Bryant v Anz Banking Group Limited [1999] NSWSC 100 (19 February 1999)

Last Updated: 13 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Bryant v. ANZ Banking Group Limited [1999] NSWSC 100

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4089/98

HEARING DATE{S): 19/02/99

JUDGMENT DATE: 19/02/1999

PARTIES:

Adrian Cecil Bryant (P)

Australia & New Zealand Banking Group Limited (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. M. Abdul-Karim (P)

Mr. R. Montgomery (D)

SOLICITORS:

John McEnroe & Company (P)

Everingham Solomons (D)

CATCHWORDS:

ACTS CITED:

DECISION:

See paragraph 21

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 19 February 1999

4089 of 1998 ADRIAN CECIL BRYANT -v-

AUSTRALIA & NEW ZEALAND BANKING

GROUP LIMITED

1 MASTER: There is presently before me a Notice of Motion filed by the defendant, Australia & New Zealand Banking Group Limited on 24 September 1998, by which the defendant seeks substantively an order that the proceedings brought by the plaintiff, Adrian Cecil Bryant, be summarily dismissed pursuant to Part 13 rule 5 of the Supreme Court Rules. That rule provides, in subrule (1) thereof:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings ---

(a) no reasonable cause of action is disclosed;

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court.

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

2 The substantive proceedings were instituted by a Statement of Claim filed by the plaintiff on 19 June 1998. The cause of action asserted in that pleading may be described as a cause of action based upon the conduct of the defendant in its capacity as the mortgagee of the plaintiff. The plaintiff, by that pleading, asserted that he entered into certain agreements with the defendant and that he gave mortgages over various pieces of rural property to the defendant, and that the defendant, in exercising its rights as mortgagee over those pieces of rural property and in exercising whatever rights it might have had over cattle of the plaintiff located on some or all of those properties, acted in such a way as to give rise to a cause of action in the plaintiff.

3 The ground upon which the defendant makes the present application for summary dismissal of the proceedings is that the present proceedings in the Supreme Court are, so it is submitted, an attempt by the plaintiff to re-litigate matters which have already been conclusively and finally decided in the Federal Court of Australia. To the extent that the present proceedings are an attempt to re-litigate what has already been decided in the Federal Court, the present proceedings are, so it is submitted by the defendant, an abuse of the process of the Supreme Court.

4 On 16 October 1997 Justice Lindgren in the Federal Court in Sydney delivered an ex tempore judgment in proceedings MG610 of 1994. The present plaintiff, Adrian Cecil Bryant, was described as the applicant in those proceedings and the present defendant, Australia & New Zealand Banking Group Limited, was described as the first respondent in those proceedings.

5 His Honour detailed the factual background to the proceedings before him and also set forth the procedural history of the matter. It is unnecessary for me to repeat the details of that factual background and procedural history. Suffice it to say, however, that there had already been before Justice Lindgren earlier interlocutory applications concerning the form of the pleadings in the Federal Court proceedings. The plaintiff in those proceedings made four separate attempts to formulate his cause of action in an appropriately framed pleading. The outcome of his Honour's decision was to the effect that the plaintiff had not established a cause of action disclosed in even the final of those attempted pleadings (described as the Third Amended Statement of Claim).

6 In consequent his Honour made orders on 17 November 1997 the effect of which was that the claim of the plaintiff in the proceedings before his Honour be summarily dismissed. Included in those orders (as order 5) was the following:

The applicant not be granted further leave to re-plead his claim.

7 The orders of Justice Lindgren of 17 November 1997 thus brought to an end the proceedings in the Federal Court of Australia. No attempt was made by the plaintiff to appeal from his Honour's decision to the Full Court of the Federal Court.

8 I have had the benefit of each Counsel sending to me written submissions before today's hearing. Those two sets of written submissions will be retained in the Court file.

