Commonwealth Bank of Australia v Bride - [2004] WASC 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- BRIDE & ORS [2004] WASC 177

CORAM: EM HEENAN J

HEARD: 25 - 28 MARCH 2003

DELIVERED : 17 AUGUST 2004

FILE NO/S: CIV 1576 of 2002

MATTER :Application under s 4 of the Vexatious Proceedings Restriction Act 2002

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Plaintiff
AND
EDWARD JAMES BRIDE
First Defendant
WENDY MARGARET BRIDE
Second Defendant
EDWARD JAMES BRIDE AND WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERNYING FAMILY TRUST
Third Defendants

Catchwords:

Vexatious litigants - Vexatious Proceedings Restriction Act 2002 - Application for leave to declare defendants vexatious litigants - Criteria for leave to be granted to private applicants - Whether institution of appeal to Full Court from decision of a single Judge may constitute vexatious proceedings - Relevance of proceedings in other courts including courts of federal jurisdiction - Collateral attack on decisions or issues determined by other proceedings - Whether conditions should be imposed on declarations

Legislation:

Vexatious Proceedings Restriction Act 2002

Result:

Leave granted to plaintiff
Order staying current proceedings including pending appeals
Order prohibiting institution of any further proceedings of a specified class

Category: B

Representation:

Counsel:

Plaintiff:     Mr C G Colvin SC & Ms C H Thompson
First Defendant             :     In person (Mr E J Bride)
Second Defendant         :     In person (Mr E J Bride)
Third Defendants          :     In person (Mr E J Bride)

Solicitors:

Plaintiff:     Freehills
First Defendant             :     In person
Second Defendant         :     In person
Third Defendants          :     In person

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

ANZ Banking Group Ltd v Pan Foods Importers & Distributors Pty Ltd [1991] 1 VR 29
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Attorney General v Keating [2000] WASC 93
Attorney General v Michael [1999] WASCA 181
Attorney‑General v Burke (1997) 190 LSLJ 28
Austral Pacific Group Ltd (In Liq) v Air Services Aust (2000) 203 CLR 136
Blair v Curran (1939) 62 CLR 464
Bond v The Queen (2000) 201 CLR 213
Bride & Anor as Trustees for the Pinwernying Family Trust v KMG Hungerfords (1991) 109 FLR 256
Bride & Anor as Trustees of the Pinwernying Family Trust v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996
Bride & Anor as Trustees of the Pinwernying Family Trust v KMG Hungerfords, unreported; SCt of WA; Library No 940353; 14 July 1994
Bride & Anor as Trustees of the Pinwernying Family Trust v Stewart, unreported; SCt of WA (Sanderson M); Library No 970419; 22 August 1997
Bride & Anor v Australian Bank Ltd & Ors [2000] WASC 116
Bride & Anor v Commissioner for Corporate Affairs (1989) 7 ACLC 1202
Bride & Anor v Hammond Fitzgerald & King, unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993
Bride & Anor v KMG Hungerfords WA G149 of 1997; [1998] 412 FCA
Bride & Anor v Milne Feeds Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950622; 21 November 1995
Bride & Anor v Peat Marwick Mitchell [1989] WAR 383
Bride & Anor v Stewart WA G136 of 1980
Bride v Anglo Australian Foods & Ors [2000] WASCA 124
Bride v Southern Rolled Oats Pty Ltd & the Registrar of Titles, unreported; FCt SCt of WA; Library No 970708; 16 December 1997
Bride v Southern Rolled Oats Pty Ltd, unreported; FCt SCt of WA; Library No 960564; 18 September 1996
Bride v Southern Rolled Oats Pty Ltd, unreported; FCt SCt of WA; Library No 970235; 15 May 1997
Byrnes v The Queen (1999) 199 CLR 1
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Cripps (Pharmaceuticals) Ltd v Wickenden [1977] 1 WLR 944
Daemar v Industrial Commission of NSW (1990) 99 ALR 789
Felton v Mulligan (1971) 124 CLR 367
Gosden v Dixon (1992) 107 ALR 329
Granich Partners v Yap [2003] WASC 206
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
Jenner v Selmoore Pty Ltd (1997) 23 ACSR 552
Jones v Skyring (1992) 66 ALJR 810
Melsom v Velcrete Pty Ltd (1996) 14 ACLC 779; (1996) 17 WAR 316
Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360
Official Receiver v Schultz (1990) 170 CLR 306
Pan Foods Importers & Distributors Pty Ltd v ANZ Banking Group Ltd [2000] HCA 20; (2000) 74 ALJR 791
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R Jaffe Ltd v Jaffe (No 2) [1932] NZLR 168
Ramsay v Pigram (1968) 118 CLR 271
Ramsay v Skyring (1999) 164 ALR 378
Re Attorney General (Clth); Ex parte Skyring (1996) 70 ALJR 321
Smith v Linskills [1996] 1 WLR 763
Southern Rolled Oats Pty Ltd v Bride & Anor, unreported; SCt of WA; Library No 970572; 4 November 1997
Southern Rolled Oats Pty Ltd v Bride & Ors, unreported; SCt of WA; Library No 7552; 9 March 1989
St Thomas' Hospital (Governors) v Richardson [1910] 1 KB 271
Velcrete Pty Ltd v Melsom (1995) 13 ACLC 799

