Carlos v Commonwealth Bank of Australia

[2020] TASSC 14

[2020] TASSC 14

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Carlos v Commonwealth Bank of Australia [2020] TASSC 14

PARTIES:  CARLOS
  v
COMMONWEALTH BANK OF AUSTRALIA

FILE NO:  1099/2019
DELIVERED ON:  14 May 2020
DELIVERED AT:  Launceston
HEARING DATE:  11 May 2020
JUDGMENT OF:  Pearce J

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions of an administrative character – Order of Associate Judge of Supreme Court for possession of land under the Land Titles Act 1980, s 146 – Not decision of an administrative character.

Judicial Review Act 2001 (Tas), s 4(1).
Aust Dig Administrative Law [1008]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  K Cuthbertson
Solicitors:
             Respondent:                Rae and Partners

Judgment Number:  [2020] TASSC 14
Number of paragraphs:  17

Serial No 14/2020

File No 1099/2019

CARLOS v COMMONWEALTH BANK OF AUSTRALIA

REASONS FOR JUDGMENT  PEARCE J

14 May 2020

1. 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. The order was made on application by the Bank pursuant to the Land Titles Act 1980, s 146. By originating application filed 26 April 2019, Carl Hippman applies for review of the decision. The application is made under the Judicial Review Act 2000 (the JR Act). Before Holt AsJ, and in these proceedings, the person named Carl Melton Hippman identified himself by the appellation Carlos.

2. The application must be dismissed. The JR Act has no application to the decision sought to be challenged. The decision of Holt AsJ was a judicial decision, and not a decision of an administrative character, and is not reviewable under the JR Act.

The proceedings before Holt AsJ

1. The land at 24 Nerang Street, Lauderdale was registered in the names of Carl Melton Hippman and Shan Louise Hippman. The application made by the Commonwealth Bank concerned two properties, but only the land at 24 Nerang Street, Lauderdale is relevant for present purposes. It is the only property in respect of which the challenged order for possession was made. Mr Hippman and Ms Hippman were first and second respondents to the application. Another person, Leigh Bernard Keane, was named as third respondent to the Bank's application. However, Mr Keane's interest was as registered proprietor, with the other respondents, of a different property in respect of which no order was sought or made.

2. By the Land Titles Act, s 146, a mortgagee, where default is made in the payment of money secured by a mortgage, may apply as against the mortgagor, for an order for possession of the premises in respect of which the default is made. Such applications are made by originating application to a judge in chambers: Supreme Court Rules, r 90(1)(zo). They are also subject to the provisions of Div 1 of Pt 25 of the Rules. By r 601(1)(a), applications must specify, if known and applicable, the address and title reference of the relevant land, the date of, parties to, and registered number of, the mortgage, the amount claimed to be due under the mortgage and particulars of how that amount is calculated, the daily amount of interest accruing under the mortgage and the costs of the application. Applications must be supported by affidavit addressing the matters specified in r 601(2). In the case of an application by a mortgagor, an order for possession may only be made on proof of service of the application, default in payment of money due under the mortgage prior to institution of proceedings and that the money due under the mortgage remains unpaid: Land Titles Act, s 146(5), the Rules, r 602(3).

3. Once the required matters are proved, and if the mortgagor has not shown good cause why the property should not be recovered by the mortgagee, the court may order that possession of the property the subject of the application be given to the mortgagee on a date not less than 4 weeks after the hearing: the Rules, r 602(2).

4. The hearing of the Bank's application commenced on 28 February 2019. All three respondents had been served with the application and the evidence in support of it, and appeared unrepresented at the hearing. Evidence was presented in oral and affidavit form, witnesses were examined and cross-examined, and submissions were made. Some of the evidence which the applicant sought to introduce was the subject of evidentiary objection and was ruled inadmissible. Holt AsJ also refused an application made during the course of the hearing by Carlos that the Bank's application for possession be heard before a jury. On 1 March 2019, after the close of the Bank's case, the applicant, Carlos, applied for an adjournment. He had not yet gone into evidence. When granting the adjournment, Holt AsJ directed that any action by Carlos and Shan Hippman to set aside the loan contracts with, or the mortgages to the Bank, be commenced within 14 days of that date, and that any application for injunctive relief to restrain the continuation of the possession proceedings be filed and served within 21 days. No action was commenced and no application for injunctive relief was made. The hearing resumed on 8 April 2019 and continued to 9 April 2019. At the conclusion of the hearing, his Honour made the decision now challenged. He delivered reasons orally, although edited written reasons were later published to the parties.

5. Holt AsJ made findings of fact in the following terms:

   "In September 2008 the first and second respondents borrowed from the Commonwealth Bank $885,000 comprised of two loans. The first loan was for $465,000, attracting interest at a variable rate, and the second loan was for $425,000 attracting interest at a fixed rate for the first three years.

