Bride v Commonwealth Bank of Australia

[2007] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BRIDE & ORS -v- COMMONWEALTH BANK OF AUSTRALIA [2007] WASCA 91

CORAM:   WHEELER JA

MILLER AJA

HEARD:   19 FEBRUARY 2007

DELIVERED          :   4 MAY 2007

FILE NO/S:   CACV 32 of 2005

BETWEEN:   EDWARD JAMES BRIDE

First Appellant

WENDY MARGARET BRIDE
Second Appellant

EDWARD JAMES BRIDE AND WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERNYING FAMILY TRUST
Third Appellants

AND

COMMONWEALTH BANK OF AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ROBERTS-SMITH JA

File No  :CACV 32 of 2005

Catchwords:

Application to review interlocutory orders - Application to restrain solicitors - Application for interstate coram - Applicants previously declared vexatious - Turns on own facts

Legislation:

Nil

Result:

Leave granted to bring interlocutory applications
Leave granted to review orders
Application dismissed

Category:    B

Representation:

Counsel:

First Appellant              :     In person

Second Appellant          :     In person (Mr E J Bride)

Third Appellants           :     In person (Mr E J Bride)

Respondent:     Mr K J de Kerloy

Solicitors:

First Appellant              :     In person

Second Appellant          :     In person (Mr E J Bride)

Third Appellants           :     In person (Mr E J Bride)

Respondent:     Freehills

Case(s) referred to in judgment(s):

Commonwealth Bank of Australia v Bride [2004] WASC 177

Heydon v NRMA Ltd (2000) 51 NSWLR 1

JUDGMENT OF THE COURT: 

The application

1. This is an application to review two orders of Roberts‑Smith JA, which are interlocutory orders in an appeal.  The appeal itself is the Brides' appeal from a decision of Heenan J declaring them vexatious litigants, and which has the effect of putting to an end other appeals which the Brides are conducting in this Court (Commonwealth Bank of Australia v Bride [2004] WASC 177). The decisions of Roberts‑Smith JA which the Brides seek to have reviewed are decisions refusing two types of orders sought by the Brides. One was that there be, in effect, a coram for the appeal consisting entirely of Judges from out of Western Australia and the other, although expressed in a variety of forms, effectively seeking to restrain Freehills from acting as solicitors in the appeal.

The background

1. To oversimplify a long and complex set of proceedings, the background is, very broadly, as follows.  The appellants owned certain properties which were the subject of securities in favour of the respondent Commonwealth Bank.  There were defaults in repayment of the mortgage.  There were disputes relating to the enforcement of the bank's securities.  One of those disputes resulted in two caveats being removed from the appellants' properties.  In those proceedings Freehills acted against the appellants.  Following removal of the caveats, the properties were sold to Milne Feeds Pty Ltd ("Milne Feeds").

2. Milne Feeds is, it is alleged, ultimately owned by Muirwil Nominees Pty Ltd ("Muirwil Nominees").  The directors of Muirwil Nominees are or were partners of Freehills.  It appears from various documents which have been before the Court in other matters, to which the appellants draw attention, that Muirwil Nominees is or was a company which was trustee of a superannuation fund associated with Freehills.

3. It is alleged by the appellants that because of the association between Freehills and Muirwil Nominees, and because of the interest which members of that firm had in the superannuation fund, Freehills have concealed evidence and deliberately delayed proceedings.  As we understand it, that association is advanced in order to explain what the appellants see as a deliberate campaign of obstruction against them.

4. In addition, some of the various proceedings between the appellants and the respondent, and other proceedings arising out of that dispute between the appellants and others, have been heard by Judges of this Court who were former partners of Freehills or its predecessor firm, Muir Williams Nicholson.  Those Judges are the former Chief Justice Malcolm and former Justices White and Anderson.  As we understand it, no submission of that kind is made about a Judge who is currently a member of this Court.  As we understand it also, the appellants are particularly concerned with the role of Malcolm CJ because Heenan J placed reliance upon, inter alia, an earlier decision of Malcolm CJ in one of these various proceedings, in order to arrive at the conclusion that the appellants were vexatious litigants.