Case(s) also cited:

Ashmore v British Coal Corporation [1990] 2 QB 338
Attorney-General for the State of Victoria v Kay [1999] VSC 30
Attorney-General for Victoria v Lindsey, unreported; SCt of Vic; 16 July 1998
Attorney-General v Wentworth (1988) 14 NSWLR 481
Brisbane City Council v Attorney General (Qld) [1979] AC 411
Chasfield Pty Ltd v Taranto & Anor [1991] 1 VR 225
Clements v Ellis (1933) 51 CLR 217
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311
Crown Solicitor for the State of Western Australia v Michael, unreported; SCt of WA (Wheeler J); Library No 980425; 30 July 1998
Donnelly & Anor v Capricornia Prospecting Pty Ltd & Ors [1999] NSWLEC 39
Ex parte the Attorney-General: Re Alexander Chaffers (1897) 76 LT 351; 45 WR 365
Fritz v The Hon Minister for Justice and Attorney General of Queensland, unreported; HCA B59/1996; 26 June 1997
Gallo v Dawson (1990) 93 ALR 479
Geraldton Building Co v Christmas Island Resort Pty Ltd [No 3] (1996) 14 WAR 293
Gibson v Commonwealth of Australia, unreported; HCA P28/2000; 25 October 2001
Greenhalgh v Mallard [1947] 2 All ER 255
Haines v ABC (1995) 43 NSWLR 404
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
In Re Vernazza [1960] 1 QB 197
Jared v Clements [1903] 1 Ch 429
Jenkins v Jones (1860-61) Giffords Reports Vol 2 99
Latec Investments Ltd v Hotel Terrigal (In Liq) (1965) 113 CLR 265
McCullum v McCullum [1901] 1 Ch 143
Minenco Pty Ltd v Abigroup Contractors (WA) Pty Ltd (1992) 7 WAR 576
Minogue v HEREOC (1999) 166 ALR 129
Mosman Park Town Council v Walker (1991) 73 LGRA 30
Rajski v Bainton (1990) 22 NSWLR 125
Re Skyring's Application (No 2) (1985) 59 ALJR 561
Re Skyring (1994) 68 ALJR 618
Re Skyring, unreported; SCt of Qld (White J); 5 April 1995
Reichel v Magrath (1889) 14 App Cas 665
Rondel v Worsley [1967] 1 QB 443
Saif Ali v Mitchell [1980] AC 198
Valassis v South Sydney City Council (1996) 92 LGERA 275

