Carlos v Commonwealth Bank of Australia
[2020] TASFC 3
•25 May 2020
[2020] TASFC 3
COURT: FULL COURT OF SUPREME COURT OF TASMANIA
CITATION: Carlos v Commonwealth Bank of Australia [2020] TASFC 3
PARTIES: CARLOS
v
COMMONWEALTH BANK OF AUSTRALIA
FILE NOS: 1740/2019 and 2672/2019
DELIVERED ON: 25 May 2020
DELIVERED AT: Launceston
HEARING DATE: 25 May 2020
JUDGMENT OF: Pearce J, Brett J and Geason J
CATCHWORDS:
EDITED REASONS FOR JUDGMENT DELIVERED ORALLY
Procedure – State and Territory courts: jurisdiction, powers and generally – Inherent and general statutory powers – To stay or dismiss orders or proceedings generally – Appeals against refusal of stay pending determination of proceedings – Appeals futile because proceedings determined.
Aust Dig Procedure [1017]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: K Cuthbertson
Solicitors:
Respondent: Rae and Partners
Judgment Number: [2020] TASFC 3
Number of paragraphs: 5
Serial No 3/2020
File Nos 1740/2019
2672/2019
CARLOS v COMMONWEALTH BANK OF AUSTRALIA
REASONS FOR JUDGMENT FULL COURT
PEARCE J
BRETT J
GEASON J
25 May 2020
Order of the Court
Both appeals dismissed.
Serial No 3/2020
File Nos 1740/2019
2672/2019
CARLOS v COMMONWEALTH BANK OF AUSTRALIA
REASONS FOR JUDGMENT FULL COURT
(DELIVERED ORALLY) PEARCE J
BRETT J
GEASON J
25 May 2020
On 9 April 2019, Holt AsJ ordered that possession of the land at 24 Nerang Street, Lauderdale in Tasmania be given by Carl Melton Hippman and Shan Louise Hippman to the Commonwealth Bank of Australia (the Bank) unless money due under a mortgage to the Bank was paid within 28 days. On 26 April 2019 the appellant applied under the Judicial Review Act 2000 for review of the decision. The appeals to this Court concern two unsuccessful applications made by the appellant to obtain a stay of the possession order until determination of the application for judicial review. In the original proceedings, and in these proceedings, the appellant identified himself as Carlos.
The first application made by the appellant for a stay of the possession order was by interlocutory application filed 13 May 2019. The application was refused by Estcourt J on 1 July 2019. On 8 July 2019 the appellant filed a notice of appeal to the Full Court challenging Estcourt J's decision. That appeal was allocated proceeding number 1740/2019. On 17 July 2019 the appellant filed an interlocutory application in the appeal proceeding seeking a stay of the possession order "pending outcome of my appeal to the Full Bench". The only appeal to the Full Court was against Estcourt J's refusal to grant a stay. There was not, and never has been, any appeal to the Full Court against the order of Holt AsJ in exercise of the appellant's right to appeal that decision under the Supreme Court Rules 2000, r 680A(2)(a). The second application for a stay was referred to Blow CJ to be dealt with pursuant to the Supreme Court Civil Procedure Act 1932, s 15(6). His Honour refused the application on 31 July 2019. The appellant then filed a further appeal to the Full Court, this time against the decision of Blow CJ. That appeal was commenced by notice dated 15 October 2019 and was allocated proceeding number 2672/2019.
Both appeals were listed to be heard together by the Full Court on 21 April 2020. The hearing was adjourned for the express purpose of enabling the application for review to be determined, thus avoiding the need for the appeals. On 14 May 2020 Pearce J ordered that the originating application be dismissed: Carlos v Commonwealth Bank of Australia [2020] TASSC 14. Pearce J determined that the decision of Holt AsJ was a judicial decision, and not a decision of an administrative character, and was thus not reviewable under the Judicial Review Act. The decisions of Estcourt J and Blow CJ to refuse a stay were, in each case, based on the proposition that the appellant's challenge to the possession order under the Judicial Review Act had little chance of success.
It seems to us that, for the reasons enunciated in the written submissions of counsel for the Bank, the challenge to the decisions of Estcourt J and Blow CJ under appeal would not have succeeded. Both decisions were discretionary, and the provisions of the Supreme Court Civil Procedure Act, s 45, apply. None of the appellant's oral or written submissions have any merit. However, even if the appellant could have demonstrated grounds to reverse or vary those decisions, such a course is now futile. Stays were sought until determination of a proceeding which has now been determined. A stay, even if granted when applied for, would now have ceased to have effect. The appellant appears unrepresented. Counsel for the Bank is instructed that, if these appeals are determined adversely to the appellant, an application for costs will be made. Otherwise, there is no utility in appellate consideration of the decisions under appeal.
Both appeals should be dismissed. We will hear the parties further about the costs application in accordance with procedural directions made at the conclusion of the appeal hearing.
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