Charan v Commonwealth Bank of Australia

LEEMING JA: Mr Prabhakar Charan commenced proceedings by statement of claim filed in October 2016 against the Commonwealth Bank of Australia, the Registrar-General, and the trustees in bankruptcy of his wife and son. He appears to be unassisted by any lawyer. There can be no dispute that the pleading is materially defective. The primary judge (Darke J) was told as much by counsel formerly retained by Mr Charan, and the draft notice of appeal seeks orders permitting the pleading “to be amended in a satisfactory form”.

The real issue which arises on this application for leave to appeal is not so much the decision to strike out the statement of claim, but the decision to dismiss the proceedings. Consequently, it is possible to pass over the details of the statement of claim, but it is necessary to say something about the background to this litigation.

It is convenient to reproduce the following from the decision of this Court in Charan v Commonwealth Bank of Australia [2015] NSWCA 364 at [1]-[8] (Basten JA, Tobias AJA agreeing):

The Court dismissed the application for leave to appeal from the judgment of McDougall J. That is the essential background to the present litigation, which is between the same parties (save that Usha Wati Charan is not a plaintiff and that Mr Charan has this time joined the Registrar-General).

The primary judge recorded that the defendants’ motions to strike out the statement of claim and to dismiss the proceeding were adjourned, when solicitor and counsel then retained advised in April 2017 that it was not sought to support the present statement of claim: at [8]. When the matter returned on 12 May 2017, the solicitor had ceased to act, and Mr Charan was represented by his wife, as has occurred tody with the Court’s leave. The primary judge referred to the history of litigation from [11]-[16] and expressed the view that the pleading should be struck out: at [19]. As noted at the outset, that is not in issue on this application for leave.

At [20] and following, the primary judge considered whether the plaintiff should be given a further opportunity to plead his case. In light of the history, his Honour considered that it was appropriate to proceed immediately to decide whether the proceedings should be dismissed.

His Honour identified three issues sought to be raised: that the plaintiff had an interest in the properties under a resulting trust which was therefore not property divisible amongst the creditors of the two bankrupts; that the trustees in bankruptcy became registered wrongfully; and that the power of sale was exercised wrongfully. His Honour regarded the first issue as falling within the exclusive jurisdiction of the Federal Court or the Federal Circuit Court, and saw no merit in the second and third issues.

His Honour expressly stated that the power to dismiss a proceeding summarily was to be exercised sparingly and only in clear cases where no tenable claim exists, and that the plaintiff’s claim must, in effect, be manifestly groundless: at [28].

His Honour exercised the power of summary dismissal, but on a qualified basis. White J had earlier dismissed the earlier proceedings subject to a particular qualification:

Darke J made it plain that the dismissal of the current proceedings was “not intended to diminish the right which White J referred to at [49] of his judgment”.

Mr Charan seeks leave to appeal from the summary dismissal. Leave is required because the order was interlocutory. In my view, leave to appeal should be refused for these reasons.

First, no question of principle or of general importance arises, because it is plain that Darke J applied the very high standards applicable to summary dismissal. It is therefore necessary for Mr Charan to demonstrate an injustice which is reasonably clear, in the sense of going beyond what is merely arguable.

Secondly, even today, more than three months after the summary dismissal, no proposed pleading has been provided. When this was raised with Ms Charan she confirmed that no such pleading had been brought into existence and lawyers had not yet been retained in that respect.

Thirdly, it is plain that Mr Charan is not prevented from litigating, if he chooses to do so, the matter left open by each of White and Darke JJ.

Fourthly, the summary of argument supplied by Mr Charan is long (indeed, slightly longer than is prescribed by the rules) but none of it is directed to identifying errors by the primary judge. Instead, it is directed to setting out a history of dissatisfaction with the bank and the trustees in bankruptcy. I appreciate that Mr Charan is unassisted by lawyers and has a grievance in relation to what has occurred. However, the summary of argument does not indicate why Darke J erred in dismissing the proceeding. Nor is there anything in Darke J’s reasons which is suggestive of appellable error.

Fifthly, the section of the summary of argument directed to “Why leave should be granted” is relatively concise. In its entirety, it states:

Nothing there persuades me that there was appellable error in the primary judge summarily dismissing the proceeding.

Ms Charan in oral submission confirmed that she did not seek to defend the current pleading. Her principal submission was that she should be given another chance to amend the proceedings pursuant to s 64 of the Civil Procedure Act. She maintained that Mr Charan enjoyed a beneficial interest under a resulting (or perhaps a constructive) trust. However she had no answer to the proposition relied upon by Darke J that this Court had no jurisdiction in that respect. She also maintained and reiterated her complaints and indeed allegations of misconduct directed to the bank and the trustees in bankruptcy but once again she did not go beyond the matters addressed by Darke J or single out any aspect of his reasons for criticism despite being invited to do so by this Court, indeed repeatedly.

For those reasons I propose that the application for leave to appeal be dismissed with costs.

PAYNE JA: I agree with Leeming JA.

LEEMING JA: The order of the Court therefore is that the summons seeking leave to appeal filed 9 June 2017 is dismissed with costs.