Bride v Commonwealth Bank of Australia [No 2]
[2007] WASCA 225
•26 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRIDE -v- COMMONWEALTH BANK OF AUSTRALIA [No 2] [2007] WASCA 225
CORAM: WHEELER JA
MILLER JA
HEARD: 18 SEPTEMBER 2007
DELIVERED : 26 OCTOBER 2007
FILE NO/S: CACV 32 of 2005
BETWEEN: EDWARD JAMES BRIDE
First Appellant
WENDY MARGARET BRIDE
Second AppellantEDWARD JAMES BRIDE AND WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERNYING FAMILY TRUST
Third AppellantsAND
COMMONWEALTH BANK OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :COMMONWEALTH BANK OF AUSTRALIA -v- BRIDE & ORS [2004] WASC 177
File No :CIV 1576 of 2002
Catchwords:
Vexatious litigants - Vexatious Proceedings Restriction Act 2002 (WA) - Appeal - Order staying proceedings in two appeals; one action in the Supreme Court and one action in the District Court - Order prohibiting appellants from instituting any action, proceeding, appeal or other application in any court in Western Australia against the respondent and others in respect of any claim or matter arising from enforcement of securities - Whether proper exercise of discretion by trial judge - Whether delay in judgment occasioned a miscarriage of justice - Whether certain findings of trial judge in error - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(5)
Vexatious Proceedings Restriction Act 2002 (WA), s 3, s 4(2)(c)
Result:
Appeal 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 & Mr A Golem
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):
Bride v Commonwealth Bank of Australia [2007] WASCA 91
Bride v Southern Rolled Oat [sic Oats] Pty Ltd (1999) 18 Leg Rep SL2a
Bride v Southern Rolled Oats Pty Ltd (Unreported, WASCA (Pidgeon, Franklyn & Walsh JJ); Library No 960564; 18 September 1996)
Cobham v Frett [2001] 1 WLR 1775
Commonwealth Bank of Australia v Bride [2004] WASC 177
Goose v Wilson Sandford & Co (Unreported, England and Wales Court of Appeal (Civil Division), 13 February 1998)
Granich Partners v Yap [2003] WASC 206
Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996)
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Southern Rolled Oats Pty Ltd v Bride (Unreported, WASC, Library No 7552, 9 March 1989)
JUDGMENT OF THE COURT: By summons dated 14 October 2002, the respondent sought leave pursuant to s 4(2)(c) of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) to restrict the appellants in relation to proceedings which they had already instituted in this and other courts, and to prohibit them from instituting proceedings in any court in Western Australia without leave of this court. The orders sought in the summons were in the following terms:
1The plaintiff do have leave to bring this application.
2All proceedings to which the defendants are a party, either personally or in their capacities as trustees of the Pinwernying Family Trust, presently before this Honourable Court, the District Court of Western Australia and any other court be permanently stayed.
3The defendants, both personally and in their capacities as trustees of the Pinwernying Family Trust, be prohibited from instituting proceedings in any Court in Western Australia without the leave of this Honourable Court.
4Such other orders as the Court sees fit.
The Act
Section 4 of the Act is in the following terms:
(1)If a Court is satisfied that -
(a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b)it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders -
(c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d)an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
(2)An order under subsection (1) may be made by the Court on its own motion or on the application of -
(a)the Attorney General;
(b)the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or
(c)with the leave of the Court -
(i)a person against whom another person has instituted or conducted vexatious proceedings; or
(ii)a person who has a sufficient interest in the matter.
(3)The Court must not make an order under subsection (1) -
(a)staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or
(b)prohibiting a person from instituting proceedings, or proceedings of a particular class,
without hearing that person or giving that person an opportunity of being heard.
'[P]roceedings' and 'vexatious proceedings' are defined in s 3 of the Act in the following way:
'proceedings' includes -
(a)any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;
(b)any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c)an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;
'vexatious proceedings' means proceedings -
(a)which are an abuse of the process of a court or a tribunal;
(b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c)instituted or pursued without reasonable ground; or
(d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
The orders below
The summons of 14 October 2002 was heard by EM Heenan J between 25 and 28 March 2003. The appellants appeared at the hearing and argued their case through the first appellant, who appeared in person. Judgment was delivered on 17 August 2004 (Commonwealth Bank of Australia v Bride [2004] WASC 177). The orders made were (relevantly):
1The Plaintiff have leave to bring this application.
2The following proceedings to which the Defendants are a party, either personally or in their capacities as trustees of the Pinwernying Family Trust, presently before this Honourable Court and the District Court of Western Australia be and are hereby permanently stayed:
(a)Supreme Court of Western Australia FUL 104 of 2000;
(b)Supreme Court of Western Australia FUL 3 of 2001;
(c)Supreme Court of Western Australia CIV 2454 of 2002; and
(d)District Court of Western Australia No 2297 of 2002.
3The Defendants and each of them be and are hereby prohibited from instituting any action, proceeding, appeal or other application in any Court in Western Australia against:
(a)the Plaintiff;
(b)Australian Bank Limited (ABL);
(c)the partners and employees of Peat Marwick Mitchell, KMG Hungerfords, KPMG and their successors in title;
(d)all subsequent purchasers of
(1)portion of Kojonup Location 255 and lot 30 on diagram 62969 and being the whole of the land in certificate of title volume 1322 folio 460 (Oatmill Land),
(2)portion of Kojonup Location 337 and lot 8 on plan 14220 and being the whole of the land in certificate of title volume 1654 folio 429 (Stockfeed Land);
(3)portion of Kojonup location 255 and lot 1 on diagram 9860 being the whole of the land in certificate of title volume 1322 folio 461 (Winery Land);
(4)Pinwernying lots 21, 22, 23, 37, 54 and 55 and Pinwernying lot 20 being the whole of the land in certificate of title volume 538 folio 6A (Vineyard Land); or
(5)portion of Katanning Agricultural Area Lot 70 and being the whole of the land in certificate of title volume 1333 folio 281 (104 Acres),
(together, Properties), or any portion of the Properties; and
(e)the legal, financial and real estate advisors and /or agents of any of the abovenamed parties,
in respect of any claim or matter arising from the enforcement by ABL of its securities registered over and charging in favour of ABL the Properties, under registered mortgage C337514 dated 26 March 1982, registered mortgage C646218 dated 27 June 1983, a Bill of Sale dated 24 August 1983, a Bill of Sale dated 24 March 1984, a deed of Guarantee and Indemnity dated 26 March 1982 or any other securities granted by the Defendants or any of them to ABL, prior to August 1984 (Securities), including, but not limited to, any claim in respect of the conduct of the receivers, managers or others in the enforcement of the Securities, the conduct and method of sale or realisation of the Properties and the title or other rights of the persons who acquired any of the Properties by purchase or subsequent transfer, which had ever been subject to the Securities.
