Fletcher v Cps Credit Union Co-Operative (ACT) Ltd & Ors [2006] ACTSC 18 (28 March 2006)

Last Updated: 6 April 2006

GRAHAM WALTER FLETCHER v CPS CREDIT UNION CO-OPERATIVE (ACT) LIMITED & ORS

[2006] ACTSC 18 (28 March 2006)

APPEAL - application for leave to appeal five decisions of the Small Claims Court - dismissal under section 442 of Magistrates Court (Civil Jurisdiction) Rules 2004 - no cause of action particularised - frivolous or vexatious proceedings.

Magistrates Court Act 1930, s275

Magistrates Court (Civil Jurisdiction) Rules 2004, s442

Health Records (Privacy and Access) Act 1997, s15, s16

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

No SCA 76 of 2005

No SCA 81 of 2005

No SCA 82 of 2005

No SCA 83 of 2005

No SCA 84 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 28 March 2006

IN THE SUPREME COURT OF THE ) No SCA 76 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: CPS CREDIT UNION CO-OPERATIVE (ACT) LIMITED

ABN 31 087 649 670

Respondent

IN THE SUPREME COURT OF THE ) No SCA 81 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: TELSTRA CORPORATION LIMITED ABN 33 051 775 556

Respondent

IN THE SUPREME COURT OF THE ) No SCA 82 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

ABN 11 005 357 522

Respondent

IN THE SUPREME COURT OF THE ) No SCA 83 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: ST GEORGE BANK LIMITED

Respondent

IN THE SUPREME COURT OF THE ) No SCA 84 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE SMALL CLAIMS DIVISION OF THE MAGISTRATES COURT

BETWEEN: GRAHAM WALTER FLETCHER

Appellant

AND: TONY LEE PTY LIMITED

ACN 008 586 703

Respondent

ORDER

Judge: Higgins CJ

Date: 28 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. In SCA 76 of 2005 leave to appeal is refused.

2. In SCA 81 of 2005 leave to appeal is refused.

3. In SCA 82 of 2005 leave to appeal is refused.

4. In SCA 83 of 2005 leave to appeal is refused.

5. In SCA 84 of 2005 leave to appeal is refused.

1. This is a decision upon five appeals from the Small Claims Division of the ACT Magistrates Court. Each appeal is subject to leave being granted so to proceed.

2. Section 275 of the Magistrates Court Act 1930 provides -

(1) A party to a proceeding in the Small Claims Court may, with the Supreme Court's leave, appeal from a judgment of the Small Claims Court in the proceeding.

(2) The Supreme Court may grant leave only if satisfied--

(a) that the decision of the Small Claims Court on a question of law was wrong; or

(b) that the conduct of the proceeding in the Small Claims Court was unfair to the applicant for leave to appeal.

Fletcher v CPS Credit Union (CS 2005/51343)

3. Pursuant to an originating application filed 17 May 2005 the applicant claimed damages for breach of contract against the respondent (CPS). He recited in the application that on 18 December 2003, CPS had entered a "payment default" entry on his file. This entry he disputed. It "interfered with another transaction". On 1 April 2004 CPS added an entry which stated "the payment had been made in full". That was also false, the applicant alleged, as no payment had been required of or made by him. The applicant sought removal of those entries.

4. CPS filed a "Response". It alleged that a default had occurred on 2 October 2003 on a Credit Contract between the parties. A notice of default was issued on 22 October 2003.

5. On 8 December 2003, there having been no response from the applicant, CPS registered the default with the Credit Reference Association of Australia Limited (CRAA). CPS had given notice of its intention to do so on 22 October 2003.

6. Effectively, that response denied any breach. It was also noted that the applicant had not particularised any damage suffered, even if some cause of action could otherwise be made out.

7. On 27 June 2005, CPS gave notice it would apply to strike the proceeding out as "frivolous, vexatious; or ... an abuse of ... process".

8. That application was set down for 19 September 2005.

9. On 9 September 2005 there was an affidavit of Mr Vernon Lee filed in support of that application. It verified the facts asserted in the Response adding that, on 1 April 2004, the debt was paid in full. CRAA was notified accordingly.

10. On 13 September 2005 CPS filed an application to dismiss the claim, as it had foreshadowed.

11. On 19 September 2005, Magistrate Lalor directed that the applicant have until 30 September 2005 to properly particularise his cause of action.

