Collis v Bank of Queensland Limited
[2021] VSC 724
•11 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 02491
| GARY LEONARD COLLIS & ANOR (according to the attached Schedule) | Plaintiffs |
| v | |
| BANK OF QUEENSLAND LIMITED (ACN 009 656 740) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 November 2021 |
DATE OF RULING: | 11 November 2021 |
CASE MAY BE CITED AS: | Collis & Anor v Bank of Queensland Limited & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 724 |
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PRACTICE AND PROCEDURE - Summary judgment – First Defendant seeks summary judgment against Plaintiffs – Whether Plaintiffs have a real prospect of success – Originating Motion has no real prospect of success – Civil Procedure Act 2010 (Vic), ss 62 and 63 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
PRACTICE AND PROCEDURE – Dismissal or stay of proceeding for abuse of process – Whether proceeding is an abuse of process – Originating Motion already substantially determined by the Court of Appeal – Originating Motion an abuse of process as re-litigating matters before the Court of Appeal or closely related to matters before the Court of Appeal – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 23.01(1)(b) – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – Kuek v Victorian Legal Aid [2001] VSCA 80 – Jago v District Court (NSW) (1989) 168 CLR 23 – rule 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G L Collis, the First Plaintiff in person Ms L A Collis, the Second Plaintiff in person | Self-represented litigants |
| For the First Defendant | Mr M Biviano, Counsel | Thomson Geer |
| For the Second to Fifth Defendants | No appearances |
HER HONOUR:
Introduction
This decision concerns an application made by summons filed 13 September 2021 by the First Defendant for summary judgment of the Plaintiffs’ originating motion filed 14 July 2021 for judicial review, alternatively summary dismissal or stay of the proceeding as an abuse of process.
In support of its application, the First Defendant relies on the following:
(a) affidavit of Anthony Charles Raviola sworn 24 August 2021;
(b) affidavit of Emma Jillian Ladbury affirmed 24 August 2021;
(c) affidavit of Mr Raviola sworn 13 September 2021;
(d) affidavit of Ms Ladbury affirmed 13 September 2021 (‘Second Ladbury Affidavit’);
(e) outline of submissions filed 24 August 2021 on the stay application; and
(f) outline of submissions filed 27 September 2021.
In opposition to the application, the Plaintiffs rely on the following:
(a) affidavit of Gary Leonard Collis, the First Plaintiff, affirmed 24 June 2021 (‘First Collis Affidavit’);
(b) affidavit of Lesley Ann Collis, the Second Plaintiff, affirmed 15 June 2021 (‘Lesley Collis Affidavit’);
(c) affidavit of filing of Mr Collis affirmed 17 August 2021 (‘Second Collis Affidavit’);
(d) affidavit of rebuttal of Mr Collis affirmed 13 September 2021 (‘Third Collis Affidavit’);
(e) affidavit of rebuttal of application of summary dismissal of Mr Collis affirmed 12 October 2021; and
(f) written case of the First Plaintiff filed 26 October 2021 (‘Plaintiffs’ Written Outline’).
In addition to their written outlines, both Counsel for the First Defendant and the First Plaintiff made oral submissions. Ms Collis adopted Mr Collis’ submissions.
I have had regard to all of the affidavits and exhibits, written submissions and oral submissions as listed above. All of these have been taken into account, whether specifically mentioned in these reasons or not.
For the reasons which follow, the First Defendant’s application will be granted.
Background and Procedural History
By originating motion filed 14 July 2021, the Plaintiffs seek judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) of the judgment and orders of the Honourable Judge Cosgrave of the County Court of Victoria dated 16 December 2019, in case number CI-18-05478. His Honour’s reasons are reported as Bank of Queensland Ltd v G.L. & L.A. Collis Pty Ltd & Ors[1] (‘County Court Judgment’).
[1][2019] VCC 2062.
In the County Court Judgment his Honour gave summary judgment for the Bank of Queensland (being the First Defendant in this proceeding) against Mr and Ms Collis and judgment in default of defence against the companies owned and controlled by them, being the Third, Fourth and Fifth Defendants in this proceeding (‘Companies’), ordered possession of properties owned by the Plaintiffs in North Shore and Fyansford, and ordered payment of a sum of around $1.4 million in total plus interest and costs.