Appeal
On 3 March 2005, Sanderson M granted the appellants leave to appeal the orders made by EM Heenan J. There were 18 grounds of appeal. No attempt was made by the master to have those grounds confined or restated. This was unfortunate, as the grounds are difficult to comprehend, repetitive and argumentative. Grounds 17 and 18 are not grounds at all, but constitute part of a chronology. There are therefore 16 grounds that need to be addressed. Some of the grounds were not pursued at the hearing of the appeal.
The appellants' submissions did not fully comply with the requirements of r 32(5) of the Supreme Court (Court of Appeal) Rules 2005 (WA). They:
(i)failed to contain for each ground of appeal the appellants' written submissions expressed clearly and succinctly (r 32(5)(a));
(ii)failed in relation to each ground to include references to each page number of the primary court's transcript on which relevant material appeared, the number of each exhibit that was relevant and the principal legal authority relied upon in support of each ground (r 32(5)(c)(i)(ii) and (iii)).
Even making allowances for the fact that the appellants appear in person, the submissions are in no way sufficient to enable the grounds of appeal to be properly understood. There are submissions in pars 7 ‑ 13 which seek to raise again before this court matters which were the subject of the judgment of Wheeler JA and Miller AJA in Bride v Commonwealth Bank of Australia [2007] WASCA 91. That was an application to review two orders of Roberts‑Smith JA which were interlocutory orders in this appeal. They were described in the judgment as follows:
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 [1].
To the extent that the appellants' submissions in this appeal again refer to those matters, they are raised illegitimately and will not be dealt with.
The judgment appealed from
The judgment of EM Heenan J is a comprehensive document. Detailed and lengthy reasons are given for the conclusions reached by his Honour. They are structured under a number of headings which can be summarised as follows:
(1)the present actions before the Court of Appeal, Supreme Court and District Court;
(2)the background to the litigation in those courts, including detailed consideration of the various actions that have proceeded in the Supreme Court;
(3)details of the land holdings of the appellants which feature in the litigation;
(4)details of the businesses conducted by the appellants;
(5)the securities of the banks;
(6)the bankruptcies of the appellants and a consequential deed of compromise and its legal effect;
(7)the significance of issues determined in earlier litigation and an analysis of the appeals in the Court of Appeal and proceedings in the Supreme and District Courts; and
(8)the relevant provisions of the Act and their application to the present case.
What follows is a selective summary of aspects of EM Heenan J's judgment. That judgment needs to be read in full in conjunction with these reasons. We will use the term 'the appellants' to describe one or more of the appellants and sometimes to refer to Mr Bride or 'the Brides' where it is necessary to do so.
The background
The appellants owned either before or after 8 August 1984 six separate parcels of land in the Katanning region. By 8 August 1984, they had borrowed heavily against the security of their land holdings. Their secured creditor was Australian Bank Ltd (described by EM Heenan J as 'ABL' or 'the bank'). This bank has since been acquired by the respondent. It has taken over control of ABL and assumed all of its liabilities.
On 8 August 1984, the appellants were indebted to the bank in a sum exceeding $3.5 million. That day Mr Bride was served by the bank with notices demanding repayment of that sum. The appellants defaulted on repayment and receivers and managers were appointed. Various properties both real and personal were sold. These had been mortgaged or charged to secure the indebtedness to the bank. The bank recouped approximately $1.7 million of its debt. The appellants were bankrupted (on two occasions) and unsecured creditors were unable to recover anything.
The appellants have, since 1984, commenced over 60 actions or proceedings. They have sought all manner of relief, described by EM Heenan J in the following terms:
These have sought various relief challenging the validity and efficacy of the actions of the principal creditor; the appointment of the receivers and managers; the validity and conclusiveness of sales of properties under the securities to third parties; asserting proprietary claims against lands sold under mortgages to third parties who have since become registered as proprietors of estates in fee simple in those lands; and claiming damages for alleged breach of duty, negligence or fraud against the principal creditor, the receivers and managers and others involved in the actions taken to enforce the securities [1].
The outcome of the litigation was summarised by EM Heenan J in the following terms:
Although the Brides have sought to recover damages against ABL and others claiming $1.99 million for the loss of land, buildings and plant, and a further $3.69 million for alleged loss of profits, together with many proprietary claims over their former lands, the only successes which they have achieved are two small claims. In an action against ABL, the receivers and managers and others, heard in this Court before Parker J they were awarded an amount of $500 damages for trespass against the receivers and managers alone to that land. The second success was that sequestration orders made against them in November 1990 were set aside by the Full Court of the Federal Court of Australia in August 1991. Those were orders which had been made after they had each been discharged from their first bankruptcies but they were both later made bankrupt again in November 1997 [3].
His Honour added:
In the many actions and proceedings which have been heard and determined since 1984 involving the Brides, ABL and others associated with the enforcement of the secured claims and with the sale of the charged properties there have been many instances when issues of either fact or law or both which had been determined conclusively in earlier litigation, have been raised again by the Brides so as to amount to a collateral attack on the earlier determinations. On this basis many of the Brides' subsequent claims have been stayed, or dismissed because of their attempts to re‑litigate concluded issues. Notwithstanding this, their attempts to determine those issues differently in subsequent proceedings have been repeated. Other claims by the Brides against various defendants have been dismissed on the merits after full hearings but, as this application has revealed, the Brides have then attempted to bring the same or similar claims against different defendants or on a slightly different basis only to fail again [4].
EM Heenan J noted at [15] that detailed historical accounts of the litigation and the outcome of that litigation are contained in a succession of reported judgments between 1989 and 2000. EM Heenan J also set out in considerable detail at [15] et seq the matters which were then current in the Court of Appeal, Supreme Court and District Court.