EM HEENAN J: Since the financial collapse of their businesses in August 1984, followed by the appointment of receivers and managers under securities held by the principal creditor and the later sale of most of the secured assets, the respondents Edward James Bride and Wendy Margaret Bride, either personally or as trustees of the Pinwernying Family Trust have commenced over 60 actions or proceedings. 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. The secured creditor was Australian Bank Ltd ("ABL" or "the bank"), since acquired by the Commonwealth Bank of Australia, the present plaintiff, which has taken over control of ABL and assumed all its liabilities.
On 8 August 1984 Mr and Mrs Bride were indebted to the bank in the amount of $3,535,617.38 and it was on that day that Mr Bride was served by the bank with notices demanding repayment of that amount. Ultimately, following the appointment of receivers and managers and the sale of various properties, both real property and personal property, which had been mortgaged or charged to secure the indebtedness to the bank, the bank was able to recoup approximately $1,745,000 of the debt. The Brides became bankrupt twice and nothing was available to meet the claims of unsecured creditors.
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.
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.
There remain four proceedings current in courts of this State in which the Brides are attempting to prosecute similar claims. Three of these are pending in this Court, one being an action claiming an estate or interest in land which has been sold to third parties by the secured creditor. There are two appeals pending before the Full Court of this Court, one from the decision of Parker J dismissing (except for the $500 awarded for damages for trespass) the Brides' claims for damages against the bank and others. The second appeal is from a decision of Acting Master Chapman striking out an amended statement of claim and dismissing the Brides' action against ABL, the Commonwealth Bank of Australia and others. The fourth set of proceedings is an action pending in the District Court of Western Australia brought against the Shire of Katanning, the Commonwealth Bank and others relating to the liability for Shire rates owing on other land secured by the mortgages to the ABL.
As the Commonwealth Bank of Australia is a party to two of these actions, and as the other two actions affect it indirectly, first through its ownership of ABL, and secondly because of the potential of the claims to affect action taken by ABL under the security, it now makes this present application under the Vexatious Proceedings Act for leave to have the Brides declared vexatious litigants and seeking orders staying these four sets of proceedings and any other proceedings which might hereafter be commenced or pursued by the Brides.
The application is, therefore, unusual in that one of its purposes and effects, perhaps the dominant purpose and effect, which would follow if the plaintiff's case succeeds would be that appeals pending to the Full Court would be stayed and that this effect would result from the decision of a single Judge of the Court who does not, and could not, exercise any of the appellate jurisdiction of this Court in those causes. That the Vexatious Proceedings Restriction Act 2002 contemplates that such a result may occur is explained later in these reasons. So there is a need to identify the considerations and principles applicable in such circumstances. However, before that can be done it is necessary to describe, more fully, the details of the four current proceedings which would be affected by any order made in the present case.

Appeal to Full Court in FUL 104 of 2000

This is a pending appeal by Mr and Mrs Bride, as trustees for the Pinwernying Family Trust, from the decision of Parker J delivered on 12 May 2000 in two consolidated actions, namely CIV 1570 of 1989 and CIV 1804 of 1989. In the first of these Mr and Mrs Bride, as trustees of the Pinwernying Family Trust, sued ABL, Southern Rolled Oats Pty Ltd, Southern Foods (1986) Pty Ltd and Milne Feeds Pty Ltd for damages. In the second, Mr and Mrs Bride, again as trustees of the Pinwernying Family Trust, sued Peat Marwick Mitchell for damages. The aggregate amount of damages claimed in the actions was, as earlier stated, $5,835,580 being $2,148,030 for the value of lands said to be wrongly sold by the defendants under the securities and a further $3,687,550 for alleged loss of profits which the Brides claimed could have been derived from the use of the lands from when the secured creditor appointed receivers and managers and went on to effect the sales. Except for the award of damages of $500 for trespass to some of the land for a period of 14 days from 9 August 1984 to 22 August 1984 against Peat Marwick Mitchell, all those claims were dismissed.

Supreme Court appeal FUL 3 of 2001

This is a pending appeal by Mr and Mrs Bride, as trustees of the Pinwernying Family Trust, against a decision of Acting Master Chapman in action CIV 1090 of 2000 in which the learned Acting Master struck out an amended statement of claim and entered judgment for the defendants, the ABL, the Commonwealth Bank of Australia, Peat Marwick Mitchell KPMG Hungerfords, David James Young and Charles Candlin Fear in an action which sought to raise issues, including issues of alleged fraud, which had been raised or sought to be raised by the Brides in the actions heard by Parker J mentioned above.
These proceedings were commenced after the action heard by Parker J had been tried but before the decision was given. As explained by Mr Bride during the course of submissions during this application, this particular action was initiated in order to protect a claim based in fraud against the possible expiration of a limitation period in circumstances where Parker J had refused a late application to raise new causes of action relying on alleged fraud in the proceedings before him.