The appellants' concerns

1. Against that background, the appellants make these submissions.  First, they submit that the allegations which they make against the former Chief Justice and other former Judges of this Court are very grave ones.  They submit that, because of the prominence of the name of Muirwil Nominees in various documents tendered in evidence in proceedings heard by those Judges, their Honours could not have been unaware of the connection which it is alleged Muirwil Nominees, and therefore those Judges, had with Milne Feeds.  The allegation, in effect, is that those Judges sat, knowing that they had an interest in the subject‑matter of the proceedings, since it was in the interests of Muirwil Nominees to uphold the validity of the sale to Milne Feeds, and without disclosing that interest to the appellants.

2. It is then submitted that because of the grave nature of those allegations, no currently sitting Judge of this Court can bring an unbiased mind to the appeal.  That is the basis of the application in relation to the coram from out of Western Australia.

3. So far as Freehills are concerned, there are, as we understand it, two elements to the concerns of the appellants.  One is that Freehills should be restrained from acting because there may be a conflict between that firm's duty to the Court as solicitors and its interest in maintaining whatever interest the firm or members of the firm may have in Milne Feeds through Muirwil Nominees.  The second and more pragmatic concern is that there is a potential for the hearing of the appeal to be delayed if, following allegations which the appellants contemplate they may raise during the course of that appeal concerning misconduct against the firm or various members of it, Freehills may find itself in a position where it is embarrassed and seeks an adjournment in order to instruct independent solicitors in respect of certain of those allegations.

The interstate coram

1. There are two competing considerations to bear in mind in relation to this application.  The first is that it is in the nature of the appellate process that allegations will from time to time be made about Judges which are thought to reflect adversely on the character or the professionalism of those Judges.  There will be allegations of inexcusable delay, of serious errors in reasoning, and of bias, either apparent or actual, for example.  In the case of superior courts such as this Court, those allegations will, on occasion (depending upon the precise structure of the appellate court) be made about Judges who are well‑known to, and who are or have been colleagues of, the Judges hearing the appeal.  It is assumed that those Judges hearing the appeal are capable of dealing impartially with allegations of that kind.  The appellate process could not function if it were otherwise.  Further, it appears to us that the experience in this Court has been that appellate courts have, on occasion, been prepared to make findings which are critical of Judges who are their current colleagues.  We mentioned one example to Mr Bride during the course of the hearing of this application.

2. However, it must also be recognised that there is a natural human tendency to wish to avoid injury, where possible, to persons who are one's colleagues, or whom one respects.  There will be circumstances in which the possibility of a tendency of that kind influencing the outcome of proceedings or, more usually, being perceived as potentially influencing the outcome of proceedings, is such that it is desirable to ensure that a matter is heard by a coram constituted in an unusual way, and perhaps even by a coram constituted entirely of Judges who are not usually members of the particular Court.  That was the course taken, for example, by the Court of Appeal of New South Wales in Heydon v NRMA Ltd (2000) 51 NSWLR 1, in relation to an allegation that a Judge of that Court had, when counsel, been professionally negligent.

3. In the present case, it seems to us that there is no basis for a reasonable apprehension that Judges of this Court hearing the appeal from Heenan J will not bring an impartial and unprejudiced mind to the resolution of the appeal.  There are a number of reasons for that conclusion.  All those Judges against whom the appellants seek to make allegations of bias have retired from this Court.  The allegations which the appellants seek to make are not directly in issue in the appeal which, as we have noted, is an appeal from a determination that the appellants are vexatious litigants.  It may be, during the course of the hearing of the appeal, that the appellants might wish to assert that some of the earlier proceedings which were decided adversely to them were decided in that way because of some bias affecting the mind of the Judges deciding them, but, by no means all of the earlier decisions adverse to the appellants were made by Malcolm CJ, White or Anderson JJ.