   The first and second respondents drew down on the entirety of these loans. The loans were given so that the first and second respondents could refinance a loan of $415,000 from Wizard Finance and also so that they could purchase a house at Ward Street, Kalgoorlie. The respondents, already at the time the loans were given, owned a house at Neika, near Hobart in Tasmania, and two houses at Lauderdale in Tasmania.

   Repayment of the loans was secured by mortgages over several parcels of land. Mortgage number C880771 provided security over the house owned by the first and second respondents at 24 Nerang Street, Lauderdale, being property comprised in Certificate of Title Volume 18550 Folio 24.

   The balance of the loan accounts was reduced by the first and second respondents from the proceeds of the sale of the property at Ward Street, Kalgoorlie in Western Australia and from the sale of the property at South Terrace, Lauderdale in Tasmania. However, by January 2018 one of the loan accounts, being account numbered 519995307 had a debit balance of about $361,000 and was about $5,000 in arrears. The other loan account had a debit balance of about $110,000 and was not in arrears.

   By February 2017 the respondents had separated and arrangements were made with the applicant bank for the first respondent's account to be debited with payments due under the larger loan and for the second respondent to be responsible for payments due under the smaller loan. The second respondent maintained the payments due under the smaller loan but the first respondent failed to make the payments due under the larger loan.

   On 16 January 2018 the bank issued a notice to the first and second respondents addressed to them at 24 Nerang Street, Lauderdale. The notice required the arrears to be cleared by 24 February 2018. It advised that the payout figure on the major loan was $361,772.33 and that the repayment of all of both loan balances would be required if the arrears weren't cleared. At the time of the issue of the notice the smaller loan had a debit balance of $111,031.19. The arrears were not cleared by the 24 February. The first and second respondents made some payments but not enough to clear the entirety of the arrears.

   The terms of the mortgage over the property, by clause A22.5, provided that in the event that a notice demanding repayment of arrears was not complied with within the grace period given the loan agreements secured by the mortgage would be repayable in their entirety without the need for further notice.

   Neither loan has been repaid. As at yesterday, being 8 April 2019, the debit balance on loan account 519995307 was $411,696.30 and the debit balance on the other loan account was $108,122.26."

6. On the basis of those findings, as his Honour correctly pointed out, the making of the possession order was inevitable. The Bank established default in payment of money due under the mortgage prior to institution of proceedings and that, at the time of the order, the money due under the mortgage remained unpaid. As his Honour found, there was no proper basis to decline to make the order applied for by the Bank.

Procedural history since the decision

1. The decision of Holt AsJ was made on 9 April 2019. The application for review under the JR Act was filed 26 April 2019. It was allocated proceeding number 1009/2019. The applicant has not filed papers for this application, but it is in the interests of justice that I resolve it after taking account of the application and affidavit I have referred to, and the material I am about to refer to. The application includes 32 paragraphs, over four pages, which are described as "Grounds/Particulars of the Application", and identify some purported errors, but which largely consist of argument. As has been the case from the outset, the applicant is unrepresented. With due allowance for the disadvantage at which this places him in proceedings of this nature, the grounds are lengthy, rambling, difficult to understand and irrelevant. In support of the application the applicant swore an affidavit which was filed on 26 April 2019. He filed submissions on 5 May 2020 which consist of a cover page, an additional 49 pages of material, and a separate six page annexure.

2. After filing the application for review, the applicant attempted to obtain an order staying the operation of the possession order until determination of this application for review. It is not strictly necessary to refer to the procedural history of the applications for a stay. However it is helpful to do so because, in fairness to the applicant, I have considered not only the evidence and submissions in the Bank's application for possession, but also all of the material filed in relation to the stay applications, lest it include matters relevant to the determination I am to make. The first application for a stay was made by interlocutory application filed 13 May 2019. The application was refused by Estcourt J on 1 July 2019. On 8 July 2019 the applicant filed a notice of appeal to the Full Court challenging Estcourt J's refusal of the stay application. That appeal was allocated proceeding number 1740/2019. On 17 July 2019 the applicant filed an interlocutory application 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, not the order of Holt AsJ. On the same day, 17 July 2019, the applicant swore and filed a further affidavit. The 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 applicant 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. The applicant swore and filed a further affidavit on 15 October 2019. On 16 December 2019 the applicant filed submissions in both appeals entitled "Outline of Submissions – In Admiralty Law." The materials included in the papers for the appeals included a transcript of the proceedings before Holt AsJ, before Estcourt J and before Blow CJ.

3. Both appeals were listed to be heard by the Full Court on 21 April 2020. As president of the Court I conducted a directions hearing prior to the date for hearing. I ordered, with the agreement of the other members of the Court, that the appeals be adjourned so as to enable the application for review to be determined. On determination of the application, the appeals against the two orders refusing a stay until it is determined are pointless.