Issues determined in earlier litigation and their relevance to current proceedings
EM Heenan J noted at [73] that counsel for the plaintiff submitted that earlier decisions had resulted in conclusive and binding determinations adverse to the appellants on issues which they were still seeking to advance by way of current litigation. It was submitted that they were attempting to advance claims which were res judicata or the subject of issue estoppel. They were thus said to be a collateral attack upon earlier decisions which bound them, so that the current proceedings were consequently vexatious and an abuse of the process of the court.
EM Heenan J found that whether or not the appellants should be declared to be vexatious litigants could not be determined solely by ascertaining whether the doctrines of res judicata or issue estoppel prevented them from prosecuting the causes of actions or issues in context in the current proceedings. His Honour said:
This is because the definition of 'vexatious proceedings' in s 3 of the Vexatious Proceedings Restriction Act is not confined to proceedings which constitute an abuse of the process of a court but extends to proceedings 'instituted or pursued without reasonable ground'; or which are 'conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose', or which are 'instituted to harass or annoy, to cause delay or detriment or for any other wrongful purpose'. Hence, the questions in issue in the present proceedings are wider than whether or not the doctrines of res judicata or issue estoppel apply. If those doctrines do not apply, but the proceedings can be regarded as having been instituted or pursued without reasonable ground that is sufficient for a declaration under the Act to be made. This means that a closer examination of the issues arising in the pending litigation being pursued by the Brides must be undertaken [75].
Examination of pending litigation
EM Heenan J reviewed at [76] ‑ [90] the four proceedings which were then current. They were the two proceedings before the Court of Appeal, one in the Supreme Court and one in the District Court.
Supreme Court proceedings FUL 3 of 2001 - Appeal from Parker J in CIV 1570 of 1989 and CIV 1804 of 1989
This was the one and only action in this court in which the appellants had a measure of success. In an action against Peat Marwick Mitchell they recovered damages of $500 for trespass.
EM Heenan J at [78] summarised the conclusions reached by Parker J in CIV 1570 of 1989 and CIV 1804 of 1989. They included conclusions that:
(a)receivers and managers Young and Anderson were validly appointed under two bills of sale on 9 August 1984 (conclusion (d));
(b)there was no fraud or deceit in the service of the premature notices of appointment by the receivers and managers under the two mortgages which had been effected on 9 August 1984 (conclusion (e));
(c)ensuing trespass to land known as the 'Oat Mill land' was trespass by the receivers and managers and not by ABL - and trespass which caused no loss of land or any other losses to the appellants (conclusion (f));
(d)Young and Anderson acted as receivers and managers in good faith and without negligence (conclusion (h));
(e)causes of action by the appellants in their capacity as trustees seeking to recover damages and other relief for loss of business had been advanced previously in other proceedings and, having then failed, the repetition of substantially the same claim amounted to an abuse of process (conclusion (j)).
Supreme Court proceedings FUL 3 of 2001 - Appeal from Chapman AM in CIV 1090 of 2000
This action was commenced by the appellants after trial of the Parker J actions, but before decision was delivered by Parker J 'in order to prevent the expiration of any limitation period applying to the causes of action in fraud which the Brides wished to advance by [a] proposed amendment which Parker J refused in the course of the trial' [80].
The issues to be raised in the appeals
EM Heenan J gave careful consideration to the matters sought to be ventilated by the appellants in the appeals. There was a lengthy analysis of (a) the contentions of fraud (in respect of which some 45 different decisions involving the appellants and others contained allegations of fraud); (b) the question of the proper appointment of receivers and managers on 22 August 1984 pursuant to mortgage C337514; (c) the conduct of parties involved in the enforcement of ABL's securities after 1984; and (d) the persistence by Mr Bride in lodging caveats over certain lands (which constituted a wrongful attempt to challenge without any reasonable cause earlier decisions of the court bearing on the indefeasibility of title acquired by the company Southern Rolled Oats Pty Ltd). All were found to have amounted to an abuse of process of the court and to have been vexatious proceedings. The appeals were considered to be without merit and bound to fail.
EM Heenan J expressed the following view about the appellants' beliefs:
I appreciate that proceedings by appeal may also be vexatious if they were instituted in order to, or are conducted in a manner so as to, harass or annoy, cause delay or detriment, or for any other wrongful purpose. In this respect, however, it is my conclusion that whatever maybe their other shortcomings or defects, the two appeals which the Brides have instituted have been brought in a conscientious belief by Mr and Mrs Bride, that they have suffered legal wrongs and that they may, by their appeals, obtain remedies to which they believe they are entitled at law. That, in many respects this belief may be baseless and wrong‑headed and that many of the steps which they have taken in the proceedings may be maladroit, does not diminish Mr Bride's belief in his entitlement to ultimate legal relief. In my view, and with respect, Mr and Mrs Bride are seriously mistaken in the views and conclusions which they have formed about the legal significance of what has occurred in the past but I am unable to conclude that their actions in instituting these appeals were prompted by an intention to harass or annoy, to cause delay or detriment or for any other wrongful purpose. That they have been pursued in a sincere belief by the Brides that they have an entitlement to relief at law may be a very serious and grave mistake, but I do not regard it as amounting to intentional bad faith which, in my opinion, is one of the criteria of 'vexatious proceedings' in s 3 of the Act [105].
District Court action 2297 of 2002 - Shire of Katanning proceedings
This was an action brought by the appellants in order to seek a determination that the bank as mortgagee in possession (and not the appellants) was responsible to the Shire of Katanning for outstanding rates raised against the property. EM Heenan J concluded that the action was destined to fail:
This seems to be an action destined to fail because of the provisions of the Local Government Act 1995 (s 6.44; s 1.4) and the Land Tax Assessment Act 1976 (s 15 and s 5(1)) which impose the liability for rates and taxes upon the owner of the property. However, in the course of submissions it emerged that the real purpose for the Brides initiating this action was to renew allegations against ABL, Peat Marwick Mitchell, Stewart, Young and Anderson that the securities held by ABL over the Winery land and its business assets, plant and equipment and stock were not valid and that the receivers and managers had acted unlawfully in taking possession of the property and in selling the plant, equipment and stock.
This collateral purpose, acknowledged by Mr Bride in submissions, is sufficient in itself to conclude that the action is vexatious having been instituted and conducted to achieve a collateral and, therefore, wrongful purpose [84] ‑ [85].
