partner. [120] Moreover, the appellant has never explained what opportunity she was deprived of, nor how she would have conducted her defence any differently, had the amendments not been permitted and interpreted in the manner in which they were.

3. [93]

   The appellant’s other repeated complaint, that the effect of Partnership Act, s 34, has been overlooked, itself overlooks that s 34 was never raised in the appeal, but in any event misconceives the effect of s 34.

4. [94]

   Otherwise, the motion amounts to an attempt to reargue the appeal, either on issues that were unsuccessfully raised on the hearing of the appeal, or on grounds and issues that were never raised. Insofar as the motion impugns the Court’s judgment on matters that were argued and were resolved by considered determination of the Court, the proper avenue for a complaint of error is on appeal to the High Court, not an application under UCPR r 36.16. Insofar as the motion seeks to agitate issues not raised by the Notice of Appeal or the submissions on appeal, UCPR r 36.16 is not a vehicle to permit an appeal to be reargued on different or additional grounds.

5. [95]

   The motion and the submissions in support of it do not identify any matter that was raised in the appeal that was overlooked, nor any other misconception, misapprehension, oversight or inadvertence such as might warrant reconsideration of the first judgment. The motion should be dismissed.

Indemnity costs

1. [96]

   Applications under r 36.16 which are no more than an attempt to reargue an unsuccessful appeal should not be made and applicants should not expect that in future this Court will address plainly unmeritorious applications such as the present in the detail that is contained in this judgment. The lack of merit in the appellant’s application warrants the appellant being ordered to pay the respondent’s costs of the motion on an indemnity basis.