In the course of the County Court proceeding, Mr Collis had earlier sought leave to appear on behalf of Ms Collis and for the Companies, which application was dismissed by Judicial Registrar Tran (as her Honour then was) on 17 May 2019. The Judicial Registrar’s decision was unsuccessfully appealed to the Honourable Judge Woodward of the County Court and, on 7 October 2019, an application to the Court of Appeal for an extension of time to appeal and for leave to appeal Judge Woodward’s decision was refused by Judicial Registrar Irving (as his Honour then was).
On 20 January 2020, Mr Collis further applied to the Court of Appeal for leave to appeal the County Court Judgment. That application, and an application for leave to appeal against Judicial Registrar Irving’s refusal to extend time for leave to appeal Judge Woodward’s decision, were heard and determined together by the Honourable Justices Tate, Sifris and Macaulay. The Court of Appeal dismissed both applications on 12 February 2021, detailed reasons for which are set out in Collis v Bank of Queensland Ltd[2] (‘Court of Appeal Decision’).
[2][2021] VSCA 17.
By their originating motion filed on 14 July 2021, the Plaintiffs now seek judicial review of the County Court Judgment, on three grounds:
(a) first, that Judge Cosgrave failed in a duty to assist the Plaintiffs as self-represented litigants in understanding court processes and, in particular, what is described as the ‘affidavit rebuttal procedure’;
(b) second, that Judge Cosgrave denied Ms Collis and the Companies a fair hearing by refusing leave for Mr Collis to represent them “while being in full knowledge” of the Companies’ “inability to hire a lawyer due to impecuniosity”. The Plaintiffs also contend under this ground that Judge Cosgrave did not assist the Plaintiffs to understand the procedure for bringing a derivative action as shareholders in the Companies pursuant to s 236 of the Corporations Act 2001 (Cth) (‘Corporations Act’);
(c) third, that Judge Cosgrave denied Mr Collis a fair hearing by his Honour’s orders of 8 August 2019, which set a timetable for further affidavit material from the Plaintiffs to be no longer than two pages exclusive of exhibits, and submissions from the Plaintiffs and First Defendant, to be no longer than ten and four pages respectively. It is said that limitations on the length of material, and the timetable including the failure to provide for further written submissions in reply from the Plaintiffs, unduly constrained the Plaintiffs in responding to the proceeding and application.
By summons filed 9 August 2021 in this proceeding, the Plaintiffs sought a stay of the County Court Judgment and the orders made by Judge Cosgrave on 16 December 2019 pending the hearing of their application (‘Stay Application’). On 31 August 2021, the Stay Application was refused by Judicial Registrar Keith.
On 13 September 2021, the First Defendant filed a summons for summary judgment in respect of the Originating Motion pursuant to rr 22.16 and 22.22 of the Rules and ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), on the basis that the Plaintiffs have no real prospect of success; alternatively, summary dismissal or a permanent stay of the proceeding pursuant to r 23.01(b) of the Rules, on the basis that the Originating Motion is an abuse of process (‘Application’).
Applicable principles
In respect of the Application on the footing that the originating motion has no real prospect of success, the parties appear to be in agreement on the applicable principles. In particular, both the Plaintiffs and the First Defendant each rely on the principles concerning summary judgment set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[3] I adopt those principles. I have previously summarised the principles applicable to summary judgment in Padella Pty Ltd v Elliott [2018] VSC 301, [19]-[28] which were adopted by Sloss J in Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323, [41]. There is no need for me to repeat these here: suffice to say, this is the approach I have followed.
[3](2013) 42 VR 27.
It is clear that courts, including this Court, have granted summary judgment where appropriate in judicial review proceedings. Accordingly, an application for summary judgment is able to be pursued in this proceeding.[4]
[4]For example, see Kyriazis v Kos [2020] VSC 54 and Australian Education City Pty Ltd v Victorian Planning Authority [2020] VSC 177.
