Biritz, George v National Australia Bank Ltd

[1995] FCA 1070

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION  No VG 899 of 1995

BETWEEN:

GEORGE BIRITZ

Applicant

-and-

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Coram:    Olney J

Place:    Melbourne

Date:     7 December 1995

REASONS FOR JUDGMENT

The applicant filed an application on 24 November 1995 which is said to be under ss 51AB(1), 51AB(3), 52(1), 53(g) and 53A(2) of the Trade Practices Act.   On grounds said to appear in an accompanying affidavit the applicant claimed by way of interlocutory relief first, an order directing the respondent to provide the applicant with all formal and official bank statements in respect of the bank accounts of the applicant and his former associated companies which are held by the respondent, for the period June 1989 to June 1995 in order to enable the completion of all of the applicant's taxation obligations pursuant to the Income Tax Assessment Act;  and second, an order directing the respondent to provide the applicant with all necessary documentation and information required in order for the taxation obligations of the applicant and his former associated companies to be completed for the same periods.
The application was supported by an affidavit sworn by the applicant on 23 November 1995 and to which are annexed numerous exhibits.

The matter first came before the Court on 30 November 1995 but was adjourned until today to enable the respondent to file further material in reply.   The respondent had filed a brief affidavit on 30 November 1995 replying to a couple of minor aspects of the applicant's affidavit, but sought, and was granted, leave to file a further affidavit which it did on 6 December 1995.

The applicant has also filed a notice of motion seeking leave to amend the original application to seek a final order directing the respondent "to immediately repay all moneys together with interest and bank charges to (him) whose money and funds have been unlawfully and dishonestly obtained from (him) and from his former associated companies by (the respondent) as a result of the respondent's unconscionable, misleading and deceptive conduct during the period of (his) financial dealings with (the respondents)".

The matter has been canvassed at considerable length today, and I do not propose to embark upon a recitation of all of the events and circumstances that have been referred to nor of the assertions and accusations that have been made.   The applicant has come to this Court seeking relief under a particular  statute.   Insofar as this Court is concerned his entitlements to relief under that statute are governed by the Act itself.   Further, the procedures of the Court are governed by the Federal Court Act and the Federal Court Rules.  Accordingly, it is not for the Court to embark upon an examination of matters which have nothing to do with the Court's functions.

So far as the notice of motion seeking to amend the application is concerned, I am of the view that there is absolutely no material to justify the making of the order sought.   In those circumstances it would be idle to permit the amendment and accordingly leave to amend is refused.   I might say furthermore that the emotive language in the notice of motion amounts to an abuse of process and is vexatious.   The notice of motion is dismissed.

The application has been brought under the provisions of the Trade Practices Act relating to unconscionable, misleading and deceptive conduct and the like.   It is said that relief is sought on grounds appearing in the affidavit.   Having read the affidavit and exhibits I am of the view that the relief sought has nothing whatsoever to do with any of the provisions of the Trade Practices Act upon which the application is based.   The applicant seeks to require the respondent to provide copies of bank statements and other document which are unspecified to enable the applicant to complete certain income tax returns.  This has nothing to do with the Trade Practices Act.   He has previously, in the Supreme Court of Victoria, sought precisely the same orders under the provisions of the Credit Act (Victoria).  On that occasion Beech J refused to grant the relief sought and held that the Act did not apply to banks.

Much has been said by the applicant concerning his complaints about the conduct of the respondent in relation to his affairs and the affairs of his associated companies.   The Court is not today trying questions relating to the respondent's conduct but rather it is dealing with an application for an order for the production of documents relating to bank accounts and other affairs of the applicant which are specifically related to his taxation affairs.

In my opinion there is no basis within the ambit of the application, based as it is on the Trade Practices Act, for the Court to grant the relief that is being sought.   In fact, taken in isolation I can say that the applicant has no reasonable cause of action in relation to this matter.   Taken in the context of the history of the applicant's dealings and his involvement in other litigation over recent years, it appears to me that the present application is both frivolous and vexatious.   In my opinion the applicant has not made out a case entitling him to the orders that have been sought.

In the circumstances of the case in view of the conclusions I have reached it is appropriate that in accordance with Order 20 rule 2 of the Federal Court Rules the application itself be dismissed generally.   I might add that if the applicant has a complaint against the respondent in respect of its conduct towards him he should address that complaint to the organisation which has been set up to deal with such complaints and not embark upon unnecessary and vexatious court proceedings.   The application will be dismissed.

The applicant must pay the costs, including any reserved costs.   It may be desirable if the applicant, when he obtains a copy of these reasons, to make them available to the taxation authorities.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard:        7 December 1995

Place:        Melbourne

Judgment:     7 December 1995

Appearances:

The applicant appeared in person.

Mr A. Schlicht (instructed by Russell Kennedy) appeared for the respondent.