12. This the applicant attempted to do. He filed a document in the following terms -

Additional to existing prior documents / details causes of action / particulars of claim:

1. Breach of contracts I had with that group before and, misuse of and conspiracy to assert I had not severed all activities with that group, property of consumer and finance laws, mostly lodging two entries on my credit file that are still ... false at work, and smears my record to an extent been refused credit since.

2. Even when I was trying to resolve issues going on while I was using that CPS Group, and being stalked and harassed in some CPS' branches and outside by .... younger ... as well, and some branch staff also.

3. No attempts by "CPS" to adopt any minimum acceptable best practice current standards, to administer my accounts and branch use or resolve any complaint matter. Both during and particularly after I dumped them.

DAMAGES

1. $10,000 is a very conservative claim for damages for gross misconduct of staff customers, both in branches and outside, and loss of my ability to raise credit.

2. CPS will/shall withdraw all references and entries CPS placed on my credit file, unconditionally, as part of the orders I want in this claim also.

13. On 7 October 2005, Magistrate Lalor ruled that no cause of action had been particularised. The applicant produced no contract of which the entries complained of were in breach. Nor was there any fact pleaded which would constitute damage of a pecuniary nature.

14. In any event, as a matter of substance, the applicant did not deny there had been a loan agreement with CPS. His assertion that he ceased dealings with CPS is not inconsistent with default in payments expected by CPS. It is not conceivable that some anonymous benefactor would then pay the total debt without the applicant's knowledge.

15. Not only do I concur with his Honour's ruling but the matter is so apparently lacking in merit as to warrant a description of it as "frivolous or vexatious" within the meaning of rule 442(1).

16. Leave to appeal is refused.

Fletcher v Telstra Corporation Ltd (CS 2005/51315)

17. This originating application was filed on 13 May 2005. The applicant claimed against Telstra damages for breach of contract.

18. In the "grounds" the applicant alleged (so far as I can decipher it) -

Breach of Contract on mobile, then Breach of Contract against on line.

The matter of a mobile phone I had contracted with Telstra for 24 months on 22/11/01, on Plan 20 at the Telstra Shop Fyshwick A.C.T. was breached by Telstra a year before this 24 months expired when the Telstra Shop at Tuggeranong A.C.T. failed to repair a technical fault, in that same phone (never gave a reason) nor did they return or replace that faulty phone. Mobile phone was a Hyundai HGC300E CDMA. I spent almost all time from 11/02 to 10/03, trying to get a response from Telstra and arbitrate that dispute totally, without success. Around 10/03 a credit of $150 approx - just appeared on my line bill phone, and Telstra started deducting the credit (sic) from my `total' payment due. As I had no idea of what credit I was receiving, and coverage of that credit, I added the credited amount back on the total, and payed [sic] that. In fact never accepting this $150 CR, Telstra had added to my bill so, 10/03 to 14-3-05, I kept that up, while asking and writing to Telstra, through 2004/05, what the "CR" was to cover/for. No response! I then considered the claim of $500 [?] I was prepared to accept from Telstra to settle the breach of contract, Telstra caused in/from 2002/03/04 on the mobile. The only address I had to send letters to, was their billing address, Box 9901, Melbourne Vic 3001. On 14-3-05 Telstra disconnected my line phone, because they claimed, I was "owing" them money. In fact they (Telstra) owed me a `lot' (money). No response to this issue to date, and technically - another breach of contract by Telstra on 14/03/05 and continuing to date. Since 14/03/05 I have incurred considerable extra costs to try and keep basic needed contact by phone (temporary) one, available only. Pathetic!!

19. On or about 30 June 2005, solicitors for Telstra filed a response.

20. The response admitted a mobile phone contract as alleged, dated 2 December 2001. It further admitted that, on the same day, it supplied the mobile phone referred to. It denied any breach of contract and complained of lack of particulars justifying the claim for damages.

21. On 12 July 2005, the solicitors wrote to the applicant seeking particulars of the breaches alleged and of the quantum of any alleged indebtedness.

22. On 19 September 2005, the applicant filed a response. It read -

1/ Breach of Contract x 2 - Particulars of Claim.

The mobile I had on contract with Telstra was not repaired when it developed a technical fault approx 1 yr into that contract (at Tuggeranong Telstra Shop) nor replaced.