In respect of the application for dismissal or stay on the basis of an abuse of process, the parties appeared also to agree that the Court may take a ‘wide view’ on what may constitute an abuse of process in the circumstances, and that the categories are not closed. Each party cited Jago v District Court (NSW)[5] in this respect. The parties also appeared to be broadly in agreement that an abuse of process generally addresses attempts to convert Court processes into ‘instruments of injustice or unfairness’. This is said by the First Defendant to include the re-litigation of matters which have already been disposed of in previous proceedings, whether or not an estoppel arises.[6] Once again, I agree with those statements of principle and adopt them.
[5](1989) 168 CLR 23.
[6]Angeleska v Victoria (2015) 49 VR 131, [154]-[157] and the cases cited therein.
I will come back to the applicable principles as necessary throughout the course of this decision.
There are principles which guide the hearing and determination of proceedings involving persons who are self-represented, which were recently summarised by Derham AsJ in Daher v Bell.[7] In that case, his Honour stated:[8]
It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is ‘an essential attribute of a court’s procedure’. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.
In the decision of the Court of Appeal in Roberts v Harkness,[9] which was applied in Doughty-Cowell v Kyriazis,[10] the Court made it clear that a litigant must have a reasonable opportunity of presenting his case. What amounts to a reasonable opportunity of presenting a case depends on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal.[11]
[7][2020] VSC 346.
[8]Daher v Bell [2020] VSC 346, [8]-[9].
[9](2018) 57 VR 334 (‘Roberts’).
[10][2018] VSCA 216 [63]-[64].
[11]Roberts 337-55 [8]-[49].
I respectfully adopt his Honour’s summary and I have followed that approach.
Submissions
The Plaintiffs’ submissions
Though it is the First Defendant’s application it is helpful to deal with the Plaintiffs’ submissions first, in order to clarify exactly what is said to be the basis for review. There is substantial overlap in the three grounds of review set out by the Plaintiffs which is evident on their face and is reflected in their submissions.
Mr Collis submits that, being a self-represented litigant with limited legal experience and with no qualified legal advice, he was not informed by the Judge about the ‘affidavit rebuttal procedure’. As I understand it, Mr Collis considers that each affidavit filed by a party ought to be directly and specifically rebutted ‘line by line’, otherwise an uncontested affidavit will be accepted by the Court as a statement of fact. He says that he ought to have been told that this was the case, and/or informed that he should use the two-page affidavit or ten-page submissions ordered by the Judge to rebut the First Defendant’s evidence or application for summary judgment.
Mr Collis further submits that the limitation on the length of affidavit material and submissions in the Judge’s orders of 8 August 2019 constrained his ability to rebut the evidence. He also says that new claims were made in the First Defendant’s submissions to which he did not have an opportunity to respond.
Mr Collis also makes broad submissions about procedural fairness rights, summary judgment and abuse of process, relying on Australian and overseas authorities as well as the CPA, the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Magna Carta. Mr Collis submits that he, Ms Collis and the Companies were unable to hire a lawyer for the County Court proceeding as they were each impecunious, and that this should be taken into account when assessing whether procedural fairness was afforded.
Mr Collis acknowledges that many of the submissions made are of general application or overlap different grounds of review. The submissions about procedural fairness rights, in particular, appear to cut across each ground of review. It is unnecessary to disentangle these submissions or to repeat them here, but I have taken them into account.
These general submissions and the submissions as to the circumstances in which Mr Collis says he was denied procedural fairness do not address the Court of Appeal Decision. Mr Collis only addresses that decision in the context of submissions that he only discovered the ‘affidavit rebuttal procedure’ after the Court of Appeal Decision. Mr Collis says that he only became aware of the ‘affidavit rebuttal procedure’ on 3 April 2021 after reading and discussing the Court of Appeal’s reasons.[12]
[12]First Collis Affidavit, [55]-[56].
In the Plaintiffs’ Written Outline, the date of discovery of the derivative action procedure is said to be 18 May 2021. Ms Collis deposes that it was discovered on 20 May 2021.[13] Like the ‘affidavit rebuttal procedure’, it is said that the Judge erred in failing to advise Mr Collis of the potential for a derivative action.
