Bendigo & Adelaide Bank Limited v Uebergang - [2015] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BENDIGO & ADELAIDE BANK LIMITED v UEBERGANG
[2015] SASC 92
Reasons for Decision of The Honourable Justice Lovell
19 June 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court by an unsuccessful appellant to a judge of this Court - whether the document, on its face, is an abuse of process.
Held: Proposed notice of appeal an abuse of process; Registrar directed to reject it for filing.
Supreme Court Civil Rules 2006 (SA) rr 53, 282, 291, referred to.
Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99 [13] (Gray J), considered.

BENDIGO & ADELAIDE BANK LIMITED v UEBERGANG
[2015] SASC 92
Civil
LOVELL J.
Introduction

Dennis Andrew Uebergang has sought to file a Notice of Appeal to the Full Court of the Supreme Court. He seeks to appeal against the possession order made by his Honour Judge Withers in the Supreme Court on 3 December 2014.
Extension of time
As part of the Notice of Appeal,[1] Mr Uebergang has sought an extension of time due to his current financial hardship and unemployment to facilitate the necessary time to seek legal advice for an appeal. According to Mr Uebergang’s affidavit, dated 28 May 2015, he has not been able to find employment since November 2013.
[1] Supreme Court Civil Rules 2006 (SA) r 282(2)(f).
On 18 May 2015, Mr Uebergang sought a six month extension to sell the property. This application was refused by his Honour Judge Dart. Therefore, with respect to what appears to be an application for an extension of time within which to appeal, Mr Uebergang is merely asking for further indulgence of the Court so that he may sell the property himself.
Mr Uebergang has offered no new evidence to support an extension of time application. Mr Uebergang has not complied with the Court’s order to sell the property, despite the bank extending the time to do so.
Factual background
On 25 January 2007, Mr Uebergang agreed to mortgage his property at 9 Eucla Court Mount Gambier, South Australia 5290 (“the property”) to Bendigo and Adelaide Bank Limited (“the bank”).
Pursuant to the terms of a Memorandum of Mortgage, Mr Uebergang secured a monetary amount of $100,000.00 from the bank, which he agreed to repay including interest.
By February 2014 Mr Uebergang had defaulted on his repayments under the Memorandum of Mortgage.
On 11 February 2014, the bank formally served a Default Notice informing Mr Uebergang that an amount of $2966.43 was outstanding and that enforcement proceedings may begin if the default was not remedied by 17 March 2014.
Mr Uebergang did not pay the default amount within the specified time limit in the Default Notice. As a result, the bank sought to exercise its power of sale over the mortgaged property and applied to the Court for an order of possession of the property.
On 3 December 2014, Judge Withers made an order of possession requiring Mr Uebergang to handover the bank possession of the property subject to the Memorandum of Mortgage within 42 days of being formally served a copy of the order of possession.
On 14 May 2015, by interlocutory application Mr Uebergang sought an additional six months extension to sell the property. On 18 May 2015, Judge Dart dismissed the application.
On 20 May 2015, the Senior Deputy Registrar granted a warrant for possession to the bank.
The Rule 53 referral
On 4 June 2015, pursuant to r 53 of the Supreme Court Civil Rules 2006 (SA) the Registrar referred to me the proposed Notice of Appeal that Mr Uebergang sought to file. In general, this rule provides for a power to reject documents submitted for filing where to do so would be an abuse of the process of the Court. Specifically, the rule provides that;
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3) If the Judge or Master so directs, the Registrar will reject the document.
(4) ...
Gray J carefully considered the principles relevant to the exercise of rule 53 in a recent decision of this Court.[2] I with respect, adopt those same principles as sufficient for present purposes.
[2] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
The purpose of rule 53, in part, is the need for courts to protect their resources while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[3]
[3] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99 [13] (Gray J).
The Interlocutory Application
Mr Uebergang seeks to file an interlocutory application supported by affidavit material for permission to appeal to the Full Court of this Court.[4] None of the documents referred to above are in the proper form. The application is erroneously endorsed as having been made pursuant to rule 58 of the Supreme Court Civil Rules 2006 (SA).
[4] Supreme Court Civil Rules 2006 (SA) r 291(1)(b).
In addition, neither the interlocutory application nor the affidavit material set out any relevant or coherent grounds to support the request to appeal to the Full Court. The documents are nothing more than an unintelligible narrative setting out Mr Uebergang’s history of financial and employment difficulties. Many of the complaints raised by Mr Uebergang are irrelevant, embarrassing and difficult to comprehend.
In the circumstances, the interlocutory application and affidavit material if filed would be an abuse of the processes of the Court.
The proposed Notice of Appeal
The proposed Notice of Appeal consists of a total of six grounds of appeal, which together or in isolation do not identify the basis of any asserted error in law or fact.
The first ground of appeal alleges procedural unfairness. Mr Uebergang submits that he was disadvantaged because the proceedings were conducted via teleconference. However, a teleconference was specifically arranged to accommodate Mr Uebergang given he notified the Court that he was unable to travel from Mount Gambier into the city to attend the proceedings due to various personal reasons, namely; having no means of transportation and no available funds.
In any event, his failed application before Judge Dart renders this ground nugatory.
The other matters raised are not grounds of appeal.
Other than the fact that Mr Uebergang is aggrieved by his unfortunate financial position, the proposed Notice of Appeal does not identify any relevant ground of appeal.
In the circumstances, the proposed Notice of Appeal, if filed, contains matter that is frivolous and vexatious and therefore would constitute an abuse of the process of the Court within the meaning of rule 53 of the Supreme Court Civil Rules 2006 (SA).
Directions of the Court
I direct the Registrar to reject the interlocutory application and its attaching affidavits for filing.
I further direct the Register to reject the Notice of Appeal for filing.
I also direct that a copy of these reasons be provided to Mr Uebergang.