Freeman v National Australia Bank Ltd [2006] FCAFC 67 (19 May 2006)

Last Updated: 19 May 2006

FEDERAL COURT OF AUSTRALIA

Freeman v National Australia Bank Ltd [2006] FCAFC 67

National Australia Bank Ltd v Freeman [2005] FCA 1895 cited
Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 applied
Attorney-General v Wentworth (1988) 14 NSWLR 481 cited
Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810 cited
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 cited
Commonwealth Bank of Australia v Heinrich [2003] FCA 540 cited
Horvath v Commonwealth Bank of Australia [1999] FCA 504 cited
Granich & Associates v Yap [2004] FCA 1567 cited
Rajski v Powell (1987) 11 NSWLR 522 considered
Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 cited


















LYNTON NOEL CHARLES FREEMAN (A BANKRUPT) v NATIONAL AUSTRALIA BANK LIMITED and MATTHEW LESLIE JOINER and PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN

QUD 3 OF 2006

SUNDBERG, KENNY AND GYLES JJ
19 MAY 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LYNTON NOEL CHARLES FREEMAN (A BANKRUPT) APPELLANT
AND:	NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) FIRST RESPONDENT MATTHEW LESLIE JOINER and PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN SECOND RESPONDENT

JUDGES:	SUNDBERG, KENNY AND GYLES JJ
DATE OF ORDER:	19 MAY 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondents’ costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LYNTON NOEL CHARLES FREEMAN (A BANKRUPT) APPELLANT
AND:	NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) FIRST RESPONDENT MATTHEW LESLIE JOINER and PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN SECOND RESPONDENT

JUDGES:	SUNDBERG, KENNY AND GYLES JJ
DATE:	19 MAY 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

SUNDBERG AND KENNY JJ

THE ORDERS APPEALED FROM

1 On the application of the respondents under Order 21 rule 2 of the Federal Court Rules Spender J made the following orders, amongst others, affecting the appellant, from which he now appeals:

"1. Mr Freeman shall not, without the leave of the Court, commence in this Court any proceeding against the National Australia Bank Ltd (‘the Bank’) or against Matthew Leslie Joiner and Philip Gregory Jefferson, the respondent’s Trustees in Bankruptcy (‘the Trustees’), or against both the Bank and the Trustees, or any of their servants, officers, agents or employees, other than an appeal against this order.
2. Any proceeding initiated by Mr Freeman in the Federal Court of Australia against the Bank or the Trustees prior to the making of this order shall not be continued by Mr Freeman without the leave of the Court, other than an appeal against these orders."

See National Australia Bank Ltd v Freeman [2005] FCA 1895. Spender J features in earlier stages of the appellant’s curial history. In order to avoid confusion we will refer to his Honour as "the primary judge" in relation to his involvement in the judgment under appeal, and as Spender J in other contexts.

BACKGROUND

2 The following account of the events upon which the respondents based their application, and which founded the primary judge’s orders, is taken from his Honour’s reasons. The appellant disputed the completeness of the primary judge’s recital of some of the background facts. However, as will appear, the essential facts are not in dispute.

3 In December 1997 a mediation took place between the appellant and the first respondent (the Bank), at which the appellant was represented by counsel and solicitors. As a result of the mediation the parties executed an agreement (the mediation agreement). The mediation agreement led to the establishment by the Bank of a bill facility of $1,020,000 in favour of the appellant which was due for repayment on 6 April 1998. By the mediation agreement the appellant agreed to use his best endeavours to refinance the Bank’s debt or to sell the property "Glassford Vale", which was mortgaged to the Bank, by 4 March 1998. Settlement of any sale or refinancing was to be effected by 6 April 1998. The mediation agreement contained a provision by which the appellant released the Bank from claims which he had or might have had against the Bank in respect of a wide range of matters.

4 The appellant was unable to refinance the Bank’s debt or sell Glassford Vale. On 14 May 1998 the Bank commenced proceedings (No 4013 of 1998) in the Queensland Supreme Court for possession of Glassford Vale, and for moneys owing under the expired bill facility. The appellant was represented by counsel at the hearing before Ambrose J. On 11 October 2000 his Honour gave judgment for the Bank for possession of Glassford Vale, and for $1,427,890.08, and awarded indemnity costs against the appellant. He rejected the appellant’s claim that he was mentally incompetent when the mediation agreement was entered into, found that the release was effective to protect the Bank from all the claims made by the appellant in his counter claim in the proceeding, and held that in any event the appellant had no real prospect of establishing those claims.

