Bilaczenko v E-TRADE Australia Ltd

[2013] FCCA 240

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILACZENKO v E-TRADE AUSTRALIA LTD [2013] FCCA 240

Catchwords:
CONSUMER LAW – Application for dismissal of proceedings pursuant to s.17A(2) of Federal Magistrates Act 1999 – no cause of action shown – no reasonable prospect of applicant successfully prosecuting the proceedings –proceedings dismissed – no matter of principle raised.

Legislation:

Federal Magistrates Act 1999, s.17A(2)

Federal Magistrates Court Rules 2001, r.13.10
Competition and Consumer Act 2010

Applicant: NICHOLAS BILACZENKO

Respondent: E-TRADE AUSTRALIA LIMITED

File Number: ADG 186 of 2012

Judgment of: Judge Simpson

Hearing date: 22 April 2013

Date of Last Submission: 22 April 2013

Delivered at: Adelaide

Delivered on: 22 April 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Chittleborough

Solicitors for the Respondent: Fisher Jeffries

ORDERS

1. The Application in a Case filed by the respondent on 9 November 2012 is granted and the proceedings are dismissed.

2. The applicant do pay the respondent’s costs of the action fixed in the sum of ONE THOUSAND, TWO HUNDRED AND FIFTY DOLLARS ($1,250.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 186 of 2012

NICHOLAS BILACZENKO

Applicant

And

E-TRADE AUSTRALIA LIMITED

Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application filed by the respondent in these proceedings seeking the followings orders: Firstly, that the proceedings be dismissed pursuant to s.17A(2) of the Federal Magistrates Act 1999 and r.13.10 of the Federal Magistrates Court Rules 2001; Secondly, that in the alternative paragraphs 2 to 24 and 28 to 77 of the affidavit of Nicholas Bilaczenko sworn 21 August 2012 be struck out pursuant to r.15.29 of the rules, and; Thirdly, that the applicant pay the respondent’s costs of and incidental to the application.

2. The respondent relied upon two affidavits.  Firstly, an affidavit of Linda Marie Griffin sworn 17 September 2012 and filed on 19 September 2012.  Secondly, an affidavit of Nicholas Stuart Linke – solicitor for the respondents – the affidavit being filed on 18 March 2013.  I have considered those affidavits.  I have also considered the written submissions that were very helpfully provided by the respondent. 

3. The applicant has been unrepresented throughout these proceedings. 

4. The initiating application that was filed on 29 August 2012 was brought by Mr Bilaczenko against E-TRADE Australia Limited and sought the following final orders:  (1) $46,000 in compensation; and (2) +7 (sic) percent per annum interest for five years.  The grounds of the application were as follows, and I provide them verbatim:

   “(1)A matter of interest to the general public;

   (2)Fault consumer product;

   (3)FMC recommendation for ASEC market integrity panel to examine the matter.”

5. The applicant has filed numerous affidavits in these proceedings.  I have considered each of them, but wish to mention in particular the following affidavits of Mr Bilaczenko. These affidavits are substantial and might be expected to give some suggestion of the applicants claim.

6. Firstly, the affidavit filed by Mr Bilaczenko on 29 August 2012.  That document does not give any proper indication of a cause of action under a Commonwealth law.  It mentions negligence, a potential common law claim, but gives no particulars.  This is not matter that I can consider without there first being a Federal element to the proceedings.  It’s fair to say that that affidavit does nothing to illuminate a proper cause of action on Bilaczenko’s behalf. 

7. The next affidavit that I mention is the affidavit filed by Mr Bilaczenko on 11 January 2013.  Again, this affidavit does nothing to illuminate what the cause of action is that the applicant wishes to pursue. As with the earlier affidavit referred to, fraud and deception are mentioned but no proper particulars provided.

8. The next of the affidavits that I mention is an affidavit that was filed by the applicant on 21 February 2013.  Again, that affidavit does not clearly identify a cause of action or put the respondent on notice of a claim.

9. Finally, there is the affidavit of Mr Bilaczenko filed on 14 March 2013. This affidavit does not assist the applicant in defending the respondent’s application.

10. Each of those affidavits is voluminous, but do nothing to properly identify a Federal cause of action. 

11. The initiating application that the applicant filed says on the first page:

    “This application is commenced in the court’s jurisdiction under the Competition and Consumer Act 2010.”

12. The Competition and ConsumerAct (“the Act”) came into effect on 1 January 2011 and yet the applicant relies upon facts as deposed in his affidavits that occurred well prior to the Act coming into force. The first of the incidents that the applicant relies upon seems to have occurred back in 2006. There were other factual matters relied upon that occurred up until about 2009. Clearly, any action that Mr Bilaczenko might have wanted to bring for events that occurred in 2006 could not be brought under the Competition and Consumer Act.

13. I heard submissions on behalf of the respondent this afternoon, and then gave Mr Bilaczenko the opportunity to explain to me what his cause or causes of action were.  He was unable to do so.  He did not inform the Court of anything that indicated a cause of action that could be brought.  In fact, the submissions that Mr Bilaczenko made, if I could call them that, were more a stream of consciousness rather than any proper attempt to identify for the court’s benefit a cause of action. 

14. I have power under r.13.10 of the rules to make an order dismissing a proceeding if the party prosecuting the proceeding or claim for belief has no reasonable prospects of successfully prosecuting the proceeding or claim. I am satisfied in this case that Mr Bilaczenko has no reasonable prospect of successfully prosecuting any proceeding or claim because none has been identified by him.

15. I did what I could to inform Mr Bilaczenko of the matters that he needed to address. During his submissions I informed him that he needed to address the matters that went to whether or not a proper cause of action was identified or could be identified.  He was unable to identify one.  In those circumstances, it is appropriate to dismiss the proceedings. 

16. I am not confident that, were I to give Mr Bilaczenko an opportunity to file an amended initiating application, we would be any further advanced when we came back after the filing of that document.  I am not satisfied that there is in fact any proper cause of action that can be identified on the material and for that reason I propose to dismiss the proceedings and make an order for costs.  I will hear from the respondent about the costs order. 

17. Having now heard further submissions on costs, I make the orders to be found at the beginning of these reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Date:  10 May 2013