4. It is the case that the decision of Heenan J has, as one of its effects, the prevention of the hearing of other appeals which the appellants had on foot, in which as we understand it, allegations were more directly made against those former Judges.  However, that is a very tenuous and indirect connection with the present appeal.

5. Finally, notwithstanding the personal belief of the appellants that the Muirwil connection, and therefore the reason for disqualification of those Judges, would have been abundantly clear to them at the time, it seems to us that a conclusion of that kind could only be drawn after a very detailed examination of the relevant documents and of the chronology in each of those proceedings, a task which could not conceivably be relevant to the determination of the present appeal.  At most, the Court hearing this appeal might be concerned with the question of whether there was any reason to believe that it might have been inappropriate for one or more of those Judges to have determined a matter, without being at all concerned with the state of the relevant Judge's knowledge at the time.  Even that seems to us to be an unlikely issue, but we are prepared, for present purposes, to assume that it may arise.

6. For those reasons, it is our view that, even assuming that the "Muirwil connection" asserted by the appellants exists, it would not be necessary for a coram consisting of Judges other than the existing Judges of this Court to hear the appeal.  However, for reasons which we now explore, there is also a factual difficulty with the proposition underlying the whole of the appellants' present application.

Muirwil Nominees

1. Allegations of some form of inappropriate connection between Freehills and/or certain Judges of this Court, through Muirwil Nominees, have been a feature of many of the proceedings brought by the appellants.  There have always, so far as we can tell, been evidentiary difficulties with those allegations.  Since the appellants act for themselves, it is not to be expected that they would have a detailed understanding of the rules of evidence.  Notwithstanding that Mr Bride has appeared for the appellants on many occasions, and has over time become familiar with a number of rules of evidence and procedure, it is, we think, fair to suggest that he does not have that understanding which would follow from a systematic study of the rules of evidence of the kind undertaken, for example, in the usual law school course.  In particular, as revealed in this application, it appears that it is not clear to the appellants that documents which are in evidence in one proceeding do not automatically become evidence in another proceeding, and that documents which appear to be copies of official documents do not thereby automatically become admissible, without appropriate verification.  There are also, in this proceeding, hearsay difficulties with some of the materials.

2. It therefore appears to us that it would be correct to say that there has not, in any proceeding which has been brought to our attention, been clear admissible evidence of any connection between any Judges of this Court, or the firm of Freehills, and Milne Feeds, through Muirwil Nominees, of a kind which would suggest that there was any interest by those Judges or by that firm in Milne Feeds.  There have, however, been a variety of documents produced by the appellants which, had they been proved in proper form, may have been capable of giving rise to a suspicion of some connection.  Certainly, the appellants' original suspicions have hardened by now into certainty.

3. The unsatisfactory state of the evidence in relation to Muirwil Nominees has repeatedly been a source of frustration, in numerous proceedings, to the appellants, to the judicial officers presiding over their applications, and to the respondent.  For that reason, at the hearing of this application, we suggested to the respondent that there must be admissible and clear evidence which showed what the true position was and that, although it was not for the respondent to satisfy any evidentiary onus, it might well be convenient for Freehills to adduce evidence as to the relationship between Muirwil Nominees, the relevant superannuation fund, and Milne Feeds, if any.  That was done.

4. By leave of the Court, the respondent filed an affidavit of John Robin Hayward, sworn 20 February 2007, which is to this effect.  Mr Hayward was a partner of Freehills and its predecessor firms from May 1969 until his retirement in June 2004.  He continues to be employed by Freehills as a consultant.  During the period 1973 until 2000, he was responsible for the administration of Muirwil Nominees.  That company acted as trustee of the MWN Superannuation Fund, and also as a bare trustee for clients of the firm.  In its capacity as bare trustee, it held, inter alia, real property and shares in companies.  In that capacity, it charged its clients normal and reasonable fees but, apart from those fees, received no financial benefit in relation to acting as trustee.  Its holding of shares in Anglo Australian Foods Ltd (a company with an interest in Milne Feeds) and in Milne Feeds, was as bare trustee on behalf of one of the firm's clients.  The MWN Superannuation Fund was a superannuation fund established for employees of the firm.  The firm's partners were not eligible to be members and, in particular, none of Malcolm CJ, Anderson or White JJ ever had any right or interest in that fund or received any distribution from it.  Further, neither the firm itself, Muirwil Nominees, nor the MWN Superannuation Fund has ever held any beneficial interest in or received on their own behalf any distributions, profits or dividends from any of Anglo Australian Holdings Ltd, Anglo Australian Foods Ltd, Camballin Farms Pty Ltd and Milne Feeds.

