Spain v National Australia Bank [2004] FCA 87 (5 February 2004)

Federal Court of Australia Act 1976 (Cth) s 19

ERIC RAYMOND SPAIN v NATIONAL AUSTRALIA BANK and FERRIER HODGSON CHARTERED ACCOUNTANTS
Q171 of 2003

KIEFEL J
BRISBANE
5 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	Q171 OF 2003

BETWEEN:	ERIC RAYMOND SPAIN APPLICANT
AND:	NATIONAL AUSTRALIA BANK FIRST RESPONDENT FERRIER HODGSON CHARTERED ACCOUNTANTS SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE OF ORDER:	5 FEBRUARY 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondents’ costs of the proceedings including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	Q171 OF 2003

BETWEEN:	ERIC RAYMOND SPAIN APPLICANT
AND:	NATIONAL AUSTRALIA BANK FIRST RESPONDENT FERRIER HODGSON CHARTERED ACCOUNTANTS SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	5 FEBRUARY 2004
PLACE:	BRISBANE

1 The respondents seek orders that the application be set aside or the applicant’s claims be dismissed on the grounds that no reasonable cause of action is disclosed and the proceedings are frivolous, vexatious, and an abuse of the process of the Court, or that his pleading be struck out on similar grounds.

2 The applicant is self-represented in these proceedings and has drawn the Court documents himself. The nature of the subject of the application is said in the application document to be:

3 The response in the form to the inquiry as to the legislative basis of the Court’s jurisdiction with respect to the matter is said to be a connexion between the respondents via the Banking Act 1959 (Cth) and the Corporations legislation. The substantive relief the applicant seeks is ‘proper compensation to recoup missed opportunities’. Details of the claim are given as follows:

4 No jurisdiction is apparent with respect to those in 3, 4, 5 and 6. The balance appear to relate to the applicant’s claims against the respondent which, it would appear, arise out of a Deed of Settlement.

5 No jurisdiction is apparent with respect to the orders sought in paragraphs 3, 4, 5 and 6 of the application. The balance appear to relate to the applicant’s claims against the respondent which are said to arise out of a deed of settlement. No federal statute is however pointed to, which would provide this Court with jurisdiction to order damages or compensation for breach of such a deed. The claim is one appropriate to the general law. Nevertheless, it is necessary to see if the statement of claim reveals anything further.

6 The statement of claim identifies and annexes a deed of settlement which was entered into between the applicant, the first respondent, and another company. It was dated 6 December 2002, but the applicant says that it was signed by him on 17 December 2002. A dispute had apparently arisen between the bank, the applicant and the other company. The bank agreed to pay the applicant some monies and he released the bank from all claims involving a number of companies with which he was associated.

7 As a pleading, the document is largely incomprehensible. It is not possible to discern from it a cause of action or any explanation as to how the substantial losses claimed are said to arise. Moreover, it contains many unsubstantiated allegations of serious misconduct on the part of the respondents. For these reasons, the pleading is liable to be struck out.

8 The question which then arises is whether the applicant has a case which he has not yet properly explained, but which he might be able to plead and plead in such a way to overcome the lack of jurisdiction in this Court to which I have referred.

9 It can be discerned from the statement of claim that the applicant’s contention is that there has been a breach of the deed of settlement, and that he complains of two letters sent by a partner of the second respondent to him. They were the letters dated 2 December 2002. Further inquiries of the applicant during the hearing revealed that he considers the letters sent by the partner of the second respondent to constitute a breach by the first respondent of the deed, and that as a result of that breach, the deed no longer binds him to the extent that he can now make claims for damages with respect to the companies the subject of release under the deed.

10 The applicant was involved in a number of companies prior to the deed of settlement. One of them was Jack Corporation Pty Ltd (‘Jack Corporation’). The applicant was a director of it. The two letters in question, which appear to have sparked this litigation, were sent by the partner of the second respondent in his capacity as the liquidator of that company. In them he alleged that the applicant had allowed the company to trade whilst it was insolvent. Demands for substantial monies were also made of him. One of the applicant’s grievances is that had he known of these letters he would not have signed the deed of settlement on 16 December 2002. Another is that the first respondent failed to defend him in circumstances when it knew he had acted properly, as its entry into the deed of settlement shows.

11 Although the letters were dated 2 December 2002, he says that he did not receive them until after he had signed the deed. I infer that he considers that the respondents have in some way acted in concert in connexion with his signing the deed. The second respondent was not, however, a party to the deed and I was unable to follow just how it was that the second respondent was said to have an interest in his signing the deed and the extent of its association with the first respondent.

12 At one level, the case sought to be brought is said by the applicant to be for a breach of the deed of settlement. There are obvious difficulties, to say the least, in making out a breach by the first respondent by reference to the liquidator’s actions. The applicant relies upon some statutory linkage, but it is not apparent to me. In any event there is no apparent connexion between a breach constituted by the sending of the letters and the damage to Jack Corporation, which is said to be the foundation for the claims for loss, damage and compensation, and that is so even if the applicant could sue for the losses of that company.

13 The applicant, at some points in discussions, suggested another case. He considered the deed was no longer binding upon him, as I have already observed. It is possible to discern that he believes that the actions of the respondents were relevant to his entry into the deed in the sense that they did not tell him that they intended to send the letters and to make the accusations. It may be inferred that he is saying that he would not have entered into the deed and that he might claim to be released from it. It is not however possible to discern his case in any detail – how he says the respondents are to be taken as acting together for this purpose; whether he was in a position to exercise a choice concerning the deed; what would follow if he were released from the deed; and what, if any, damages he or the companies involved could claim. In that latter respect, I note that the one company discussed in that connexion, Jack Corporation, would appear to have been in liquidation at the time the deed was signed. The steps which the applicant had allowed to be taken towards its liquidation would not appear to be connected to the later letters.

14 In any event, from this Court’s point of view, any such claim in connexion with the deed of settlement would appear to arise under the general law. The lack of explanation of the applicant’s case against the respondents does not make it possible to see any connexion between it and a federal statute (see s 19 of the Federal Court of Australia Act 1976 (Cth)).

15 In these circumstances, there would not seem to me to be any point in allowing the applicant to attempt another pleading in this Court. The application will be dismissed. I will order that the applicant pay the respondents’ costs of the proceedings including reserved costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

For the Applicant:	In Person

Counsel for the First Respondent:	Mr I Perkins

Solicitor for the First Respondent:	Malleson Stephen Jacques

Counsel for the Second Respondent:	Mr TP Sullivan

Solicitor for the Second Respondent:	Deacons

Date of Hearing:	5 February 2004

Date of Judgment:	5 February 2004