5 The appellant unsuccessfully appealed to the Court of Appeal (No 9718 of 2000). White J, with whom Davies and Thomas JJA agreed, said there was no substance in any of the grounds of appeal raised in the appellant’s extensive written and oral submissions: National Australia Bank v Freeman [2001] QCA 473.

6 The High Court refused the appellant special leave to appeal from the Court of Appeal’s decision on the ground that no arguable error had been shown by the courts below. The appellant was represented by counsel on the leave application.

7 On 11 March 2002 the appellant commenced proceedings against the Bank in the Supreme Court of Queensland (No 2339 of 2002) for damages arising out of the sale of Glassford Vale at an alleged undervalue. The property had been sold by Receivers appointed by the Bank in July 2001, and one of the issues in the proceeding was whether the Bank was responsible for any default on the part of the Receivers who were deemed by the mortgage documents to be the agents of the Bank.

8 On 18 January 2001 the Bank filed a Creditor’s Petition in the Federal Court against the appellant based on his failure to comply with a warrant of execution issued by the Supreme Court of Queensland. In dismissing a notice of motion filed in the proceeding by the appellant, Spender J said the appellant was seeking to relitigate whether he owed a debt to the Bank. On 12 March 2002 Spender J made a sequestration order in relation to the appellant’s estate. His Honour held that a prima facie case of fraud, collusion or miscarriage of justice, such as to impeach the judgment of Ambrose J, had not been made out. He found that any claim by the appellant asserting a sale of Glassford Vale at an undervalue was a claim against the Receivers, and not against the Bank.

9 On 7 May 2002 Muir J dismissed an application by the Bank for summary judgment in proceeding No 2339 of 2002, on the basis that there was a triable issue as to whether the Bank had intermeddled in the Receivers’ sale so as to render it liable for any default on their part.

10 On 26 August 2003 a Full Court of this Court dismissed the appellant’s appeal from the making of the sequestration order.

11 On 27 August 2003 the appellant commenced further proceedings in the Queensland Supreme Court under rule 668 of the Uniform Civil Procedure Rules 1999 seeking orders setting aside the judgment of Ambrose J referred to at [4] on the basis of fresh evidence. (Rule 668 codifies the circumstances in which a person may seek a stay of an order against him or her on the basis of facts arising after the making of the order, or facts discovered after the order which, if discovered in time, would have entitled the person to a different order.) de Jersey CJ dismissed the application on the ground that the appellant did not have standing to pursue it because of his bankruptcy.

12 On 14 October 2003 the second respondent (the Trustees) elected not to adopt the appellant’s proceedings against the Bank. On 31 October 2003 the appellant filed a notice of motion seeking to compel the Trustees to commence actions against the Bank. Spender J declined to make any orders on the motion. His Honour said:

"While this court has, on the present motions, been subjected to a considerable volume of material, most of it is directed at issues which are not central to the applications which Mr Freeman wishes the court to consider today or the orders he wishes the court to make. Much of the material seeks to re-canvass the question of whether the judgment of Ambrose J was correct, and whether the consequential proceedings in the Court of Appeal, in the High Court, the making of a sequestration order, and the unsuccessful appeal from the making of that order are consequently tainted."

13 The appellant’s appeal to the Full Court was dismissed. The Court said:

"The appellant placed a large volume of material before us which was primarily directed towards establishing that the decision of Ambrose J was wrong, ... there was little focus on the issues ...."

14 On 6 February 2004 Dowsett J rejected the appellant’s application under s 153B of the Bankruptcy Act 1966 for the annulment of the sequestration order of 12 March 2002. His appeal to the Full Court from that decision was stayed on 7 March 2004 pending payment of $5,000 as security for the Bank’s costs. In imposing the stay, Spender J said:

"In my judgment there is no question of legal principle involved in the appeal from the judgment of Dowsett J.
...
As the submissions by Mr Freeman on his own behalf ... confirm, what he is seeking to do is to demonstrate what he has been unsuccessful in demonstrating thus far in many proceedings, namely that decisions in favour of the National Australia Bank from the time of the first trial before Ambrose J and in successive proceedings, have been erroneously determined in favour of the bank and adversely to Mr Freeman."