Supreme Court action CIV 2545 of 2002 - the Fulford proceedings
This was an action brought by the appellants in their personal capacities against George Arthur Fulford and Patricia Fulford to stop them dealing with certain land described as 'the Fulford land'. It was land that had been sold by ABL pursuant to its powers following default under a mortgage. Mr and Mrs Fulford obtained a registered title as proprietors of an estate in fee simple at the mortgagee sale. EM Heenan J concluded in relation to these proceedings:
The first, and fatal, objection to the prosecution of this originating summons by the Brides is that it relates to an asset which they previously owned legally and beneficially so that any interest or claim which they may ever have had in respect of the land, whether following the mortgagee's sale or otherwise, became vested in their trustee in bankruptcy in 1984 and cannot be enforced by them. This is enough to show that these proceedings have no prospects of success whatever [88].
Other conclusions reached by his Honour against the interests of the appellants need not be adverted to, but are to be found at [89] and [90] of the judgment.
Application of the provisions of the Act
EM Heenan J traced the history and effect of the Act at [130] et seq. His Honour made reference to his own judgment in Granich Partners v Yap [2003] WASC 206 where, at [25] and elsewhere, much of that history was recounted. Conclusions reached by the learned judge were as follows:
(a)'Proceedings will be vexatious by an objective standard, if they constitute an abuse of process of the court or are brought or pursued without reasonabl[e] ground or they are conducted in the manner set out in sub‑par (d) of the definition' [131];
(b)'[T]he court will only consider the exercise of this jurisdiction if it is satisfied that there are substantial grounds for doing so and there is sufficient reason to embark on an enquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the court. It is this public character of the mischief or prejudice which can be caused by vexatious proceedings which the evident policy of the legislation is to prevent' [131];
(c)'It is necessary to appreciate that the restriction of a citizen's rights to bring or pursue litigation is a serious interference with an important civil right which should only be contemplated in special or unusual circumstances' [131].
Applying those principles to the litigation in which the appellants were involved, EM Heenan J reached the following conclusions about the different proceedings:
Pending appeals to the Full Court ([sic Court of Appeal])
In my view special care and restraint should be exercised by the court in relation to any application under the Act which would have the effect of staying or prohibiting the institution of an appeal, such as the two appeals which are pending in this case. The institution of an appeal from a final decision of a court is unquestionably a most important right available to any litigant. The conferral by Parliament of rights of appeal in relation to final decisions, as opposed to allowing appeals only by leave of the court, is a recognition that, at least in most cases, one unrestricted right of appeal to the highest court of the State, is an important and necessary component in the administration of justice. There may be many appeals which only have poor or weak prospects of success yet the satisfaction of the public interest, the need for the community at large to be reassured by the knowledge that important decisions of courts are, generally, subject to review on appeal, are factors which show that it is most important that the right of appeal should not be lightly eroded or restricted by any means [134].
...
For reasons which I have already given I am satisfied that, to a very large degree, the two pending appeals brought by Mr and Mrs Bride to the Full Court are vexatious because they involve the abuse of the process of the court in attempting to recontest issues which have finally been concluded against them in other litigation to which the respondents to those appeals or their privies were parties [136].
Pending litigation relating to the Shire of Katanning and the Fulford proceedings.
With those tests in mind, I have already concluded that Mr and Mrs Bride have instituted and conducted vexatious proceedings in the past and that the originating summons (CIV 2545 of 2002), issued in relation to the Pulford [sic Fulford] land - the 104 acres - is plainly vexatious and so is the District Court action No 2297 of 2002 brought by the Brides against the Shire of Katanning and others, notwithstanding that that has since been dismissed by order of a Registrar [133].
Conclusion on application of provisions of the Act to all proceedings
The ultimate conclusion reached by his Honour was expressed in the following terms:
While I have concluded that neither Mr and Mrs Bride has acted from any malicious or dishonest motive but rather has conscientiously attempted to obtain relief because of their belief that they have been wronged, I have no doubt that they are misguided and mistaken in their expectation that, their causes having been examined and decided by the courts, there is any further prospect of success in pursuing their claims.
Having regard to the apparent inability of Mr Bride to accept that his bankruptcies put an end to claims arising from any losses to the business operations or from the sale of business assets; that the sales of the secured properties by the mortgagee mean that the purchasers from the mortgagee and their subsequent transferees have achieved a good title to the Brides' former property; and the absence of any basis to allege fraud against the bank or others associated in the realisation of the securities, I consider that there is a real risk that, if not restrained, the defendants will seek in some way or another to advance their claims by further litigation in circumstances where there is no reason to anticipate that any arguable cause of action remains or could be shown. This risk, together with the conduct of the two sets of current proceedings which I have held to be vexatious, reinforced by the history of repeated proceedings concerning the lodgement of caveats against the title to lands which had been sold, means that there is a significant public interest in ensuring that the resources of the courts are not unnecessarily occupied by the repeated examination of claims which have been closely examined and decided in the past.
Accordingly, I consider that not only should an order be made staying all the four proceedings (the two appeals and the two actions) still pending against all the respondents or defendants named in them but that there should be an order under s 4(1)(d) prohibiting the defendants or either of them from instituting any action, proceeding, appeal or other application in any court in Western Australia in respect of any claim or matter seeking relief in respect of any matter arising from the enforcement by ABL of its securities over the Bride properties, under mortgages C337514 and/or 646218, or the bills of sale or any other securities granted by the Brides to the ABL following the defaults of the Brides under those securities in August 1984. This prohibition should extend to claims made in respect of the conduct of receivers, managers or others in the enforcement of those securities, to the conduct and method of the sale or realisation of the property the subject of the securities, and in respect of the title or other rights of the persons who acquired property by purchase or subsequent transfer which had ever been subject to those securities [140] ‑ [142].
Grounds of appeal
There is much to be said for the respondent's written submissions which contend that the appellants' grounds of appeal 'are numerous, not clearly formulated or numbered and in the majority of instances, do not constitute a comprehendible ground of appeal'. Nevertheless, the 16 grounds of appeal which form part of the appellants' notice dated 22 March 2005 and which are essentially repeated in the appellants' case dated 28 December 2005, have to be addressed. We will deal with the grounds of appeal as formulated in the notice of appeal.
Ground 1
This ground makes reference to the delivery of judgment 17 months after the hearing. To the extent that it does, it will be dealt with under ground 2. The ground otherwise challenges the failure of the learned trial judge to deal with or address certain 'matters His Honor [sic] raised and or questioned the respondents'.