2/ Apparent undefined $150 odd credit put onto my line phone bill.

3/ My line phone bills have never been in any way not fully paid or in any other breach by me, but for malicious purposes, my line services were disconnected on March 2005, and are still that way. Stress and denial of these effects on me from Telstra.

4/ No attempt by Telstra in either matter of phone services to adopt any minimum acceptable best practice current standards, to resolve any issue or take any notice of my needs.

DAMAGES

1/ $10,000 is a very conservative claim for damages for denial of mobile services and phone services, by conspiracy within Telstra's disparate retail divisions.

2/ Serious problems imposed on me while still without basic line services. I can't make medical appointments etc as I have no line phone use other than "000" which is useless for day to day needs of mine.

23. On 7 October 2005, Magistrate Lalor considered this claim and the application of Telstra to dismiss it pursuant to rule 442 (Magistrates Court (Civil Jurisdiction) Rules).

24. Helpfully, the applicant read his handwritten document.

25. It is clear that his Honour correctly understood the applicant's claim, basically failure to repair or replace a faulty mobile phone, unwarranted disconnection of phone services. There was also a complaint of an unexplained credit and failure to negotiate. The latter two are not justiciable claims.

26. Mr Richards, for Telstra, responded that no facts had been asserted to confer upon Telstra a duty to repair the mobile phone in question. Nor was there any relevant contract by reason of which the applicant could not lawfully disconnect the line phone service.

27. His Honour could not, after hearing the applicant, discern from the applicant's particulars, any recognisable or supportable cause of action.

28. It is true the relevant contracts were conceded but, in addition, breach had to be alleged. No terms were identified as having been breached nor were there any particulars of loss and damage. The latter might not have been fatal had the failure to repair and the disconnections been clearly alleged as wrongful, not by mere assertion, but by reference to terms of the relevant contracts.

29. That was not done and I agree with his Honour that the claim had to be dismissed under Rule 422.

30. Leave to appeal is refused.

Fletcher v Australian and New Zealand Banking Group Limited (ANZ)

31. This matter was commenced by originating application on 26 May 2005. The applicant claims breach of contract by ANZ. The grounds were stated to be -

The ANZ Bank (at which I had an account) - some time late 2004, early 2005 seemed to start, on their own volition, or on instructions (not from me) to close that account. No notice was received by me and a cheque made out to me which was a bank cheque (sic) arrived at my address. Irrational behaviour by ANZ staff at a local branch, closed this same account, while it was a bank card. They were asked to deal with not the account. The bank took the obstructive approach through their internal "arbitration" system. I continually asked for copies of my personal records and relevant others, never bothered to reply to me - and of course, never sent any records, for me to review.

As this cheque (sic) seemed to be for balances still held in my accounts but no records from those accounts were sent with or later. I returned that bank cheque (sic) to the Melbourne office with a request and demand letter enclosed for senior bank staffs attention. "Melbourne" office returned the cheque (same one) with irrational written reply and asserted I open an account elsewhere (another bank) and deposit that cheque there, totally uninformed was I of both "closure balances" reasons of serious type regarding the closure (sic) of my accounts to justify that action, I sent another letter back to ANZ Melbourne Head Office but had to return that same cheque by separate post. Nothing heard since.

Damages of $10,000 were claimed.

32. The response of ANZ was filed on 30 June 2005. It pointed out that the ANZ had the right under the terms and conditions as disclosed to the applicant to close any account at any time and clear the balance by forwarding a bank cheque to the account holder as it did on 14 January 2005. Whilst the condition allowed such action "for any other reason it considers appropriate", the response asserted that the applicant had entered various branches and behaved in a manner considered unsatisfactory. It had forwarded a cheque for $4,894.36.

33. ANZ applied to strike the proceedings out. There was in support, two affidavits particularising, on oath, details of the applicant's bizarre behaviour at ANZ branches including offensive and insulting behaviour.

34. There was, also, a request for particulars and a re-tendering of the bank cheque for the sum due from ANZ to the applicant.

35. On 19 September 2005 Magistrate Lalor directed the applicant to provide particulars by 30 September 2005. In purported compliance with that direction, the applicant filed a document, inappropriately headed "Without Prejudice" stating those particulars to be -

1/ Breach of Contract, closing an account I had with this Bank, after I had tried to get the Bank's "consumer advocate" to deal with HSBC transfers, to my nominated HSBC account with ANZ, but those deposits were not properly identified as to sources. ANZ was also a part of the banking omb involvement at the time.