15 An application for leave to appeal against the security for costs order was dismissed by Tamberlin J on 7 July 2005.

16 On 11 March 2005 the appellant filed an application for an order that the Trustees assign to him two actions he had commenced in the Supreme Court prior to his bankruptcy. The application was dismissed by Tamberlin J on 6 May 2005. An appeal to the Full Court was dismissed on 8 August 2005.

THE PRIMARY JUDGE’S REASONS

17 After setting out Order 21 rule 2 and considering the meaning of the word "proceeding", the primary judge said:

"Mr Freeman has commenced ten such proceedings in this Court concerning the [Bank] and at least six such proceedings concerning the [Trustees]. They have all been dismissed with costs, except one against the Bank which was stayed and except what Mr Freeman describes as a Cross Claim in this proceeding, to which reference will be later made."

18 The primary judge referred to authorities holding that while "court" in Order 21 rule 2 means the Federal Court, in considering whether proceedings brought in this Court are vexatious, regard may be had to proceedings in other courts which have involved the authoritative determination of an issue sought to be revisited in this Court. In this connection his Honour noted the institution by the appellant of numerous other proceedings in the Magistrates Court, District Court, Supreme Court, Court of Appeal and High Court.

19 Having examined the meaning of "habitually and persistently" and "vexatious" in Order 21 rule 2, the primary judge said:

"The question of whether the legal proceedings are in fact ‘vexatious’ or ‘instituted without reasonable cause’ is also an objective one. It is immaterial whether Mr Freeman believes in the justice of his argument or whether he understands that the argument has been authoritatively rejected. Continual attempts to re-litigate matters raised and rejected on previous occasions constitutes an abuse of process and have been found to satisfy the tests of ‘vexatious’ or ‘instituted without reasonable cause’ within the meaning of O 21 ....

The material before the Court demonstrates that Mr Freeman has made, and continues to make, strenuous efforts to re-ventilate in this Court the matters which have been determined against him on a number of occasions, both in this Court and in the Supreme Court of Queensland. This is nowhere more plainly demonstrated than by the ‘Defence and Cross Claim’ filed on 8 August 2005 in this proceeding."

20 His Honour then set out parts of the Defence relevant to the Cross Claim and the whole of the latter. It occupies seven pages of his Honour’s reasons, and we will not set it out ourselves. However, it can be summarized as follows:

• the respondents rely on misleading statements that have tainted the whole proceedings
• the appellant has discovered fresh evidence since the trial before Ambrose J and the hearing of the creditor’s petition in February 2002
• the Bank is acting dishonestly in the Order 21 rule 2 application
• the Trustees have unconscionably taken advantage of the Bank’s dishonesty
• in order to support the Order 21 rule 2 application, the Bank and the Trustees have

- used false and illegal accounting, including in the proceeding before Ambrose J

- withheld vital documents from discovery in various proceedings recorded at [4] to [16]

- delayed discovering vital documents in order to disadvantage the appellant

- fabricated documents

- given false evidence in some of the proceedings recorded at [4] to [16]

• Ambrose J did not investigate any of the matters recorded in the preceding point
• Ambrose J made factual mistakes in finding the appellant an unreliable witness
• the Court of Appeal did not disturb that finding
• documents generated by the Bank are at odds with evidence given by a Bank witness before Ambrose J.

21 The primary judge concluded his judgment as follows:

"The repeated commencement of proceedings and the making of appeals by Mr Freeman appear to be without regard to any assessment of his prospects, or of the existence of a legal basis for the order he seeks, given earlier legal failures to obtain similar orders.

In this proceeding alone, Mr Freeman has filed some 1500 pages of affidavit material, most of which is seeking to reargue that the decision of Ambrose J is wrong and that he is not indebted to the Bank but rather has a substantial claim against it. This is a matter that was decided adversely to Mr Freeman in 2001 and which he has sought to challenge and re-challenge since that time in both this Court and the Supreme Court of Queensland.