EM Heenan J was not obliged in the judgment to deal with each and every matter which was the subject of discussion during the course of the hearing below. It is apparent from the particulars to the ground that his Honour questioned on occasion some of the consequences of any decision that he might reach. That did not require a determination of that issue.
Particular (a): the deed of compromise and release
This particular suggests that the learned trial judge should have determined whether or not to set aside the deed of compromise and release dated 19 August 1986 'on the evidence of Fraud now before the Court'. All that needs to be said about this particular is that in a proceeding brought pursuant to s 4 of the Act, it was not open to the learned trial judge to set aside the deed of compromise and release.
The learned trial judge did deal with the deed of compromise dated 19 August 1986. His Honour regarded it as a significant document for these reasons:
For present purposes this deed of compromise is significant because, it is accepted by the Brides, and it is the submission of the plaintiff, the Commonwealth Bank, that these discharges granted by the Brides' trustees in bankruptcy effectively release and discharge ABL and the receivers from any form of liability which they may have had, but for the deed, arising from the appointment of the receivers and managers under the various securities, their conduct in the course of the receivership and the conduct of the bank in selling the mortgaged property under the mortgages. No question arises about the authority of the trustees in bankruptcy to enter into such a deed and, in this respect, the deed itself recites that the trustees have the authority of the creditors of the joint and separate estate of Mr and Mrs Bride under s 110 of the Bankruptcy Act to compromise the disputes as so recorded [56].
EM Heenan J thus concluded that no question arose about the validity of the deed. Nor could it have done in proceedings under the Act. Particular (a) is not made out.
Particular (b): joinder of Milne Feeds Pty Ltd
The question whether Milne Feeds Pty Ltd should have been joined in the appeal from the decision of Parker J in CIV 1570 of 1989 and CIV 1804 of 1989 does not arise in these proceedings. It has no relevance and there is no substance in the complaint. Particular (b) is not made out.
Particular (c): staying and/or overturning orders of the Full Court on 19 September 2001 in appeal FUL 3 of 2001
This particular is misconceived. The appellants contend that the Full Court (Wallwork and Wheeler JJ, Einfeld AJ), when sitting on 19 September 2001 in FUL 3 of 2001, ordered that the appeal in FUL 3 of 2001 and the appeal in FUL 104 of 2000 should be heard (our emphasis). It is contended that EM Heenan J had no power to 'overturn' that order.
A proper reading of the transcript of proceedings on 19 September 2001 in FUL 3 of 2001 reveals that no order was made that the appeals should proceed to hearing. The order of the court was that the appeal listed for hearing that day (FUL 3 of 2001) should be adjourned and should be relisted to be heard at the same time as the appeal in FUL 104 of 2000. It was intended that they should both be argued at the same time before the same court. This is apparent from the observations of Wallwork J (ts 27):
[W]e order that Full Court 3 of 2001 and 104 of 2000 be listed to be heard before the same court on the same day. The question of the costs in this appeal so far be reserved.
The appellants have misconceived or misunderstood what was done on 19 September 2001 and there is no substance in particular (c).
Ground 2
This ground contends that EM Heenan J erred 'in both Natural Justice and Equity' in reserving judgment for an excessive period of time.
It is also complained within this ground that the motivation for the application under the Act was to 'Stay, Dismiss and or Delay' the appeals in FUL 104 of 2000 and FUL 3 of 2001. This latter contention is repeated in other grounds of appeal. The short answer to it is that the respondent was entitled (as EM Heenan J found) to institute proceedings under the Act. It had the standing to do so and it was ultimately found to have been justified in doing so. To suggest that the proceedings were brought to stay, dismiss and/or delay the two appeals in question, is not to the point. Self‑evidently, proceedings under the Act are brought in order to prevent either the institution or the continuance of other legal proceedings. The relevant issue is whether, on all of the evidence, the orders made by EM Heenan J were a proper exercise of discretion under the Act.
To the extent that the ground contains an alternative, namely that the application under the Act was 'yet another attempt to "Dismiss" appeal FUL 3 of 2001, being an application already heard and determined by the Full Court on the 19th September 2001', that ground likewise has no substance. The proceedings on 19 September 2001 were not an application to dismiss appeal FUL 3 of 2001. The appeal was listed for hearing before the court on that day.
This leaves only the question of the delay in delivery of the judgment below. It was heard between 25 ‑ 28 March 2003 and delivered on 17 August 2004. There were approximately 17 months' delay in the delivery of judgment.
Reliance was placed by the appellants on the judgment of the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273. There, the delay between the hearing and judgment was almost two years and three months. The court (Steytler, Templeman and Simmonds JJ) made the following observations:
Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998). Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve [30].
The court found it unnecessary to decide whether on this ground alone the appeal should have been allowed, but said that had it been necessary to decide it on that ground, it would probably have done so: [40].
Numerous cases were relied on by the Full Court in Mount Lawley to show that a long delay between the hearing of a case and delivery of judgment can give rise to disquiet and justifiable complaint by litigants that they have been either deprived of justice far too long (where they win) or suspicion (where they lose). A delay of over 20 months was said in Goose v Wilson Sandford & Co (unreported, England and Wales Court of Appeal (Civil Division), Gibson, Brooke, Mummery LLJ,13 February 1998) to be a delay that 'will not be tolerated'. The court there added that 'a situation like this must never occur again' [112].
The general trend of authority is to the effect that a delay of 12 months or more is excessive and likely to result in prejudice to a losing party. Nevertheless, in Cobham v Frett [2001] 1 WLR 1775, the Privy Council said:
It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party (1783).
When that test is applied to the present case, it is apparent first that this was a case in which a very extensive amount of research and deliberation was required on the part of the trial judge to analyse the history of the Bride litigation and its consequences for ongoing litigation. That research must have taken a great deal of time. The judgment itself is very lengthy and covers the Bride litigation extending over a period of approximately 20 years. Importantly, unlike Mount Lawley, this was not a case in which issues of credulity were involved. EM Heenan J was not concerned with the demeanour of the parties, but with the numerous documents he had to consider.
