Brian Ross Eckert and Raelene Jean Eckert v National Australia Bank Ltd No. SCGRG 96/2036 Judgment No. 6130 Number of Pages 7 Procedure Abuse of Process

In the Supreme Court of South Australia, the defendant National Australia Bank Ltd has applied for the statement of claim brought by Brian Ross Eckert and Raelene Jean Eckert to be struck out. The dispute revolves around allegations that the Bank made false and misleading representations about the worth of farming land and the profits that could be made from it, as well as claims that the Bank breached its duty to advise the Eckerts to seek independent advice. The Eckerts claim damages for negligence, breach of fiduciary duty, under the Trade Practices Act, under the Misrepresentation Act, and for unconscionable conduct. The Bank argues that the Eckerts' claim is an abuse of process and a contempt of court, as it duplicates a counterclaim filed by the Eckerts in an earlier action between the same parties.

The court had to decide whether it was an abuse of process for the Eckerts to bring a separate action that seeks the same relief as their counterclaim in the earlier action, and whether the Eckerts' use of documents discovered in the Bank's action constituted a contempt of court. The court also had to consider whether the Eckerts' claim was out of time under the Limitation of Actions Act. The court found that it was indeed an abuse of process for the Eckerts to bring the separate action, as it duplicated their counterclaim in the earlier action. However, the court was not satisfied that the use of the discovered documents constituted a contempt of court. The court also found that the Eckerts' claim was out of time, but that the matter should be stayed rather than struck out to allow for a proper investigation of the issues at trial.

The court ordered that the parties make discovery in the action within seven days relating only to the issues raised by para.84.4 of the statement of claim, and that further proceedings in the action be stayed. The court also reserved to the plaintiffs liberty to apply to the trial judge in the earlier action for an order lifting the stay and for any consequential orders relating to these proceedings as may seem appropriate to the trial judge. The court ordered that the plaintiffs pay to the defendant its costs of the hearings before the court.