[13]Lesley Collis Affidavit, [11].
Not a great deal turns on these differences in timing, other than to note that these matters (the ‘affidavit rebuttal procedure’ and the derivative action) are said to have arisen after the Court of Appeal Decision.
The Plaintiffs make no submissions as to whether they ought to be permitted to proceed with the application for review in the face of the Court of Appeal Decision, beyond the general submissions as to the merits of their case and the purported novelty of the application as it concerns the ‘affidavit rebuttal procedure’ and the derivative action issues.
First Defendant’s Submissions
The First Defendant submits that each ground of review is substantially identical to matters dealt with by the Court of Appeal. The first and third grounds of review are said to have been dealt with in respect of grounds 15 and 9 of the appeal against the County Court Judgment, respectively. The second ground of review is said to have been dealt with pursuant to ground 15 of the appeal against the County Court Judgment, and in each of the 14 grounds of appeal in respect of the decision of Judge Woodward, on appeal from Judicial Registrar Tran, to deny Mr Collis leave to represent Ms Collis and the Companies.
The First Defendant also submits that an abuse of process or an Anshun estoppel can be established where a matter was not directly raised before the Court of Appeal, and in circumstances where that matter is so connected to the matters before the Court of Appeal that it was unreasonable for the Plaintiffs not to have raised the matter before the Court of Appeal.[14]
[14]See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Timbercorp Finance Pty Ltd In Liq) v Collins and Tomes [2016] VSCA 128, [140].
The First Defendant further submits that where a matter has, or ought to have, been properly agitated in an appeal, the matter ought not be dealt with by way of judicial review pursuant to Order 56 of the Rules unless exceptional circumstances apply.[15]
[15]See Kuek v Victorian Legal Aid [2001] VSCA 80, [16].
The First Defendant submits that to the extent the Court of Appeal has dealt with the subject matter of any ground of review, their agitation in this proceeding is an abuse of process in the sense of being Anshun-estopped or, if no estoppel arises, in the broader sense of re-litigation of matters already disposed of or litigation of matters properly dealt with on appeal, or in the sense of being unreasonably oppressive to the First Defendant. The First Defendant submits that for the same reasons each of the grounds of review lack real prospects of success.
The First Defendant also points out that the second ground of review is improperly brought insofar as it identifies the decision-maker who refused Mr Collis leave to represent Ms Collis and the Companies as Judge Cosgrave.
The First Defendant submits that there is only one matter within the first ground of review which could possibly be characterised as a ‘fresh’ ground, being the alleged failure of Judge Cosgrave to advise the Plaintiffs about filing a rebuttal affidavit. The First Defendant submits that this is not a ‘fresh’ ground as Mr Collis was aware of the Judge’s view that he had not rebutted the First Defendant’s evidence prior to the commencement of the Appeal.[16] Further, the First Defendant submits that if this is not an abuse of process for the reasons already stated, it has no real prospects of success due to the substantial opportunities afforded to the Plaintiffs to file material in respect of the application before Judge Cosgrave and the significant amount of material actually filed by the Plaintiffs.
[16]This is said to be evident from the First Collis Affidavit, [55].
The First Defendant accepts that the derivative action point is ‘fresh’ in the sense that it was not specifically dealt with by the Court of Appeal. However, the First Defendant submits that even if the Plaintiffs are not estopped or otherwise barred from raising that point in this proceeding, it does not assist the Plaintiffs. The First Defendant first submits that leave pursuant to s 237 of the Corporations Act to take the action would not be granted as Mr Collis is acting for a collateral purpose; and further submits that leave for a person to bring a proceeding for a company pursuant to ss 236 and 237 is fundamentally distinct to leave to represent the company pursuant to r 1.17 of the County Court Civil Procedure Rules 2018 (‘CCV Rules’).[17]
[17]Worldwide Enterprises Pty Ltd v Silberman & Anor [2010] VSCA 17, [23]–[25] (‘Silberman’).