9 It has been submitted on behalf of the plaintiff, in opposition to the present application for summary dismissal of the proceedings which he has brought in the Supreme Court, that the evidence in certain areas in support of the plaintiff's claim is now stronger than it was at the time of the various, and especially the ultimate, hearings before Justice Lindgren in the Federal Court. The plaintiff in particular seeks to rely upon evidentiary matters which establish, so it is submitted, that the defendant sold the cattle of the plaintiff at an undervalue.

10 It should be emphasised, however, that Justice Lindgren did not decide the matters before him upon the strength of the evidence asserted by the plaintiff to support the plaintiff's claim. His Honour decided the matter upon whether that evidence, assuming that the plaintiff could, at the final hearing, establish those evidentiary matters, could in any event sustain the cause of action relied upon by the plaintiff.

11 It does not seem to me that his Honour decided the matter in any way upon the strength of the evidence that the plaintiff could establish at the final hearing. His Honour was dealing with the question of whether the cause of action could be sustained, assuming that the evidence was as the plaintiff in his various pleadings asserted it to be.

12 But that matter of the strength of evidence, or even the approach by Justice Lindgren to evidentiary matters, is not determinative of the present application before me. I am satisfied (and indeed the plaintiff, through his counsel, does not appear to dispute this fact) that the present Statement of Claim is in substance identical to the pleadings which were relied upon by the plaintiff in the proceedings in the Federal Court and in particular to the final pleading in that Court (being the Third Amended Statement of Claim), and that the cause of action asserted in the Statement of Claim in the Supreme Court is in substance identical to the cause of action asserted by the plaintiff in the various pleadings in the Federal Court and ultimately in the Third Amended Statement of Claim in the Federal Court.

13 In Walton v Gardiner, a decision of the High Court of Australia [1993] HCA 77; (1993) 177 CLR 378, Mason CJ and Deane and Dawson JJ, in a joint judgment, said at 392-393:

The inherent jurisdiction of the superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

14 Thus it has long been established that, regardless of the purpose for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. (See, for example, Metropolitan Bank v Pooley (1885) 10 AC 210 at 220-221 and General Steel Industries Incorporated v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 128-130.)

15 Again, proceedings, although within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant and will constitute an abuse of process if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. (See Voth v Manildra Flour Mills Pty Limited [1990] HCA 55; (1990) 171 CLR 538.)

16 Yet again proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. (See, for example, Reichel v McGrath (1989) 14 AC 665 at 668 and Connelly v Director of Public Prosecutions (1964) AC 1254 at 1361-1362 per Lord Pearce.)

17 The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536 as

the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

18 In the instant case what the plaintiff is attempting to do is no more than to re-litigate a matter which has finally and conclusively been decided against him in the Federal Court of Australia. It is unnecessary to categorise the precise manner in which he is attempting to do that, be it called a contravention of the principle of res judicata or an application of the principle of issue estoppel or an application of what has been described as the Anshun principle (after the decision of the High Court of Australia in Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589).

19 It falls within the category described by the High Court of Australia in Walton v Gardiner when Their Honours quoted with approval what Lord Diplock said in Hunter v Chief Constable of the West Midlands Police. It constitutes, in my conclusion, an abuse of the process of the Court which entitles the Court to exercise its power to ensure that a plaintiff, who has had every opportunity to litigate the asserted cause of action in the Federal Court of Australia and has lost in that Court, should not be allowed now to attempt to re-litigate the same asserted cause of action in the Supreme Court.

20 Accordingly, I propose to dismiss the present proceedings.

21 I make the following orders:

1. I order that the proceedings be dismissed.

2. I order that the plaintiff pay the costs of the defendant of the Notice of Motion filed by the defendant on 24 September 1998 and of the proceedings.

I certify that this and the preceding

pages are a true copy of the reasons for

judgment of Master McLaughlin

Dated: 19 February 1999

Associate

Mark Provera

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LAST UPDATED: 12/04/1999