2/ Complete silence by the ANZ Banks "Consumer Advocate" indicated to me some knowledge by the ANZ Bank of improper activities on my account mostly from apparently HSBC.

3/ No attempt by ANZ Bank either within or when the Banking Ombudsman (sic) was involved to adopt any minimum acceptable best practice current standards, only attempts to smear my ... and use of bank services, where professional misconduct by bank staff and their "Chubb Security" and some customers' (sic) was ... to try and make it look as my responsibility and initiative.

DAMAGES

$10,000 is a very conservative claim for damages in total due to ANZ Bank's initiated mismanagement and abuse of process, causing me to do denied proper use of my accounts when they closed them improperly.

36. On 7 October 2005, having heard both parties, Magistrate Lalor was unable to discern any coherent cause of action.

37. I agree. The closure of the accounts was undeniably a course the ANZ was legally entitled to take. It did so. It is not suggested the tender of the bank cheque was otherwise than a proper attempt by ANZ to pay out its debt to the applicant. That he foolishly declined to accept the cheque is his own concern. It does not sound in damages.

38. In any event, it is apparent that ANZ could have established very substantive grounds, if needed, to sever relations with the applicant. If the ANZ should have been more tolerant of the applicant's bizarre and offensive behaviour, as it's employees perceived it to be, that may be a matter for customer relations. It does not confer any cause of action known to law.

39. The application for leave to appeal is dismissed.

Fletcher v St George Bank Ltd (St George) (CS 52189/2005)

40. Again, this application, dated 5 August 2005, alleged breach of contract. The ground asserted -

My account with the subject respondent bank, has been intentionally miss-handled [sic] involving false documents, from bank source refusal to address breaches of terms and conditions applying and refusing to provide information and/or processing requests from me for services offered to bank customer.

Account details and specific sources/branches withheld for privacy reasons for now.

Period in which a variety of the subject misconduct and/or malpractice has been occurring over is December (1) - 2004, to present date August (5) 2005 (inclusive) (in practice - but earlier in information then production).

Attempts to incite missuse [sic] by me of my (sic) accounts through fraudulent means, from the respondent's bank.

Failing and/or refusing to take instructions from customer and implement them.

Refusing to correct intentional missconduct [sic] and practices, of some branches (staff) and banks, so called, dispute handling services and all relevant matters.

41. There was no response filed by St George. On 23 August 2005 a Deputy Registrar notified the applicant that the matter would be listed for directions on 19 September 2005 before a Magistrate. On 19 September 2005, the applicant applied for default judgment.

42. Magistrate Lalor, on that day, directed the applicant to particularise the claim so as to show a cause of action.

43. On 7 October 2005, no particulars being given, Magistrate Lalor dismissed the application pursuant to Rule 442.

44. In my view, his Honour's decision was entirely correct. The claim is a mish mash of scandalous assertions with no facts pleaded to support them and unspecified complaints of unsatisfactory service neither factually supported nor even rationally specified. There is clearly no cause of action revealed in any form.

45. The application for leave to appeal is dismissed.

Fletcher v Tony Lee Pty Ltd (CS 51658/2005)

46. An originating application was filed on 17 June 2005. It alleged breach of contract. The asserted grounds were -

Breach of Contract etc., mostly concerning my patient records, and the respondent's actions. While this doctor - Tony T. Lee - provider No 235602X, was also practicing as a doctor in the ACT, at the Deakin Professional Centre Suite 2, 46 Geils Court, Deakin ACT 2600, up to approx December 1998, when he closed his practice there, and moved to Sydney - taking all my patient records with him. A former GP of mine (ACT), who had some of my records from T Lee (none of which I had seen or copied) sent copies to a Govt. compensation providor [sic], including some other records of mine, totally on the own volition, of this GP. He (GP) received payment in return from this comp. providor [sic], when by accident I discovered this serious breach of privacy, concerning my medical records held by that GP. At that time I sought copies of all my file, but particularly the records sent by that GP, without my knowledge or consent. During this time Dr Lee sent copies of the released records to this GP, even though the GP had all the originals any way. My attempts to get copies of my file from the GP, and later, indirectly, - Dr T Lee in Sydney were and still are being obstructed and refused via - a mostly collusive arrangement between the GP T Lee and a legal investigator (sic) in the health record etc., regulatory local office. I therefore now claim compensation/damages from the subject respondent of this claim, as he is still refusing and is the central obstructor, concerning my medical records, he still holds.