The First Defendant also responds to Mr Collis’ submissions that he and his related parties’ impecuniosity was the cause of their inability to obtain legal advice or representation for the County Court proceeding. An “asseveration” of Mr Collis dated 10 April 2019, which was before Judge Woodward at the time of his decision,[18] states that the Companies were solvent and that Mr and Ms Collis were instead concerned about finding a solicitor who had not been previously engaged by them and who would take an oath of allegiance to the Queen that they thought necessary. That asseveration also states that Mr Collis had already given an oath before God that he would never again hire a barrister or solicitor and he should not be expected to breach his oath.
[18]Exhibit EJL-11 to the Second Ladbury Affidavit.
Consideration
Put briefly, I accept the First Defendant’s submissions and will grant its application for summary judgment in respect of the Plaintiffs’ application for judicial review.
I accept that it will be an abuse of process to commence proceedings for judicial review in respect of matters which have already been determined by the Court of Appeal where an appeal was brought. That abuse of process may be described in terms of an estoppel, res judicata or some other bar against re-litigation of matters already determined; or it may be described in terms of unreasonably oppressive conduct; or in terms of the bar against judicial review where the proper course is for an appeal to be brought. To my mind each of these species of abuse of process is apt to describe the present proceeding.
Save for the issues concerning the ‘affidavit rebuttal procedure’ and the derivative action, the grounds of review are essentially identical to matters determined by the Court of Appeal. The complaint that Judge Cosgrave confined the Plaintiffs’ affidavit material and submissions was squarely dealt with in respect of ground of appeal 9, and, in respect of any alleged ‘new claims’ said to have been raised and not rebutted, in ground of appeal 10.[19] The Court of Appeal also clearly dealt with the subject matter of the second ground of review (apart from addressing derivative leave).[20] Mr Collis himself recognises that ground 3 of the Plaintiffs’ judicial review application was raised in the Court of Appeal, but says that because the appeal was dismissed he is allowed to raise that ground in this proceeding.[21] In his oral submissions, Mr Collis repeatedly contended that the Court of Appeal had not heard his appeal. I simply do not see how that contention can be maintained in the face of the hearing which occurred on 17 November 2020 before the Court of Appeal and the Court of Appeal Decision itself.
[19]See [71]–[80] of the Court of Appeal Decision.
[20]Ibid [96]–[99], [118]–[133].
[21]Third Collis Affidavit, [5].
The ‘affidavit rebuttal procedure’ issue was not raised in that form before the Court of Appeal. However I consider that raising it in this proceeding is an abuse of process, as it is a matter which ought to have been raised before the Court of Appeal and is intrinsically and inextricably related to matters which were raised before that Court. This is so whether the abuse is characterised in the manner of an Anshun-estoppel or in respect of the bar against a judicial review proceeding where an appeal ought to lie, or some other principle which I have already addressed. I do not accept Mr Collis’ explanation that he only became aware of the issue following the Court of Appeal Decision, as that would require accepting Mr Collis’ submission that he was denied advice or access to a special procedure concerning affidavit evidence.
Mr Collis appears to submit that this special procedure is one where each affidavit is to be accepted on its face until it is rebutted line by line by a further affidavit. That is a fundamental misunderstanding of the nature and treatment of evidence in a court proceeding. It is also a procedure not known to or followed by this Court. Further, at [76] of the Court of Appeal Decision, their Honours make very clear that the Plaintiffs were ‘afforded every opportunity … to adduce evidence and present their case’. This ground, and Mr Collis’ submissions in respect of it, also rely on a fundamental mischaracterisation of the County Court Judgment. In order to oppose the summary judgment application in the County Court, the defendants in that proceeding needed to put on whatever evidence they wanted to rely on to rebut the First Defendant’s evidence. That is what is meant by rebutting the First Defendant’s evidence; it is not some special procedure. The Plaintiffs had ample opportunity to do so and directions were made in the County Court to facilitate this.
For the same reasons, I would also dismiss this ground of review on the basis that it has no real prospects of success.
The derivative action issue was not a matter raised before the Court of Appeal. However, I accept the First Defendant’s submissions that it does not assist the Plaintiffs in their judicial review application.