Another important point is that delay has not been shown to have caused any injustice to the appellants. Although there is a complaint that appeals FUL 104 of 2000 and FUL 3 of 2001 could not proceed whilst judgment was reserved, EM Heenan J reached the conclusion that neither of those appeals had any reasonable prospect of success. They attempted to recontest issues which had been finally concluded against the appellants in other litigation to which the respondents to those appeals or their privies were parties [136].
The appellants were not precluded during the period within which judgment was reserved from instituting any other proceedings had they wished. There was no interim stay on any litigation and there was no requirement to seek the leave of the court before commencing litigation. During the course of argument before this court, Mr Bride was unable to point to any prejudice that he may have sustained.
We recognise that the period of delay between the hearing and judgment was unacceptable, but on a careful consideration of the judgment, it cannot be said that there was any injustice to the losing party.
Ground 3
This ground contends that the appellants were denied natural justice because the learned trial judge should have been aware that the respondents in CIV 1570 of 1989 and CIV 1804 of 1989 had successfully applied to have the time for the trial of those actions extended from 10 to 30 days.
Consideration of an application to the Full Court to have the time for the trial of actions CIV 1570 of 1989 and CIV 1804 of 1989 extended had nothing whatever to do with the application with which the learned trial judge was dealing.
The complaint relates to the decision of Parker J to refuse leave to amend in the actions in question to include contentions of fraud. EM Heenan J concluded that the appeal from the refusal of Parker J to allow fraud to be pleaded with regard to the treatment of trust assets, had been instituted and pursued 'without any reasonable ground and without any prospect of success' [136].
The oral argument addressed by Mr Bride under this ground appeared to be restricted to a contention that counsel for the respondents had in relation to the two actions engaged in some form of sharp conduct with a discreditable motive. No basis for those assertions was demonstrated. The ground should be dismissed.
Ground 4
This ground raises again the question of what the Full Court determined on 19 September 2001 in FUL 3 of 2001. It is a repetition of ground 2 and does not need further consideration. It should be dismissed.
Ground 5
This ground contends that EM Heenan J was in error in determining that orders should be made under s 4 of the Act. It should be stressed that the orders made by EM Heenan J were not (contrary to the terminology contained in the ground) orders that 'the Brides [are] vexatious' but rather, that pursuant to s 4 of the Act, the court was satisfied that the appellants had instituted or conducted vexatious proceedings and were likely to institute or conduct vexatious proceedings in the future.
We have already quoted from [140] ‑ [141] where EM Heenan J concluded that the appellants had not acted maliciously or dishonestly but in a misguided and mistaken expectation that they had prospects of success in pursuing claims.
The contention in the ground of appeal that the appellants now have documented evidence of alleged fraud does not need to be dealt with. This is not a case in which there is any application to adduce fresh or new evidence in any proceeding. There is no substance in this ground. It should be dismissed.
Ground 6
This ground contends that EM Heenan J erred 'in fact' in determining that the matter of fraud was statute‑barred. Had his Honour made such a determination, it would not be a question of fact, but a question of law. However, EM Heenan J made no such finding, nor would he have had any reason to make such a finding in the proceedings before him.
At [46], EM Heenan J concluded that there was no evidence of fraud on the part of Young and Anderson, Peat Marwick Mitchell or ABL. At [104], his Honour concluded that there had been many instances of other allegations of fraud by the appellants made in respect of various parties which had failed or been rejected. No attempt was made in the judgment to address the question of the statute of limitations. Mr Bride was unable to point to anything in the judgment to this effect. The ground therefore has no substance.
There is an alternative contention in ground 6 which contends that the learned trial judge should have ordered that 'time ran' in relation to fraud from 20 October 1994. This, however, was not an issue. The ground should be dismissed.
Ground 7
This ground contends that EM Heenan J erred in determining and supporting the finding of Chapman AM that 'The Brides contended that the business had been owned by the Compa[n]ies'. That is not what EM Heenan J found. His Honour concluded:
[A]fter 1989, influenced by one of his advisors, Mr Bride came to the view that he had been mistaken in the past about who had conducted the businesses described. He became convinced, and Parker J held that he sincerely but mistakenly believed, that those businesses had been conducted by himself and his wife as trustees for the Pinwernying Family Trust. At one point it was contended by the Brides that the businesses had been conducted by the companies but that contention was short lived and it has been held in earlier proceedings, by Ipp J in Bride & Anor v Commissioner for Corporate Affairs (1989) 7 ACLC 1202 and by Murray J in Bride & Anor as Trustees for the Pinwernying Family Trust v KMG Hungerfords (1991) 109 FLR 256 that neither of the companies ever operated those businesses or acquired any lands or other assets. Parker J reached the same conclusions in the case which is now the subject of appeal FUL 104 of 2000 [32].
Mr Bride complains that he had never at any point contended that the businesses had been conducted by the companies. However, EM Heenan J made it clear that the issue was of no significance:
The issue whether or not the business was ever operated or owned by either of the companies has now disappeared and was not raised by Mr Bride in the present proceedings [33].
Any conclusion that EM Heenan J reached about a contention of the appellants that the companies conducted the businesses, therefore, played no part in the outcome of the proceedings.
For completeness, we mention that there was material before his Honour in the form of notes from a T Adams, apparently a representative of Peat Marwick Mitchell that somebody from 'Birds' (presumably CP Bird & Associates) had recounted that there were 'never any transactions in companies' (vol 8, green appeal book, page 1452). Whether and to what extent this note confirms Mr Bride's contention does not matter. The issue played no part in the decision below. The ground therefore has no substance.
There are other matters contained within particulars (a) ‑ (d) of ground 7. They contend that EM Heenan J:
A/.Should have found and determined that it was the Bank and Receivers Managers Who had falsely and with intent contended that the Companies owned the business.
B/.Should have found that the application by the Brides before Ipp J was to get the books, papers and records of the business that the Bank and Receivers Managers falsely pretended were company books, papers and records.
C/. Should have found that the Bank and Receivers Managers with intent falsely considered the documents were Company property until the affidavit evidence of D J Young of the Receivers Managers and J C Hancock of the Bank that were tendered as evidence before Ipp J.
D/. Should have found that this deliberate false and fraudulent pretence was in fact a Deliberate fraud on the Brides unsecured creditors and The Australian Tax Office.
These particulars hark back to constant attempts by the appellants to challenge the actions of the receivers and managers. They confirm the conclusion of EM Heenan J that the appellants are misguided and mistaken in their expectation that there is any further prospect of success in pursuing claims. These claims clearly seek to recontest issues which have been finally concluded against them in other litigation (EM Heenan J at [136]). The ground should be dismissed.