47. Based on this, the applicant applied for default judgment. That application was referred to Magistrate Lalor for directions on 19 September 2005. On 20 September 2005, the respondent applied to strike out the proceedings pursuant to Rule 442 and for costs pursuant to S 456 of the Act.

48. An affidavit of the same date recited that the applicant had requested access to the respondent's records concerning him in 2001. It was refused pursuant to ss 15 and 16 of the Health Records (Privacy and Access) Act 1997. He complained of that decision to the Health and Community Services Complaints Commissioner who agreed that such access might harm the applicant's psychiatric health. That refusal of access is the essence of the applicant's claim.

49. It is abundantly clear that the applicant has no legal ground to complain of information being lawfully withheld from him in his own interests. Nor is there any reason to suppose that there is anything unlawful about disclosure of relevant information to Comcare or any other workers compensation provider in the course of consideration of any claim the applicant might have had.

50. The applicant's submission, self-evidently misconceived, was filed 29 September 2005. It was in the following terms -

1/ Breach of contract with mostly concerning my medical records he holds now in Sydney and his failure to comply with requirements to leave in the ACT for my use all of my medical records, where he has a lot of record/records he won't give to me, as he is required to do.

2/ Refuses to deal with me at all.

3/ ... up to a fellow supporter supposedly a "Complaints Commissioner" in the ACT. Also to his mates, only in the past - (some doctors).

4/ Total failure to take and/or adopt any minimum acceptable best practice current standards of practice during and since he left the ACT Practice. A view that he will only deal with other doctors I will never consent to nor am I required to, as if the patient is some lower form of life and cant understand such reports particularly when their contents are so irrational.

DAMAGES

1/ $10,000 is a very conservative claim for damages, stress, [?], ideological goals, and his business record differences in names or, concern me greatly that he has any copies of my records at all.

51. On 7 October 2005, Magistrate Lalor dismissed the claim pursuant to Rule 442.

52. It is clear from the claim that the applicant did not understand that Dr Lee's records were the property of the doctor not the patient. All the patient has is a contractual right to confidentiality which does not prevent courts, commissions or even insurers, in appropriate cases, ordering or having possession of the records. A patient has a statutory right of access to such records, that is, to view or be provided with information as to the contents thereof but not to possession of them.

53. Further, pursuant to s 15 of the Health Records (Privacy & Access) Act 1997 -

A record keeper shall not give access to a health record or part of a health record under section 10 if the record keeper believes, on reasonable grounds, that the provision of information in the record or part of the record would constitute a significant risk to the life or the physical, mental or emotional health of -

(a) the consumer; or

(b) any other person.

54. Dr Lee's decision was reviewed and upheld by a competent authority. There is no reason to doubt the correctness of either of those decisions. In any event, none of the applicant's complaints about Dr Lee even arguably constitute some breach of law justifying a claim for damages.

55. The learned Magistrate was correct to strike out this claim.

56. Leave to appeal is refused.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 28 March 2006

Counsel for the appellant: Self-represented

Solicitor for the appellant: Self-represented

Counsel for CPS Credit Union

Co-operative (ACT) Limited

(SCA 76/05); Australia and New

Zealand Banking Group Limited

(SCA 82/05; Telstra Corporation

Limited SCA 81/05: Mr W L Sharwood

Solicitor for CPS Credit Union

Co-operative (ACT) Limited

(SCA 76/05); Australia and New

Zealand Banking Group Limited

(SCA 82/05; Telstra Corporation

Limited SCA 81/05: Deacons

Counsel for St. George Bank Limited

(SCA 83/05): Mr J Harris SC

Solicitor for St. George Bank Limited

(SCA 83/05): Michael H.S. Bowan by his Canberra

agent Dibbs Abbott Stillman

Counsel for Tony Lee Pty Limited

(SCA 84/2005): Ms C Power

Solicitor for Tony Lee Pty Limited

(SCA 84/2005): Sparke Helmore

Date of hearing 2 December 2005

Date of judgment 28 March 2006