Donnelly v Australia and New Zealand Banking Group Limited

By her summons, the plaintiff seeks, what she describes as ‘judicial review’ of a decision to refuse an amendment. The refusal of the amendment was made two and a half years ago by Stevenson J on the third day of a hearing that took place before him in November 2013. Much water, indeed torrents, have flowed under the bridge since then. The defendant Bank applies to have the summons summarily dismissed.

I will return later to the history of the litigation preceding this application. It is long, tortured and marked by the plaintiff’s singular lack of success. Relevantly however, a similar application was made by the plaintiff in May 2015 in which she also filed a document described as ‘Summons (Judicial Review)’. That was also an application to ‘review’, although it related to other orders of Stevenson J. On 13 May 2015 Darke J dismissed that summons. Among other things, he made the following comment, which appears to have fallen on deaf ears:

The plaintiff’s counsel now says that he relies upon the inherent jurisdiction of the Court to justify the ‘judicial review’ of the decision of Stevenson J refusing her application to amend. I do not think that there is any basis upon which the inherent jurisdiction of the Court can assist her in these circumstances. The court’s inherent jurisdiction is not a back door method by which unsuccessful litigants can seek to re-argue their cases: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 (Mason CJ). Nor is it generally available in cases in this court which are clearly intended to be outside its statutory jurisdiction.

The plaintiff has lost her home and is understandably aggrieved. Her desperation has however led to one unreasonable application after another. Her fundamental complaint on this application is that the refusal to allow the amendment of her defence on 13 November 2013 was infected by an absence of procedural fairness, a denial of natural justice, a reasonable apprehension of bias and irregularity. She contended before Stevenson J that the Bank owed her a duty to inform her of the availability of forward exchange contracts as protection against a unilateral loan currency conversion by ANZ Asia Limited. In effect, she alleged that there was non-disclosure by the Bank of something that the Bank had a duty to inform her about.

In the written submissions put forward on behalf of the plaintiff on this application, she asserts that: ‘His Honour immediately abandoned his judicial independence and became an advocate for ANZ and immediately rejected the leave application’. She added that Stevenson J: ‘misunderstood and confused the leave application and pleaded ANZ's case by saying that ANZ would be entitled to an adjournment to consider further evidence without having heard from ANZ and without consideration of the fact that in any event the further hearing date of 15 November was available’.

I have no sympathy for the plaintiff's contentions. The transcript of the hearing before Stevenson J on 13 November 2013 includes this exchange:

His Honour subsequently gave the following formal reasons:

What is astounding about this application is that the substantive matter of which the plaintiff complains, namely the existence of a duty of disclosure and a breach of that duty, were rather generously dealt with by the Court of Appeal in the hearing of the plaintiff’s appeal from the final decision of Stevenson J.

On 1 April 2014 during the hearing of the appeal, the Court of Appeal was made aware that the duty of disclosure point had been raised before the primary judge and that an application to amend to include such a claim had been rejected. Leeming JA stated that in relation to that ground, it was necessary to overturn the decision rejecting the application to amend.

In fact, no application for leave to appeal from the interlocutory decision of Stevenson J was ever made. Nonetheless the Court of Appeal chose to deal with the substance of the allegation of non-disclosure. In its decision and reasons given on 9 May 2014, the Court considered the essential facts which gave rise to the allegation of non-disclosure and held that:

That finding effectively carries with it the conclusion that Stevenson J was justified in refusing leave to amend and that if leave to appeal had been granted the ground of appeal would have failed.

There are other more worrying aspects of this application which further justify its dismissal. The history of these proceedings indicates not just a determination by the plaintiff to doggedly pursue her supposed rights, but an attitude by both her and her legal representatives which is inappropriate for the efficient conduct of proceedings in this Court at any time.

This Court functions mostly efficiently in dispensing justice to thousands of litigants when it receives the co-operation of legal practitioners who make judgments with good sense and moderation about the merits of their clients’ claims. When that good sense and moderation are absent, there can be a proliferation of unnecessary and often hopeless applications. We see it from time to time with litigants in person. We do not expect to see it when litigants are legally represented.

I had occasion some years ago to emphasise the need for sensible co-operation and sound judgment by counsel. In Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at [22] I said that:

And again in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 at [30] I said that:

In Giannarelli v Wraith (1988) 165 CLR 543 at 556-7 Mason CJ highlighted the importance of counsel exercising ‘independent’ judgment to aid the efficient administration of justice:

This aspect of counsel’s duty is also encapsulated in Reg 42 of the Legal Profession Uniform Conduct (Barristers) Rules 2015:

And as the Hon Gerard Brennan AC KBE observed in ‘Ethics and the Advocate’, Bar Association of Queensland, Continuing Legal Education Lectures, No. 9/92 – 3 May 1992, counsel ‘is not an amanuensis or spokesperson for a client’.

The sequence of events and the proliferation of litigation in this controversy is bordering on disgraceful. It is as follows:

In addition to that sorry litany of wasted litigation, I should observe that the plaintiff made three unsuccessful stay applications which were determined in 2013 and 2014. And there have been numerous costs orders made against her, including indemnity costs orders.

I am afraid the time has come to put a stop to this unnecessary litigation. Enough is enough. I have already expressed my concern about the conduct of these proceedings and the responsibilities of the plaintiff's legal representatives to act with good judgment, common sense and moderation. The plaintiff has failed comprehensively at every step along the way. The public resource of the courts is not available to indulge endlessly the misconceived whims of disappointed litigants. The public interest in the finality of litigation requires that an end be brought to hopeless causes. It is time to close the book. And it is appropriate to repeat the wisdom of Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at 569 :

What is before me is an application by the Bank for the summary dismissal of the plaintiff’s summons for ‘judicial review’. It is based upon the grounds set out in UCPR 13.4. The Bank seeks the dismissal of these proceedings on the grounds that they are frivolous and vexatious or that no reasonable cause of action is disclosed or that the proceedings are an abuse of the Court. It also seeks an order that the plaintiff be prohibited, without the prior leave of the Court, from filing any further application or instituting any further proceedings in relation to the original 2011 proceedings or the subject matter of those proceedings, including the loan agreement and the mortgage with which those proceedings dealt.

In the circumstances, given the utterly misconceived nature of the summons – whether or not it seeks to rely upon the inherent jurisdiction of the Court – and given the entirely unmeritorious and unsatisfactory history of this litigation, an order prohibiting the plaintiff in those terms is justified. The interests of ‘peace, certainty and security’ require it. An indemnity costs order is also justified but that will be of little solace to the Bank. Indeed, if an appropriate application were made, I would consider the making of a costs order personally against the plaintiff's legal representatives.

For those reasons, I make orders in accordance with prayers 1, 2, 3 of the Notice of Motion dated 19 February 2016.