First, there can be no derivative action under the Corporations Act in respect of Mr Collis representing Ms Collis in the County Court proceeding.
Secondly, in respect of the Companies, the Plaintiffs seek review of decisions made pursuant to r 1.17 of the CCV Rules. As was said in Silberman, the part of the Corporations Act in which ss 236 and 237 appear ‘says nothing about the circumstances under which an unqualified person may be given leave to appear, as an advocate in legal proceedings, on behalf of a company’.[22] Even if the application for review had correctly identified the decision-maker it would be misguided and have no real prospects of success.
[22]Silberman, [25].
Further, the Plaintiffs’ reliance on a derivative action as a means to have Mr Collis represent the Companies is based on a fundamental misconception of those provisions of the Corporations Act. That Act provides a mechanism by which certain persons with an interest in a company can apply to bring a proceeding in the name of the company, usually where the company is either refusing to do so itself or is not likely to bring the action itself (or defend it, as the case may be).[23] The Companies were already part of the County Court proceeding: they were named as defendants. They were controlled by Mr Collis as he was the sole director and shareholder of the Fourth and Fifth Defendants, and by Mr and Ms Collis in the case of the Third Defendant as they were both directors and shareholders. Therefore, Mr Collis, together with Ms Collis in respect of the Third Defendant, were in a position to cause the Companies to take whatever action they considered necessary in respect of the County Court proceeding: there was no need for recourse to a derivative action. Sections 236 and 237 of the Corporations Act do not, as set out above, provide a mechanism by which a director or shareholder who is not legally qualified can act in court proceedings on behalf of a company.
[23]Silberman, [23].
To contend that as a self-represented litigant Mr Collis was denied procedural fairness because the Judge did not inform him of a special procedure which does not exist or a derivative action inapplicable to the circumstances of the case is no basis for a judicial review application.
I will make some final observations that only strengthen my conclusions.
First, the Plaintiffs sought to commence this proceeding out of time. The authorities establish that for an extension of time under r 56.02(3) of the Rules, special circumstances must exist and what those special circumstances are is determined by all of the circumstances of the case. Relevant factors to the exercise of the Court’s discretion include the length of the delay; the reason for the delay; any prejudice to the defendant; whether the plaintiff has an arguable case; and the public interest in the finality of litigation.[24]
[24]McKechnie v VCAT & Anor [2020] VSC 454, [28]-[29] (‘McKechnie’); Maddafferi v Chief Commissioner of Police [2017] VSC 652, [40].
The Second Collis Affidavit seeks to explain difficulties Mr Collis says he had in filing the Originating Motion. However, that only addresses the period between the Court of Appeal Decision and when Mr Collis filed the Originating Motion, and says nothing about the period after the date of the County Court Judgment. Any application for judicial review of the County Court Judgment and/or Judge Cosgrave’s orders of 16 December 2019 was due to be made, at the latest, by 1 March 2020.[25] Accordingly, the Originating Motion has been filed substantially late.
[25]See Rules 3.04(1) and 56.02 of the Rules.
The reason for the delay was said to be Mr Collis’ recent “discovery” of the ‘affidavit rebuttal procedure’ and the purported possibility of a derivative action. For the same reasons that I consider these factors to be inapt in the context of the Plaintiffs’ application for judicial review, I do not accept that these constitute a satisfactory explanation for the delay. Rather, it appears to me from his oral submissions that Mr Collis focussed all his efforts on the appeal to the Court of Appeal and only resorted to a judicial review application when that appeal was unsuccessful.
The prejudice to the First Defendant lies in the prolongation of the litigation, in circumstances where it obtained summary judgment almost two years ago.
An order for extension of time would be futile given my conclusions on the First Defendant’s application. It is well established that when considering an application for an extension of time, ‘if a case is unmeritorious it would be futile to grant an extension, and … this is highly relevant to whether “special circumstances” are made out’.[26]
[26]McKechnie, [79].
