Bride v Commonwealth Bank of Australia [No 3]

[2009] WASCA 129

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BRIDE -v- COMMONWEALTH BANK OF AUSTRALIA [No 3] [2009] WASCA 129

CORAM:   MARTIN CJ

WHEELER JA
MILLER JA

HEARD:   7 APRIL 2009

DELIVERED          :   27 JULY 2009

FILE NO/S:   CIV 1576 of 2002

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 (ACN 123123124)
Respondent

ON APPEAL FROM:

For File No              :  CIV 1576 of 2002

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :EM HEENAN J

Citation  :COMMONWEALTH BANK OF AUSTRALIA -v- BRIDE [No 2] [2008] WASC 245

File No  :CIV 1576 of 2002

Catchwords:

Vexatious proceedings - Appeal from application to rescind or vary orders staying existing proceedings - Issues determined by previous decisions - Turns on its own facts

Vexatious proceedings - Whether appeal against a refusal to rescind or vary an order staying existing proceedings is competent

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA), s 4, s 7

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

First Appellant               :     In person

Second Appellant          :     In person

Third Appellants            :     In person

Respondent:     No appearance

Solicitors:

First Appellant               :     In person

Second Appellant          :     In person

Third Appellants            :     In person

Respondent:     No appearance

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

Bride v Australian Bank Ltd [2000] WASC 116

Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225

Bride v Commonwealth of Australia [2008] HCASL 446

Bride v Shire of Katanning [2007] WADC 116

Bride v Shire of Katanning [2008] WASC 131

Commonwealth Bank of Australia v Bride [2004] WASC 177

Commonwealth Bank of Australia v Bride [No 2] [2008] WASC 245

Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423

Shaw v McGinty [2006] WASCA 231

1. MARTIN CJ: The applicants, Mr and Mrs Bride (the Brides) in their personal capacities and in their capacities as trustees of a trust, apply for leave to appeal from the decision of Heenan J refusing an application which they made pursuant to s 7 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) seeking orders for the rescission and/or variation of orders previously made under that Act. Leave to appeal is required because the decision of Heenan J is of an interlocutory character (see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423). It is of interlocutory character because a further application can be made pursuant to s 7 of the Act by the Brides at any time.

The order under the Vexatious Proceedings Restriction Act

1. On 17 August 2004, Heenan J made a number of orders against the Brides pursuant to s 4 of the Act (see Commonwealth Bank of Australia v Bride [2004] WASC 177). As Heenan J observed in his reasons for decision, since the financial collapse of their businesses in August 1984, the Brides had (by 2004) commenced over 60 actions or proceedings. For reasons given fully by Heenan J, he made orders which would have the:

   … practical effect, that the Brides will be prohibited from pursuing or instituting any legal proceedings arising from or associated with their disputes about the events associated with their defaults under the securities over their Katanning properties in 1984 and the actions taken by all those persons or corporations engaged in the enforcement of the securities or the resolution of the litigation and disputes which subsequently followed. [143]

2. Heenan J also made orders staying various proceedings which were then on foot in the Supreme Court and the District Court.  These proceedings included an appeal from a decision of Acting Master Chapman in CIV 1090 of 2000 (which later became a pending appeal numbered FUL 3 of 2001) in which he struck out an amended statement of claim which had been filed by the Brides and entered judgment against them, and District Court action 2297 of 2002 commenced by the Brides against the Shire of Katanning, the Commonwealth Bank of Australia, Peat Marwick Mitchell and KPMG seeking damages, including exemplary damages, an indemnity for shire rates and land tax, and the redelivery of title deeds to certain land at Katanning in respect of which the bank was alleged to be a mortgagee in possession.

3. The Brides appealed from the decision of Heenan J.  That appeal was dismissed (see Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225). The Brides applied for special leave to appeal to the High Court from the dismissal of their appeal. Special leave was refused (Bride v Commonwealth of Australia [2008] HCASL 446)

Decision in Bride v Shire of Katanning [2008] WASC 131

1. My decision in Bride v Shire of Katanning [2008] WASC 131 is relevant to the Brides' arguments in the current application for leave to appeal. It is useful to set out the history behind that decision.

2. In November 2004, the Shire of Katanning commenced proceedings in the local court at Katanning (now the Magistrates Court) against Mr Bride claiming outstanding rates and charges in respect of land situated at Lot 29 Creek Street, Katanning which is registered in the name of Mr Bride and has been generally described in the various proceedings to which I have referred as 'the winery land'.  In a defence filed in January 2005, Mr Bride denied that he was ever in possession of the winery land, and asserted that the mortgagee of the land, the Australian Bank Ltd (the Bank), of which the Commonwealth Bank of Australia is the successor in law, or its agents were at all material times in control of or in possession of the land.  The shire applied to strike out the defence on the ground that it was an abuse of process, because the issues which Mr Bride sought to raise had been decided against him in previous proceedings.  The magistrate upheld that application, and struck out Mr Bride's defence.

3. Mr Bride appealed to the District Court.  Judge O'Brien dismissed that appeal (see Bride v Shire of Katanning [2007] WADC 116).