District Court action No 2297 of 2002

This is an action commenced in August 2002 by Mr and Mrs Bride as trustees of the Pinwernying Family Trust, against the Shire of Katanning, the Commonwealth Bank of Australia, Peat Marwick Mitchell and KPMG seeking the payment of damages, including exemplary damages, an indemnity for Shire rates and land tax, and the re‑delivery of the title deeds to certain land at Katanning in respect of which the bank is alleged to be a mortgagee in possession. One of the defendants brought an application to a Registrar of the District Court to have the plaintiffs' claims struck out, or summarily dismissed.
The decision on that application was still reserved by the learned Registrar at the date of hearing of this application. However, as a matter of public record, it is now apparent that Registrar Kingsley in the District Court delivered his decision on that application on 23 April 2003 and, for reasons then published, upheld the application of the defendants on the grounds that the pleas raised by the plaintiffs constituted an abuse of process and, for that reason, could not proceed however they might attempt to reformulate them. The decision of the learned Registrar was to enter judgment for the Commonwealth Bank and Peat Marwick Mitchell KPMG. This seems to have left the action pending against the Shire of Katanning but, as set out later in these reasons, that does not affect the outcome of the present application.
Although liberty was granted for the parties to apply on, among other grounds, to bring to the notice of this Court any development in this District Court Action, no such application has been made. I therefore proceed on the basis that the District Court proceedings remain pending at least against the Shire of Katanning and that there may be some opportunity for Mr and Mrs Bride to appeal against the decision of the learned Registrar.

Supreme Court action CIV 2545 of 2002

This is an originating summons issued by Mr and Mrs Bride, in their personal capacities, against George Arthur Fulford and Patricia Fulford and the Registrar of Titles in November 2002 seeking, in effect, orders restraining the Pulfords and the Registrar of Titles from registering any dealing in certain land, registered in the names of the Fulfords as proprietors of an estate in fee simple, on grounds which include a challenge to the validity of the appointment of the receivers and managers already mentioned. The land which is the subject of this action is land purchased by the Fulfords at a sale conducted by the ABL exercising its power as a mortgagee to sell following default by the mortgagors. It is now alleged by the Commonwealth Bank that the institution of these proceedings by Mr and Mrs Bride amounts to a collateral challenge to issues determined conclusively against them in earlier litigation.

Background to all the litigation

The facts leading to the collapse of the Bride's financial affairs, the actions taken by ABL to appoint receivers and managers under various securities, and then to sell land secured by the mortgages have been described many times before, although on such occasions with particular focus on the issues raised by the litigation then determined. Detailed historical accounts are to be found in Bride & Anor v Peat Marwick Mitchell [1989] WAR 383, a decision of the Full Court comprised by Malcolm CJ, Wallace and Brinsden JJ on 9 May 1989; the decision of the Full Court in Bride v Southern Rolled Oats Pty Ltd & the Registrar of Titles, unreported; FCt SCt of WA; Library No 970708; 16 December 1997, by a court comprised by Kennedy, Pidgeon and Heenan JJ; by a further decision of the Full Court in Bride & Anor as Trustees of the Pinwernying Family Trust v KMG Hungerfords, unreported; SCt of WA; Library No 940353; 14 July 1994 by a court comprised by Malcolm CJ, Kennedy and Rowland JJ; a further decision of the Full Court in Bride & Anor v Milne Feeds Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950622; 21 November 1995 by a court comprised by Kennedy, Anderson and Owen JJ; by the Full Court in Bride & Anor as Trustees of the Pinwernying Family Trust v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 960160; 26 March 1996 by a court comprised by Pidgeon, Franklyn and Anderson JJ; by the Full Court of the Federal Court of Australia in Bride & Anor v KMG Hungerfords WA G149 of 1997; [1998] 412 FCA of 23 April 1998 by a court comprised by Carr, Branson and R D Nicholson JJ and in great detail by Parker J in Bride & Anor v Australian Bank Ltd & Ors [2000] WASC 116 which is the first of the actions resulting in one of the pending appeals to the Full Court of this Court which I have already described.
The reasons for judgment containing the findings of the courts in each of those actions were put in evidence in these proceedings and there is really no dispute about the basic facts. From these sources and from the affidavits filed in the present application the following narrative has been drawn.