Mr Freeman is now discharged from bankruptcy. He thus faces an imminent risk of future costs orders being enforced against him. As recent proceedings including the ‘Defence and Cross Claim’ to this application indicate, unless prevented by the Court, Mr Freeman will continue with his Don Quixote quest against the Bank and the Trustees.

Proceedings seeking to revisit the orders of Ambrose J made after a contested trial at which Mr Freeman was represented, have been shown to be without reasonable grounds, and are vexatious. It is vexatious to seek to relitigate issues that have been authoritatively determined."

ORDER 21 RULE 2

22 Order 21 rule 2 provides:

"Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court."

23 Section 4 of the Federal Court of Australia Act 1976 defines "proceeding" as

"a proceeding in a court ... and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal."

24 The authorities on Order 21 rule 2 were reviewed by Sackville J in Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378. The following propositions can be distilled from his Honour’s judgment:

(a) in determining whether particular proceedings instituted in the Court are in fact vexatious, it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings;
(b) the expression "habitually and persistently" implies more than "frequently"; "habitually" suggests that the institution of a proceeding occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; "persistently" suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness;
(c) whether a person "without any reasonable ground institutes a vexatious proceeding" is to be determined objectively, and it is therefore immaterial that the person may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected;
(d) where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings to enforce such decision, which is in substance an attempt to relitigate what has already been decided, is the institution of legal proceedings for the purposes of the rule.

25 Sackville J based these propositions on existing authority, including Attorney-General v Wentworth (1988) 14 NSWLR 481, Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810 and Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478. The propositions have been approved in later cases in the Court: Commonwealth Bank of Australia v Heinrich [2003] FCA 540; Horvath v Commonwealth Bank of Australia [1999] FCA 504; Granich & Associates v Yap [2004] FCA 1567. In our view they accurately reflect the law on Order 21 rule 2.

GROUNDS OF APPEAL

26 There are thirty three grounds of appeal.

27 Ground 1 is an unparticularised allegation of error of fact and law on the part of the primary judge. All we need say here is that his Honour’s exposition of the law reflected the propositions at [24] and involved no error.

28 Ground 2 relates to the second sentence of [4] which records the primary judge’s statement that the Bank commenced proceedings for possession of Glassford Vale and money owing under the expired facility. It alleges various instances of improper or misleading conduct on the Bank’s part, including refusal to supply documents and failure to arbitrate, all of which are irrelevant to the primary judge’s narrative leading up to the decision of Ambrose J, and which highlight the appellant’s concern to reopen past decisions, in this instance those of Ambrose J and of Dowsett J refusing to annul the sequestration order. This ground discloses no error on the part of the primary judge.

29 In the course of recording the application for special leave to appeal to the High Court, the primary judge said that one of the matters relied upon in argument by counsel for the appellant was an alleged failure by the Bank to give proper discovery, a matter which had not been raised in the Court of Appeal. Ground of appeal 3 is that this issue was raised in the Court of Appeal. The transcript of the special leave application records Heydon J, with whom Kirby J agreed, saying:

"One matter on which particular emphasis was placed in oral argument concerned an alleged failure of the Bank to have given proper discovery of documents. The matter was not raised in the Court of Appeal and there is, in consequence, no finding and no affidavit evidence establishing the facts necessary to underpin the contention. In any event, as the matter was argued, it appears to affect only questions of quantification. The case is, accordingly, not a suitable one for the ventilation of that particular issue in relation to which the applicant relied on the principles stated in Commonwealth Bank of Australia v Quade [1993] HCA 55; (1991) 178 CLR 134."

Had there been proper material before the High Court, it may have entertained the discovery point, as the Court of Appeal would have been obliged to have done on the appeal from Ambrose J, had the matter been raised before it on proper material. But what the High Court might have done and the Court of Appeal would have been obliged to do, does not establish that the primary judge, on an application under Order 21 rule 2, had power to enter upon that question. It was simply not within the bounds of the application before him.