Secondly, I do not consider that there is any basis to exempt the Plaintiffs from the usual rule, stated in Kuek v Victorial Legal Aid, that absent exceptional circumstances or as a matter of discretion, an application under Order 56 is not permitted where the proper avenue for relief is an appeal.[27] This Court has refused to exercise discretion for judicial review of the decision of the County Court where there is a right of appeal and where there are no exceptional circumstances.[28]
[27][2001] VSCA 80, [16].
[28]Aussie Vic Plant Hire Pty Ltd and Anor v. CCV & Ors [2008] VSC 245, [58]-[61]; Victorian Workcover Authority v. Judge Punshon [2005] VSC 361.
To the extent that the Plaintiffs point to their late discovery of the so-called ‘affidavit rebuttal procedure’ and the procedure for derivative actions as the exceptional circumstances permitting the late and improper application, that submission is rejected. The Plaintiffs’ views on each are misguided and provide no basis for judicial review, let alone an application for review which is out of time and where the opportunity for appeal has been both exercised and determined. It is clear that this would constitute an abuse of process.
It is not in the interests of the administration of justice for matters to be re-litigated. Parties to litigation and the public generally have an interest in the finality of litigation. There is no basis for this proceeding to be permitted to continue and so the First Defendant’s application for summary judgment pursuant to ss 62 and 63 of the CPA is granted. This case is not one which falls within s 64 of the CPA. That is, it is not a proceeding that should not be disposed of summarily. It is not in the interests of justice to allow it to continue to trial, and nor is the dispute of such a nature that only a full hearing on the merits is appropriate. Rather, as set out above, the interests of justice require the opposite.
While it is not necessary to consider the alternative relief sought by the First Defendant, I indicate for the sake of completeness that this proceeding is one which should be permanently stayed or dismissed pursuant to r 23.01(1)(b) of the Rules as an abuse of process, for the same reasons as set out above.
The Application was made only by the First Defendant. The Second Defendant has, as is the usual course, provided a letter indicating that it will abide the outcome in this Court, consistent with R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors.[29] It is unclear to me why the Companies were joined as defendants in this proceeding. It seems to me that in the circumstances of this case and the outcome of the Application, this is an appropriate instance for me to exercise the discretion under s 63(2)(c) of the CPA for me to summarily dismiss, on my own motion, the proceeding as against the remaining defendants.
[29](1980) 144 CLR 13, at 35.
Conclusion
Accordingly, there will be summary judgment for the First Defendant in respect of the Originating Motion and the proceeding will be dismissed.
On 9 November 2021, my Associate informed the parties that my ruling would be handed down via email on 11 November 2021 at 10.00 am. On 10 November 2021, my Associate received, via email, a letter bearing that date addressed to me from Mr Collis. In that letter, Mr Collis stated that the Court could not proceed to deliver its ruling and gave reasons for that contention. Those reasons appear scandalous and I will not repeat them here. Leaving aside the impropriety of such a communication, I mention this now simply to place on the record that my ruling had already been prepared prior to the receipt of this communication, it has not affected my decision, and there is no proper basis for the Court not to proceed to deliver its ruling.
The parties are requested to confer on an appropriate form of order to give effect to this ruling, and as to costs. If consent is reached, then consent orders are to be forwarded to my Chambers by 4.00 pm on 23 November 2021. If consent is not able to be reached, then the Plaintiffs and the First Defendant should each forward their proposed form of order and a short written submission of no more than three pages in respect of costs to my Chambers by that same date. I will then proceed to make final orders, including as to costs, on the papers.
SCHEDULE OF PARTIES
| S ECI 2021 02491 | |
| BETWEEN: | |
| GARY LEONARD COLLIS | First Plaintiff |
| LESLEY ANN COLLIS | Second Plaintiff |
| - v - | |
| BANK OF QUEENSLAND LIMITED (ACN 009 656 740) | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
| GL & LA COLLIS PTY LTD (ACN 095 354 340) | Third Defendant |
| FYANSFORD PTY LTD (ACN 163 508 058) | Fourth Defendant |
| ASIA PACIFIC TRADE PTY LTD (ACN 095 354 260) | Fifth Defendant |
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