4. Mr Bride then applied to this court for an extension of time within which to appeal from the decision of Judge O'Brien.  I heard that application, and on 4 July 2008 granted Mr Bride an extension of time within which to commence an appeal from the decision of Judge O'Brien (see Bride v Shire of Katanning [2008] WASC 131). The appeal which was brought pursuant to that grant of extension of time was later allowed by consent. The orders made by consent included orders setting aside the decision of the magistrate to strike out Mr Bride's defence. It therefore seems a reasonable inference that the shire's claim against Mr Bride for rates and outstanding charges in respect of the winery land is proceeding in the Magistrates Court.

5. In the reasons which I gave for granting the application for an extension of time within which to appeal from the decision of Judge O'Brien, I concluded that it was reasonably arguable that one of the arguments which Mr Bride wished to advance in opposition to the shire's claim for rates, being an argument based on the proposition that correspondence emanating from Mr Charles Fear as agent for the Bank during 1988 provided evidence that the Bank had taken possession of the winery land at or around that time, had not been previously determined one way or the other.

The application to vary the order made under the Act

1. Section 7 of the Act provides that an order made under the Act staying any proceedings, or prohibiting a person from instituting proceedings without leave, may be rescinded or varied on application by the person the subject of such an order. Encouraged by my conclusion that it was reasonably arguable that a particular issue which Mr Bride sought to raise in defence of the shire's claim for rates had not been previously determined, the Brides applied under s 7 of the Act for rescission and/or variation of the orders made by Heenan J on 17 August 2004 so as to allow them to:

   (a)proceed with the prosecution of the appeal (FUL 3 of 2001) from the decision of Acting Master Chapman (CIV 1090 of 2000) striking out their statement of claim and granting judgment against them; and

   (b)appeal from the orders of Registrar Kingsley made on 23 April 2003 in District Court action 2297 of 2002, in which he struck out the Brides' statement of claim as against the Bank, Peat Marwick Mitchell and KPMG.

2. Heenan J refused that application (see Commonwealth Bank of Australia v Bride [No 2] [2008] WASC 245). The Brides now apply for leave to appeal from that decision.

Reasons of Heenan J

1. In his reasons Heenan J incorporated, by reference to his decision in 2004, the reasons why he had concluded that in CIV 1090 of 2000, FUL 3 of 2001 and District Court action 2297 of 2002 the Brides were attempting to raise issues which had been previously determined.

2. In the proceedings which the Brides commenced in this court and which were dismissed by Acting Master Chapman (CIV 1090 of 2000), the Brides essentially raised the same issues which had been determined against them by Parker J in other proceedings in this court (Bride v Australian Bank Ltd [2000] WASC 116), with the exception of allegations of fraud which Heenan J concluded had no reasonable prospect of success.

3. In relation to that part of the Brides' application which related to the proceedings which they had commenced in the District Court (action 2297 of 2002), Heenan J reiterated his conclusions, made and enunciated in 2004, that insofar as those proceedings made claims against the shire, they were commenced for the collateral purpose of renewing allegations against the Bank and its receivers that had been determined in previous proceedings, and insofar as they advanced claims against the Bank and its receivers, raised the same causes of action which had been previously determined in the decision of Parker J (see above).

4. Heenan J observed that the basis of the Brides' application was that the circumstances in which the order had been made against them under the Act in 2004 had changed, because of my expression of the view that it was reasonably arguable that the particular issue arising from the correspondence written by Mr Fear in 1988 had not been previously determined.  In that context, Heenan J accepted, for the purposes of the application for rescission or variation of his previous order, that the issue arising from the correspondence written by Mr Fear had not previously been determined.  However, Heenan J observed that acceptance of that proposition did not undermine or vitiate the reasons why he had ordered that the District Court proceedings be stayed.  As I have observed, the reason for those orders was that, insofar as there was a claim against the shire in those proceedings, they were an abuse of process because they were brought for a collateral purpose, and insofar as there were claims against the Bank and its receivers, they were an abuse of process because they sought to ventilate precisely the issues which had previously been determined (not being the issue arising from the correspondence written by Mr Fear in 1988).

5. Similarly, in relation to the appeal from the decision of Acting Master Chapman (FUL 3 of 2001), Heenan J concluded that there were no circumstances which vitiated or undermined his conclusion in 2004 to the effect that those proceedings were an abuse of process because the Brides were attempting, in those proceedings, to raise precisely the issues which had been determined against them (not being an issue arising from the correspondence written in 1988), other than the allegation of fraud which had no reasonable prospect of success.

The application for leave to appeal

1. In support of the application for leave to appeal, an affidavit of Mr Bride was filed.  The affidavit identified seven proposed grounds of appeal.  It is unnecessary to set them out.  At least one of them is entirely extraneous to any issue that would properly arise on an appeal if leave were granted, being the ground which makes allegations to the effect that a legal practitioner had knowingly misled each of Acting Master Chapman and Registrar Kingsley in the proceedings to which I have referred.  To the extent that the grounds are pertinent to the issues which would arise on an appeal they generally depend, with varying degrees of connection, upon my reasons for granting an extension of time within which to appeal from the decision of Judge O'Brien.  In particular, they depend upon my conclusion that there was an issue which Mr Bride had sought to raise in the proceedings before the magistrate on the shire's claim for rates which had not previously been determined, being the issue arising from the correspondence written by Mr Fear in 1988.