30 One of the issues in the appellant’s proceeding No 2339 of 2002 (see [7]) was whether the Bank was responsible for any default on the Receivers’ part. Ground of appeal 4 is that on the making of the sequestration order Spender J found that the Bank was not responsible for the Receivers’ actions, whereas in what is recorded at [7] the primary judge said it was. There is no such inconsistency. The primary judge said that one of the issues in No 2339 of 2003 was whether the Bank was responsible.

31 Ground 5 relates to the rule 668 proceeding that was dismissed by de Jersey CJ for lack of standing. It claims that the primary judge failed to take into account that, for various stated reasons, the Chief Justice "was wrong in law". Even if the Chief Justice was wrong in law and the primary judge did not take this into account, it discloses no error on the primary judge’s part. He was at this stage of his reasons merely recounting the curial history. It was no function of his at that or any later stage to decide whether the Chief Justice was right or wrong. The appellant did not appeal from the Chief Justice’s decision, and the primary judge was obliged to treat it as effective in accordance with its terms. We note in passing that the Chief Justice’s decision was unavoidable in view of the High Court’s decision in Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124.

32 Ground 6 relates to the Full Court’s dismissal of the appellant’s appeal from Spender J’s dismissal of his motion to compel the Trustees to commence an action against the Bank. He does not take issue with the primary judge’s account of this event, but asserts that his Honour failed to mention various matters the Full Court referred to and submissions the Bank’s counsel made to the Court. None of those omissions falsifies the relevant part of the primary judge’s narrative.

33 It will be recalled that Dowsett J rejected the appellant’s application to annul the sequestration order. Ground of appeal 7 asserts that Dowsett J was wrong in fact and law. This was not a matter for the primary judge to enter upon. It is not disputed that leave to appeal against the security order was refused and that security was not provided. Accordingly Dowsett J’s orders stood, and the primary judge had no jurisdiction to question their correctness.

34 Having recorded that Tamberlin J dismissed the assignment application on 6 May 2005, and that an appeal was dismissed by a Full Court on 8 August 2005 (see [16]), the primary judge noted that the Order 21 rule 2 application was filed on 3 June 2005, that is after Tamberlin J’s decision and before the Full Court’s. Ground of appeal 8 is that the primary judge failed to mention that Tamberlin J refused to accept an affidavit tendered by the appellant over a dishonest objection by the Bank’s counsel. This is irrelevant to the primary judge’s narrative which, as we have said, merely makes a chronological clarification.

35 Grounds 9 and 10 relate to what we have recorded at [16]. Ground 9 is that the application for an order that the Trustees assign to the appellant certain actions "tested the point the Trustee would refuse without an order of the court to assign any cases or choses in action to [the appellant] after the Full Court appeal on assignment 4 December 2004". This does not allege any error. Ground 10 is that Tamberlin J and the Full Court "supported the Trustee’s decision of not assigning any chose in action without a court order". This ground too does not assert any error on the part of the primary judge.

36 Ground 11 relates to what we have recorded in the last sentence of [18]. The primary judge spoke of "numerous" other proceedings in various Queensland courts and the High Court. The appellant asserts that this is "wrong in fact", and that there were only four proceedings in the Queensland Supreme Court and "2 supported by failed applications of NAB under UCPR r 293 and one appeal withdrawn, one is current". The primary judge did not assign a number to the proceedings to which he referred. He simply said they were numerous. If the appellant’s number of proceedings in the Supreme Court is correct, it does not falsify his Honour’s remark that there were numerous proceedings in the various Courts he enumerates, only one of which was the Supreme Court.

37 Ground 12 appears to assert that an action is not vexatious if there is "a fact or legal principle that could be tried". Reliance is placed on Rajski v Powell (1987) 11 NSWLR 522. A perusal of that decision of the Court of Appeal does not disclose any such proposition. In any event, it was not concerned with a fact situation such as that involved in the present case, namely "continual attempts to relitigate matters raised and rejected on previous occasions". Ramsey v Skyring supports all the primary judge said in the part of his reasons to which this ground is directed, namely the first quoted passage at [19]. His Honour decided the case in accordance with the propositions at [24] that we have adopted.