Ground 8
This ground was not addressed and does not need to be dealt with. It should be dismissed.
Ground 9
This ground is incomprehensible. It appears to raise again, either in the ground itself, or, in the alternative expressed below it, the proposition that the receivers and managers had not been lawfully appointed under the mortgages of 9 August 1984 and that any such appointment was a 'deliberate fraud'.
This, however, was not a matter for determination by EM Heenan J. The ground illustrates that the appellants are determined to make collateral challenges to issues determined conclusively against them in earlier litigation. The application under s 4 of the Act was not concerned in any way with a determination of the validity of the appointment of the receivers and managers. In any event, EM Heenan J concluded at [23] that in various proceedings the appellants had asserted that the receivers and managers appointed by the bank under different securities were not validly appointed. These contentions had failed in every case. There was no basis nor justification for EM Heenan J to reopen those issues.
To the extent that there has been a conclusion (by Parker J) that when receivers and managers took possession of the assets of the Bride business on 9 August 1984 they purported also to take possession and retain control of the 'Oat Mill land' beyond the exercise of their power of entry, that matter has already been determined. It was the one thing determined in favour of the appellants. EM Heenan J dealt with the matter in detail at [44] et seq and it is unnecessary to deal further with it. The ground should be dismissed.
Ground 10
This ground repeats ground 1(a) and has already been dealt with. It should be dismissed.
Ground 11
This ground contends that EM Heenan J erred in fact 'in that the prime objective of the Bank and Receivers Managers against the hearing of fraud before Parker J was a direct opposite of the argument before McKechnie and Wheeler JJ'. It adds that in argument before Parker J there was a 'sharp dishonest and unprofessional tactic' on the part of the respondent in these proceedings.
The reference to 'McKechnie and Wheeler JJ' is a reference to The Australian Bank Ltd v Bride, Southern Rolled Oats Pty Ltd & Milne Foods Pty Ltd (FUL 116 and 117 of 1999) 14 October 1999, where counsel for The Australian Bank argued that the master had been wrong to order that there should be a hearing on preliminary issues. Counsel stated that it could be anticipated that issues of fraud would come up during the hearing and would need to be dealt with. This was said by Mr Bride in this appeal to be in direct contradiction to the present respondent's submissions in relation to the issue of fraud in FUL 3 of 2001.
In answer to Wheeler JA during the hearing of the appeal, Mr Bride conceded that this was another attack upon the motivation of the applicant in the court below. As we have already indicated, it is an irrelevant matter. The ground should be dismissed.
Ground 12
This ground contends that EM Heenan J erred in fact 'in that Parker J never ruled upon or made findings in relation to the winery property or building'. The ground appears to relate to EM Heenan J's conclusion to the following effect:
The only potential significance, therefore, of the intended allegations of fraud is in respect of the Oat Mill land, the Winery land and the Vineyard land all sold by the bank pursuant to its powers under mortgage C337514 [100].
Mr Bride complains that 'the Winery land' should not have been included in this passage because the allegations of fraud did not relate to the Winery land.
If this is so, it makes no difference to the outcome of the application below. It is not surprising that EM Heenan J may have inadvertently made some minor errors of fact. The analysis of the history of the matters required such research that a minor error is unsurprising. If it is an error, it makes no difference to the outcome of the case. The ground should be dismissed.
Ground 13
This ground is concerned with the Fulford proceedings. The appellants contest the conclusions reached by EM Heenan J in that respect.
As we have previously pointed out, Mr and Mrs Fulford acquired the land comprised in certificate of title volume 1749 folio 52 at a mortgagee sale by ABL pursuant to its powers following default under mortgage C337514. They obtained a registered title as proprietors of an estate in fee simple. The appellants have persisted in claiming that they have a proprietary interest in that land. The conclusion reached by EM Heenan J about it was:
Plainly, the Brides cannot support any claim to a proprietary interest in this land either in their personal capacities or as trustees and these proceedings have no prosect [sic] of success. Having regard to the history of the lapse of earlier caveats, the dismissal of their claim by Franklyn J in October 1989 and the many decisions which have held that the Brides are not entitled to seek to enforce rights which passed to their trustee in bankruptcy, these are plainly proceedings instituted in an abuse of the process of the court, without reasonable ground, which have been instituted and conducted in a manner to cause delay or detriment to the Pulfords [sic] and for the wrongful purpose of preventing their unrestricted dealing in the land pending the Brides' attempts to challenge earlier binding judicial decisions by non‑curial means [90].
During the course of argument on this ground much attention was directed to the validity of the judgment of Malcolm CJ in Southern Rolled Oats Pty Ltd v Bride (Unreported, WASC, Library No 7552, 9 March 1989). In his reasons, EM Heenan J made reference to the determination by Malcolm CJ in that case that caveats lodged by Mr Bride in relation to the 'Oat Mill land' and the 'Stockfeed land' should be removed. EM Heenan J quoted the following passage from the judgment of the Chief Justice:
There is no evidence which suggests that in any other way was the plaintiff a party to any fraud leading to the registration of the transfers by which it became the registered proprietor of the Land, or indeed any conduct which constituted any form of legal or equitable fraud [110].
Southern Rolled Oats was an application under s 138 of the Transfer of Land Act 1893 (WA) for the removal of two caveats. In the course of the application, the appellants contended, inter alia, that there had been invalid foreclosure in relation to the land in question by ABL and fraudulent conduct by ABL and its agent. This led Malcolm CJ to consider the appointment by ABL or receivers and managers in consequence of default by the appellants under the mortgages and other securities held.