Heenan J was correct

1. Unfortunately, neither the written nor oral submissions advanced in support of the application for leave to appeal appeared to comprehend or adequately grapple with the essential nature of the reasoning which caused Heenan J to dismiss the application to rescind or vary his earlier orders.  As I have observed, that reasoning was essentially to the effect that his earlier orders were not based upon, or in any way undermined or affected by, the proposition that there was a prospective issue arising from the 1988 correspondence which had not previously been determined.  Rather, the decision of Heenan J was based upon the actual issues and purposes which had been made manifest by the Brides in the proceedings in this court which were dismissed by Acting Master Chapman and in the District Court.  There was no suggestion in either of those proceedings that Mr Bride wished to raise an argument based upon the 1988 correspondence.  Rather, for the reasons given by Heenan J in 2004, it was clear that in each of those proceedings, the Brides wished to re‑agitate precisely those issues which had been previously determined.

2. The reasons given by Heenan J for refusing the Brides' application to rescind or vary his earlier orders are, with respect, plainly correct.  The fact that an argument arising from the 1988 correspondence has not previously been determined provides no basis whatever for rescinding or varying the orders made against the Brides under the Act for reasons which are unaffected by that issue.

Conclusion

1. Any appeal from the decision of Heenan J would have no prospect of success and accordingly leave to appeal should be refused.

1. WHEELER JA:  I agree with the reasons to be published by Martin CJ, save that I would wish to reserve my position in relation to one question of law.  The Chief Justice, in [1], states that leave to appeal the decision of EM Heenan J is required because that decision is of an interlocutory character.  To the extent that that proposition asserts that, if the appeal is competent, it is of an interlocutory character and leave is required, I would agree with it.  To the extent that it may be thought implicitly to assert that the appeal is competent, I would note that that question was not raised before us. 

2. Normally, I would consider it inappropriate to deal with the substance of an appeal where there was any issue concerning whether the appeal was competent.  However, in the particular circumstances of this case, I am prepared to assume, without deciding, that the appeal is competent.  That is because the application by Mr Bride was made ex parte.  Mr Bride represents himself.  The long history of this matter demonstrates that the question of the competence or otherwise of the appeal is not one in relation to which it is likely that he would be able to formulate submissions to assist the court.  The question of competence was therefore not raised at the oral hearing. 

3. The issue which I perceive may lead to a question about the competence of the appeal is this. The orders of EM Heenan J made pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) included orders that the Brides be prohibited from "instituting any action, proceeding, appeal or other application in any court in Western Australia" against, inter alia, the Commonwealth Bank of Australia, in respect of any claim or matter "arising from" certain matters which his Honour described in his order. An application pursuant to s 7 of the Act seeking to rescind or vary an order made between the Brides and the Commonwealth Bank, for the purpose of enabling the Brides to pursue actions or applications arising out of the matters which his Honour described, might prima facie appear to be encompassed within the scope of his Honour's order. That order, therefore, unless and until rescinded or varied, may preclude the bringing of an application for leave to appeal, or an appeal, to this court in respect of the refusal to rescind or vary that order.

4. Plainly, s 7 of the Act must be read as impliedly excepting from the scope of any prohibition in an order made pursuant to s 4, any proceedings pursuant to s 7 which seek to have that order under s 4 rescinded or varied. I would take that view because of the structural and practical matters to which I referred in Shaw v McGinty [2006] WASCA

231.  In summary, it would make no sense for an applicant to be required to seek leave to institute an application to rescind or vary the very order which precluded the applicant from bringing proceedings.

1. In Shaw v McGinty, I concluded, in reasons with which Steytler P and Buss JA agreed, that an order pursuant to s 4 of the Act could not preclude a person from bringing an application for leave to appeal from the order made pursuant to s 4. However, the considerations which led to that view do not necessarily apply to applications pursuant to s 7. So far as practical and structural considerations are concerned, it might be considered that it would be odd if a person who is, by definition, a vexatious litigant, should be provided with a right of appeal (even if there is a requirement for leave, the appeal being interlocutory) from a refusal to rescind or vary an earlier order, in circumstances where that earlier order either was or could have been itself the subject of an appeal, and where the statute does not preclude the making of repeated applications for review or variation of that order at first instance. If an appeal was open, the Act could be seen as providing a considerable scope for the multiplication of futile proceedings, to the detriment of the orderly dispatch of the business of the court and, indirectly, to the detriment of other litigants.

2. As I noted, the matters the subject of the observations above have not been raised in this appeal and have therefore not been the subject of argument.  However, it seemed to me desirable to mention them at this stage, so that the decision in this case should not be considered to be authority for the proposition that an appeal of this kind, against a refusal to rescind or vary an order made in the terms which I have described, is competent. 

3. MILLER JA: I agree with Martin CJ and I agree with the additional observations of Wheeler JA which question the competence of any appeal under the provisions of s 7 of the Vexatious Proceedings Restriction Act 2002 (WA).