38 Ground 13 appears to be directed to what the primary judge said that is recorded in the second quoted passage at [19]. It is that:

"The issue is not the number of actions the issue is the fact that the circumstances continually changed, because the Court gave credibility to facts discredited by fresh evidence and an avenue to produce that evidence to the Supreme Court of Queensland through UCPR O r 668 that was denied at various times by the Federal Court ...."

To the extent we can understand the ground, it appears to be another attempt to revisit Ambrose J’s decision and those of this Court – the sequestration order, the dismissal of the appeal from that order, and the dismissal of the assignment and annulment applications.

39 Ground 14 is that

"the problem for the Court System now being in the Defence and Cross Claim in QUD 145/05 lies issues of fact unheard and which discredit the respondent applicants actions, and thus which brings into question, the further facts affecting this application."

QUD 145/05 is the proceeding judgment in which is the subject of the instant appeal. Whatever the appellant may intend to convey by this ground, it does not assert any error by the primary judge.

40 Grounds 15 and 16 can be taken together. They appear to assert that the multiplicity of proceedings commenced by the appellant cannot be laid at his door to make him a vexatious litigant because the need for such proceedings is attributable to the incorrect affidavits of documents filed by the Bank and the Trustees. An allegation of unprofessional conduct by the Bank and the Trustees or their practitioners, even if made out, does not disclose any error on the part of the primary judge. Rather it underlines the appellant’s obsession with the outcome of proceedings that are now part of the historical record, which he nevertheless seeks to re-litigate.

41 The first part of ground 17 is directed to the first sentence quoted at [21]. The appellant complains that the primary judge fails to mention that "the proceedings were all commenced originally by NAB". It is true that the proceeding first in time was the Bank’s. The primary judge spoke of the "repeated commencement of proceedings and making of appeals by [the appellant]". His Honour was aware that it was the Bank which commenced the original proceeding, in which the appellant counterclaimed. He is not to be taken to have intended to convey by the words "repeated commencement of proceedings" that the appellant fired the first shot.

42 Ground 17 then moves to a different topic by asserting that the primary judge "failed to examine the evidence of the defence and cross claim" which, it is said raises "allegations of illegality fatal to an application under Order 21 r 2". We have summarized the cross claim at [20]. It was no part of the primary judge’s function to "examine the evidence of the defence and cross claim". He had no jurisdiction, on an application under Order 21 rule 2, to re-open issues that had passed into judgment and, in most cases, been confirmed on appeal. The summary at [20] makes clear that that is what the appellant sought to have the primary judge do. We agree with his Honour that the cross claim "demonstrate[s] the continuing attempt by [the appellant] to challenge findings and orders made adversely to him in previous litigation and which have been conclusively determined".

43 Ground 18 is directed to the last passage quoted at [21]. It is that

"section 60(i) of the Bankruptcy Act 1966 (Cth) stops revisiting the judgment of Ambrose J except by assignment refused by the Trustee and the Federal Court. Consequently for the reasons stated the orders of [the primary judge] in this instance are superfluous and seek to grant the Applicants unjustified support whilst not examining the evidence against their application."

It seems likely that the reference to s 60(i) should be to s 60(2). In any event, the only error possibly encompassed by the ground is that the primary judge failed to examine the evidence against the application under Order 21 rule 2. The appellant has pointed to no evidence militating against the order made by the primary judge that his Honour was at liberty to take into account. As we have said in relation to other grounds, it was not his function to reopen issues the subject of completed litigation.

44 Ground 19 asserts three errors. The first is that the primary judge denied the appellant natural justice by not examining his defence and cross claim. The primary judge did examine that pleading. It was central to his decision to grant relief under Order 21 rule 2. What the appellant appears to mean is that his Honour did not investigate the merit of the cross claim. As we have said elsewhere, that was not his function. The only relevance of the cross claim was that it bore on whether the relief sought by the Bank and the Trustees should be granted.