Application of the Judicial Review Act

1. Applications under the Land Titles Act, s 146, are made to the Supreme Court: s 146(1). The decision of the Associate Judge was a final judgment within the meaning of that term in the Rules, r 680A. The decision finally concluded the rights of the parties in respect to the proceedings brought by the Bank under the Land Titles Act, s 146. The applicant therefore had a right to appeal the decision to the Full Court: r 680A(2)(a). However, the applicant took a different course. The originating application filed 26 April 2019 makes application for review of the decision of Holt AsJ under the JR Act. By the JR Act, a person who is aggrieved by "a decision to which this Act applies" may apply to the Supreme Court for an order of review of the decision. The JR Act, by s 18, also provides for a review of the conduct of a person for the purpose of making "a decision to which this Act applies". Applications under the JR Act are determined by a single judge. The phrase "a decision to which this Act applies" is defined in s 4(1). It means "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". Unless the applicant establishes that the decision of Holt AsJ was a decision of an administrative character, the JR Act does not apply and the application must fail.

2. There are good arguments that the decision made by Holt AsJ to order possession of the property was made "under an enactment." However, it was not a decision of an administrative character. It was a judicial decision, an exercise of judicial power. It was, therefore, not a decision to which the JR Act applies. There is a distinction between decisions of an administrative character, and decisions of a judicial or legislative character, although the notions may overlap: Evans v Friemann (1981) 35 ALR 428 at 431; Medical Council of Tasmania v Medical Complaints Tribunal [2005] TASSC 24; Kentish Council v Wood [2011] TASFC 3, 21 Tas R 59 per Blow J (as he then was) at [8]. There is no room for doubt or overlap here. The Land Titles Act, s 146, expressly provides that applications under that provision are made to the Supreme Court. The Supreme Court of Tasmania sits as a superior court. Judges of the Court are appointed by the Governor by letters patent under the Public Seal of the State: Supreme Court Act 1887, s 5. The Court, and judges of the Court, exercise jurisdiction in the manner provided by the Supreme Court Civil Procedure Act and the Rules made under that Act. An associate judge is also appointed by the Governor: Supreme Court Act 1959, s 4(1). Subject to exceptions which do not apply here, the associate judge sitting in chambers or in court may exercise all of the powers of the Court, including the exercise of inherent jurisdiction, which may be exercised by a single judge sitting in chambers or by a single judge sitting in court without a jury: the Rules, r 962(1).

3. The challenged decision was made in proceedings which were between parties. A formal hearing was conducted. Evidence was presented in oral and affidavit form, witnesses were examined and cross-examined, and submissions were made. Holt AsJ, when determining the application, was bound by the rules of evidence. The orders his Honour made concerned rights to property and were binding and enforceable. He had an obligation to give reasons for his decision as an incident of the judicial process. The order made was subject to a right of appeal to the Full Court. The factors to which I have referred are relevant to the distinction between administrative and judicial decisions: Registrar of Motor Vehicles v Dainer (1985) 57 ALR 759; Kentish Council v Wood [2011] TASFC 3, 21 Tas R 59; Sansom v Anti-Discrimination Tribunal [2012] TASSC 73. All, individually and collectively, operate in this case to compel the conclusion that the decision was of a judicial character. Nothing points to this being a decision of an administrative character. It is not a decision to which the JR Act applied.

4. The application to review expressly seeks review of only the possession order. However the grounds of the application for review make various criticisms of the conduct of the proceedings before Holt AsJ. The grounds refer to evidentiary rulings made in the course of the hearing and his Honour's decision to refuse the applicant's request that the Bank's application for possession be heard before a jury. Such rulings and determinations are not decisions of an administrative character either. The evidentiary rulings required application of the rules of evidence, the provisions of the Evidence Act 2001 and the Supreme Court Rules, and application of those provisions to the relevant facts. Similarly, consideration of whether the application ought be heard and determined by a jury required analysis and consideration of the terms and application of the Supreme Court Civil Procedure Act, s 29, and rr 557 and 558 of the Supreme Court Rules. All of the decisions made by Holt AsJ in determining the application for possession were made in the exercise of judicial power.

5. The applicant's contentions are full of irrelevant religious, historical, political and constitutional references. They contain a mixture of assertions of jurisdictional and procedural flaws in the court process and hearing. Complaints are made about the Bank and the conduct of its officers and solicitors, some of which are scandalous and improper. Such legal issues or matters which are raised have nothing to do with the question which is determinative of this application. There is nothing in the material filed by the applicant in these proceedings or in the original or ancillary proceedings, either in the form of affidavit or submission, which casts any doubt on the conclusion that the decision of Holt AsJ was not of an administrative character. There is therefore no power for this Court to undertake the judicial review of that decision under the JR Act.

Result and order

1. The application is dismissed.