As mentioned, a series of issues of fact and law have arisen which have been addressed and resolved in many of the actions which have been finally determined by judicial decisions in the past and it is claimed, by the plaintiff that a continuation of the present proceedings would involve further attempts to contest some or all of the same issues. It is therefore appropriate to identify and consider these issues as the narrative proceeds.
Mr and Mrs Bride are husband and wife who, as partners, originally conducted a bakery business and associated activities from land which they owned at Katanning. In May 1977 they were appointed the sole trustees of the newly created Pinwernying Family Trust which was a trust established to hold property and receive and distribute income for the benefit of various members of the Bride family. Throughout the history of the litigation one recurring issue has been the need to distinguish between property held, or rights enjoyed, by Mr and Mrs Bride in their personal capacities in contrast to property held by them or rights enjoyed by them as trustees of the Pinwernying Family Trust. This is especially because no property or right held by them as trustees of the Pinwernying Family Trust and in which they personally had no beneficial interest, ever passed to their trustee or to the official receiver in their bankruptcies - Bankruptcy Act 1966 (Clth) s 116(2)(a); Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; and St Thomas' Hospital (Governors) v Richardson [1910] 1 KB 271. That distinction has been repeatedly made and established in the earlier litigation to which I have alluded and is not now challenged by the Brides. Indeed, it is the basis upon which they continue to pursue all their present pending claims solely in their capacities as trustees.