5. It was conceded by counsel who appeared before us at the hearing of these applications that one or more legal practitioners who were partners or employees of Freehills or its predecessors at various times may have had, in their personal capacities, interests in companies which in turn were owned by or had some association with companies which in turn had some interest in or association with Milne Feeds.  However, there is no evidence that any legal practitioner who had any interest of that kind on his or her own account had at any relevant time played any role in relation to any of the proceedings involving the affairs of the appellants.

6. It appears to us that there are two answers to the allegation of conflict of interest and duty so far as the firm of Freehills is concerned.  The first is, as counsel for the respondent pointed out to us at the hearing of this application, that there is no admissible evidence which clearly indicates any relevant interest on the part of that firm.  The second answer is that the affidavit of Mr Hayward now makes clear that there is no evidence because there is in fact no such relevant interest.  That is sufficient to dispose of this limb of the application.

7. There remains, however, a further concern of the appellants, which was mentioned by Roberts‑Smith JA during the course of his reasons in relation to the application that Freehills be restrained from acting.  It is that certain allegations of impropriety may be made by the appellants during the course of the proceedings which might embarrass that firm and which might therefore lead to a need to instruct other solicitors and hence to a potential for delay.  Assuming, but without needing to decide, that allegations of some impropriety may properly be made during the course of the appeal proceeding, we would indicate that the respondent is plainly on notice of that potential difficulty.  No application to adjourn the hearing of the appeal is likely to be entertained in those circumstances, if allegations are made which properly arise out of the existing notice of appeal.

Leave to bring the applications

1. There is one final matter with which it is important to deal.  The orders made by Heenan J declaring the appellants vexatious litigants prohibit them from instituting any action, proceeding, appeal or other application in any court in Western Australia against the respondent, without the leave of the Court.  The appellants have leave to appeal the decision of Heenan J, that application for leave having been unopposed by the respondent.  However, there was no leave either sought or given for the bringing of the interlocutory application in the appeal, which the appellants brought before Roberts‑Smith JA.  Nor has there been any leave formally sought or given to review Roberts‑Smith JA's decision in that interlocutory application.  When that was brought to Mr Bride's attention at the hearing before us, he did not appear to be entirely convinced that such leave was required, but orally applied for it in case it should be necessary.  As we understood the respondent's attitude, the application was opposed, although the opposition was not vigorous.

2. It appears to us that the question of whether the appeal for which leave has been given, will be determined by a court which is able to bring an impartial and unprejudiced mind to the task, is a question of such fundamental importance to the appeal that leave should be granted, retrospectively, both for the application to Roberts‑Smith JA and for the application to us concerning his Honour's rulings.  It is, however, in the interests of all parties that the appeal itself should now be determined expeditiously.

3. The orders which we make will therefore include the following:

   1.Leave is granted to the appellants to bring the interlocutory applications in this appeal the subject of the appellants' "minute of proposed orders" dated 29 June 2006, and heard before Roberts‑Smith JA on 28 July 2006.

   2.Leave is granted to the appellants to apply to review the orders of Roberts‑Smith JA made on 28 July 2006.

   3.The application in respect of the orders of Roberts‑Smith JA dated 28 July 2006 is dismissed.

4. We will hear the parties in relation to the making of any orders which may be necessary in order to programme this appeal for hearing, and in relation to questions of costs.  We propose to make an advance copy of this decision available to the parties at 9 am on the day prior to the date fixed for delivery of judgment, and we would expect the appellants and the respondent each to have available, at delivery of judgment, minutes of any programming orders which they seek.