Malcolm CJ's conclusions were in the following terms:
By way of a summary of my conclusions I will deal with each of the grounds specified in the caveats upon which the first defendant claims an interest in the Land as 'Rightful Legal Owner'. As to the ground that there was an 'invalid foreclosure' by the Bank I do not consider that there is any foundation in the material before me to support that ground. The Bank made demand. There was a default. The Bank appointed receivers and managers and they took possession of the Land on the Bank's behalf. Any claim against the Bank for breach of an implied term that it would not exercise any of its rights or powers otherwise than in good faith or otherwise would not affect a bona fide purchaser for value without notice. I have rejected the contention that the appointment of more than one receiver and manager was invalid. As to the contention that there was a fraudulent conspiracy between the Bank and Stewart, while there may be a basis for an arguable case against Stewart along the lines I have mentioned, I do not consider that there is any foundation for the allegation that he was acting in combination with officers of the Bank in a conspiracy to defraud the first defendant and his wife of their assets. Statements are alleged to have been made by Bank officers which led the first defendant to believe that the Bank would not appoint receivers and managers. These might possibly form the basis of some claim against the Bank, but in the context of this case, that conduct could not be characterised as fraudulent. There is no foundation for the allegation that the Bank was a party to the alleged conspiracy … There is no foundation in the material before me for the allegation that Peat Marwick Mitchell or the receivers and managers were parties to any such conspiracy. It is of the utmost importance to bear in mind that the allegations made by the first defendant against Stewart, the Bank and its officers, Fitzgerald and Peat Marwick Mitchell and the receivers and managers are being made in proceedings to which none of them are parties and in which none of them have given any evidence. The comments I have made are necessary to assess those allegations in the context of the first defendant's further allegations that the plaintiff was a party to the alleged conspiracy or fraudulent conduct of those people. None of them has had the opportunity to respond to those allegations in these proceedings (29).
Malcolm CJ concluded (at 31) that there was no foundation for the allegation of fraud against the plaintiff in the action, no foundation for the suggestion that the plaintiff was a party to any conspiracy and no foundation for the suggestion that the plaintiff was guilty of any form of dishonest conduct. All allegations of fraud were found to be unsubstantiated by any credible or relevant evidence and the materials did not raise 'a vestige of an arguable case against the plaintiff' (33). The first defendant failed to show cause why the caveat should not be removed. He was unable to demonstrate that there was a triable issue against the plaintiff on any ground upon which it was sought to support the caveats.
The appellants now seek to contend that the judgment of Malcolm CJ was in error. This is not an occasion upon which to consider that question. It certainly was not an issue before EM Heenan J. In any event, Malcolm CJ's decision was approved in an appeal to the Full Court (Bride v Southern Rolled Oats Pty Ltd (Unreported, WASCA (Pidgeon, Franklyn & Walsh JJ); Library No 960564; 18 September 1996) and an application for special leave to appeal to the High Court of Australia from that decision was refused (Bride v Southern Rolled Oat [sic Oats] Pty Ltd (1999) 18 Leg Rep SL2a).
To the extent that Parker J concluded that the receivers and managers had mistakenly or prematurely taken possession of the Oat Mill land on 9 August 1984, that is a different issue. Parker J found that there was no evidence to support the contention that ABL was liable for any trespass. It made no difference to the validity of the appointment of receivers or managers under mortgage C337514 before 22 August 1984. These conclusions do not affect the judgment of Malcolm CJ in Southern Rolled Oats.
Ground 13 also includes a contention that EM Heenan J was unaware of the assignment by the appellants' trustee in bankruptcy, Mr Putnin, on 14 October 1991 of all rights of action the trustee may have or have had against the Fulfords. EM Heenan J found at [88], the land of which the Fulfords are registered proprietors was an asset previously owned legally and beneficially by the appellants and any interest which they may have had in respect of that land, whether following the mortgagee sale or otherwise, became vested in their trustee in bankruptcy in 1984 and cannot be enforced by them. His Honour had dealt, at [62] with the question of the alleged assignment, noting both that there was no evidence before him of such an assignment, and noting also that in other proceedings the question of an alleged assignment by Mr Putnin had been decided against the Brides. Those conclusions have not been shown to be erroneous. Further, the Brides were again made bankrupt in 1997 (see [61]), so that any rights of action assigned to the Brides in 1991 would have passed, in 1997, to the trustee in bankruptcy. This ground should be dismissed.
Ground 14
This ground has already been dealt with under ground 1(c). It should be dismissed.
Ground 15
This ground has already been dealt with under ground 13. It should be dismissed.
Ground 16
This ground repeats assertions that have been made in other grounds. These are the assertions that the application made by the respondents to EM Heenan J was made only for the purpose of delaying the hearings in appeals FUL 3 of 2001 and FUL 104 of 2000; that the application was an abuse of the process of the court because it had been 'ruled upon by The Full Court on the 19th September 2001' and that there was a deliberate attempt to conceal 'the argument of the documented fraud by the Bank and Receivers Managers'. All of these contentions have been dealt with in previous grounds. The ground should be dismissed.
Conclusion
The appellants have not in any real sense appealed to this court in relation to the fundamental question which EM Heenan J was required to consider. That was whether under s 4 of the Act the appellants had instituted or conducted vexatious proceedings (before or after commencement of the Act) or whether it was likely that the appellants would institute or conduct vexatious proceedings in the future.
EM Heenan J gave careful consideration to this question and we have already quoted passages in which his Honour recognised that it was a substantial step to take to deprive a litigant of rights of appeal and/or the right to continue litigation.
In our opinion, this appeal demonstrates that the appellants will not accept that all relevant issues in relation to their indebtedness on 8 August 1984 and its consequences have been firmly and finally resolved against them.
EM Heenan J found that the appellants were not motivated in any malicious or dishonest way, but conscientiously attempted to obtain relief because of a misguided and mistaken expectation that they could continue to pursue claims, notwithstanding the fact that all their causes of action have been examined and decided against them by various courts over the years.
In our opinion, this conclusion was very favourable towards the appellants. This appeal demonstrates to us that Murray J was correct when in Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996) he said:
It seems to me that the first defendant does not care to listen when the court tells him that he has not produced material capable of sustaining the inference of fraud and conspiracy upon which he relies. His suspicions having been aroused, he proceeds upon the basis that the so far undiscovered evidence to support his presently unfounded conclusion will come to light. His mind does not appear to be open to accept any point of view contrary to his own, but the court may not proceed upon that basis (16).
It is a big step to deprive a litigant of the right to pursue litigation in the courts, and particularly the right to pursue appeals against adverse findings. But, in our opinion, there has to be an end to what has been happening. The appellants have occupied the time and attention of the Supreme Court, other courts, the respondent to these proceedings and other parties over many years in relation to what have been basically the same causes of action. The same complaints have been formulated and reformulated time and again without regard to adverse conclusions reached by various courts. If ever there was a case when the provisions of s 4 of the Act were applicable, this is it. We would dismiss the appeal on all grounds.
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