45 The second error alleged in ground 19 is that the primary judge erred in not examining whether the mistakes made by Ambrose J have been ventilated in a court of competent jurisdiction. The appellant requires the court to assume Ambrose J made mistakes, because he says the issue is not "whether Ambrose J made mistakes", but whether "those mistakes have been ventilated in a court of competent jurisdiction". There is no substance in this ground. There was an appeal to the Court of Appeal. The appellant had the opportunity to draw attention to what he alleged were Ambrose J’s mistakes. He was represented by counsel. The Court of Appeal discerned no error, and dismissed the appeal. That Court was plainly a court of competent jurisdiction. If this part of ground 19 is intended to say that the primary judge should have reviewed the Court of Appeal’s decision to determine whether it had competently carried out its review of Ambrose J’s decision, it is unsound. The primary judge had no power to go behind the Court of Appeal’s decision.

46 The third error alleged in ground 19 is that the Bank and the Trustees misled the appellant. We consider this part of the ground in association with the same complaint in other grounds dealt with at [49].

47 Ground 20 is that an application under rule 668 in S4013 of 1998 has not been heard, and "therefore there are no grounds for stating the issues have been relitigated". The fresh evidence application was heard by de Jersey CJ and was dismissed for lack of standing. See [11]. If the appellant means to say that the application was not determined on the merits, he is correct. However the primary judge did not say that the rule 668 application had relitigated the issues.

48 Ground 21 is as follows:

"[The primary judge] in his reasons states that each application was for a separate legal purpose by his enunciation of the separate proceedings. HH has failed to enunciate the factual mistakes, alone providing grounds, the inferences therefrom, providing legal grounds and the failure to make decisions on the whole of the application creates an incomplete judgment. Before considering the material facts and elements in the defence and cross claim."

We are unable to attribute any sensible meaning to this ground. If the incomplete last sentence complains that the primary judge failed to investigate the merits of the cross claim, we refer to what we have said at [44].

49 Grounds 22 to 32 (as well as the third alleged error in ground 19) all relate to alleged improper conduct by the Bank and the Trustees in the earlier proceedings. The appellant contends that the primary judge misdirected himself by looking to the "frequent actions" when the real question was whether the Bank and the Trustees and their practitioners were aware, or ought to have been aware, of any of the material facts in the cross claim. None of these grounds is sustainable. It was not within the scope of the Order 21 rule 2 application for the primary judge to have revisited the earlier proceedings in order to determine whether the Bank, the Trustees or their practitioners had engaged in improper, unprofessional or fraudulent conduct, any more than it was within his province or power to rehear or review those proceedings. We refer to what we have said at [29].

50 Ground 33 repeats the claim that the primary judge did not take into account all the circumstances of the cross claim. We have already dealt with this ground at [44].

51 None of the grounds of appeal has been made out, and the appeal must be dismissed with costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg and Kenny.

Associate:

Dated: 19 May 2006

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 3 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LYNTON NOEL CHARLES FREEMAN (A BANKRUPT) APPELLANT
AND:	NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) FIRST RESPONDENT MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN SECOND RESPONDENT

JUDGES:	SUNDBERG, KENNY AND GYLES JJ
DATE:	19 MAY 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

GYLES J

52 I have had the advantage of reading the reasons of Sundberg and Kenny JJ in draft and agree with them. I would prefer to leave for another day the question as to whether the extended definition of ‘proceeding’ should be applied where the word appears in O 21 r 2. There is ample basis for the order made on any view of the answer to that question.

53 I would add that the narrative of events set out in the judgment of Spender J at [3]–[24] is a somewhat cautionary tale concerning mediation. It is quite clear that the appellant has never accepted the result of the mediation. It is no criticism of this particular mediation to note that the pressure to obtain a result and the lack of safeguards for individuals built into the process can, and do, lead to unhappiness with outcomes. As this case illustrates, that is particularly so where a participant has a strong sense of grievance. With the benefit of hindsight, there is little doubt that it would have been better for all concerned if the merits of the appellant’s case had been fully explored in open court and dealt with by a reasoned judgment without the complication of the agreement arrived at as a result of the mediation.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 19 May 2006

The appellant appeared in person.

Counsel for the First Respondent:	I Perkins
Solicitors for the First Respondent:	Mallesons Stephen Jaques
Solicitor for the Second Respondent	D Locke, Forbes Dowling Lawyers
Date of Hearing:	16 May 2006
Date of Judgment:	19 May 2006