The Bride Lands

There are six separate land holdings in or near Katanning, formerly or presently owned by the Brides which feature in the litigation.
Three of these parcels were owned, or continue to be owned, by Mr and Mrs Bride as trustees. They are:
(a)"Oat Mill land". This is portion of Kojonup location 255 and lot 30 on Diagram 62969 and is the whole of the land contained in Certificate of Title Volume 1322 Folio 460. It comprises about 2 hectares or more on the outskirts of Katanning and was registered in the names of Mr and Mrs Bride as joint tenants. It was subject to mortgage No C337514 dated 26 March 1982 to ABL. It takes its name from the fact that it was upon this land that the oat mill division of the business, yet to be described, was conducted.
(b)The second is the "Winery land". This is portion of Kojonup location 255 and lot 1 on Diagram 9860 being the whole of the land comprised in Certificate of Title Volume 1322 Folio 461. It consists of about 2 hectares or slightly more of land on the outskirts of Katanning and adjoins the "Oat Mill land". It takes its name from its use for a winery. It too was subject to mortgage C337514 to ABL.
(c)The third parcel of trust land is the "Vineyard land". This comprises Pinwernying lots 21, 22, 23, 37, 54 and 55 and Pinwernying lot 20 and is the whole of the land contained in Certificate of Title Volume 538 Folio 6A. It was registered in the name of Mr and Mrs Bride as joint tenants and was also secured by mortgage C337514 to the ABL.
The three parcels of land which were owned by Mr and Mrs Bride both legally and beneficially are:
(a)The "Stockfeed land". This is portion of Kojonup location 337 and lot 8 on Plan 14220 and is the whole of the land formerly comprised in Certificate of Title Volume 1654 Folio 429. It takes its name from the fact that the principal activities of the stockfeed division of the business were conducted there. This land was registered in the names of Mr and Mrs Bride and was the subject of another mortgage, C646218 dated 27 June 1983 in favour of ABL. It comprises about 4 hectares or more on the edge of Katanning.
(b)The "House land". This is a portion of each of Katanning Agricultural Area lots 51 and 70 and is lot 3 on Diagram 41856 and is the whole of the land comprised in Certificate of Title Volume 529 Folio 74A. It was and remains registered solely in the name of Mr Bride and consists of about 8 hectares or thereabouts on the outskirts of Katanning. This remains the Brides' family home and, although also subject to mortgage C337514 in favour of the ABL, was released from that security and is presently vested in Mr Bride's trustee in bankruptcy. No claims in any of the litigation still pending affect this land.
(c)The "Fulford land" or the "104 acres". This comprises portion of Katanning Agricultural Area lot 70 and is the whole of the land contained in Certificate of Title Volume 1333 Folio 281. This was registered solely in the name of Mrs Bride but was also subject to mortgage C337514 to the ABL. It was sold by the bank under its powers following default under this mortgage and was acquired by the Fulford family. Various claims by Mr Bride were made asserting the continuation of a proprietary interest over this land because of alleged irregularities and lack of power of the mortgagee to sell. These claims have all been dismissed and caveats lodged repeatedly by the Brides claiming an interest in this land have been removed by orders of the court.
The issue concerning the "Fulford land", namely whether or not Mr and Mrs Bride or either of them have any proprietary claim to land sold to third parties in the exercise of the mortgagee's power of sale following default, is another issue which has repeatedly arisen in the earlier litigation. It has arisen in attempts by the Brides to bring proceedings against transferees of the land who acquired a registered title following purchase at the mortgagee's sales. It has also arisen in cases brought by the Brides against the ABL and others attempting to have the sales set aside as invalid or ineffective.
In these other proceedings the Brides have asserted that the sales were invalid because the receivers and managers appointed by the bank under other securities were said not to have been validly appointed. Those contentions failed because the land was sold by the bank as mortgagee and not by the receivers or managers. Attempts to allege fraud of various kinds against the bank, the purchasers of some or all of the land or subsequent transferees have all failed for a variety of reasons. Insofar as the claims have been brought by Mr and Mrs Bride with respect to land previously owned both legally and beneficially by them, the claims have failed because, as plaintiffs, neither of the Brides had any standing to bring such a claim because any such right (if it existed) had passed to the trustee in bankruptcy or to the official receiver. Insofar as the claims were made in respect of land held by the Brides on trust for the Pinwernying Family Trust and in respect of which neither had any personal beneficial interest, it has repeatedly been held that no basis for any allegation of fraud against the purchasers of the lands from the mortgagee selling after default has ever been shown. Further, it has been held that there is no basis for any allegation of fraud against subsequent registered proprietors, such as the Fulfords, who have obtained an indefeasible interest in the land following purchase and the acquisition of a registered title for an estate in fee simple.
This leaves the attempts by the Brides to seek damages for fraud against the ABL and its agents for selling, as mortgagees exercising powers of sale upon default, some of the trust land (the "Oat Mill land", the "Winery land" and the "Vineyard land") fraudulently. The precise details of the allegations of fraud are difficult to identify because the allegations made in this respect by the Brides have varied from time to time, having earlier been directed against the receivers and managers appointed under other securities, KPMG Hungerfords, a Mr Stewart and others. However, an attempt to formulate the allegations of fraud was made before Parker J (in the action now under appeal) as part of an unsuccessful attempt by Mr and Mrs Bride to obtain leave to reamend their statement of claim, during the course of the trial, to allege fraud of this kind against the bank. Parker J refused leave to reamend to introduce fraud at that stage of the proceedings and it is this refusal, and its imagined consequences, which have prompted to a significant degree the appeal which the Brides have instituted from the decision of Parker J.
The desire to make a case in fraud also explains the institution of the separate proceedings in this Court (CIV 109 of 2000) dismissed by Acting Master Chapman which are the subject of the second pending appeal to the Full Court - FUL 3 of 2001.
Essentially, the Brides have attempted to allege that ABL never validly exercised its power to sell the lands which were the subject of the mortgages (this concerns only the trust lands) because of a variety of circumstances which, so it is claimed, revealed that the bank and one or more of the receivers and managers, other advisers KPMG Hungerfords, a Mr Stewart and possibly others had contrived to engineer a default under the mortgages. This is alleged to have been done by the withdrawal of funding which had previously been promised by ABL, by the making of a series of adverse reports about the financial viability of the businesses being conducted on the land; and by collusive arrangements to sell the property at an under value for the benefit of third parties in some way, who were directly or indirectly, associated with bank, the receivers or managers, or other advisors.
While it is the case that such allegations of fraud involving only trust lands and the bank and/or Peat Marwick Mitchell have not been the subject of any previous final judgment between those parties following a hearing, on the merits or otherwise, the proposed allegations are, to say the least, largely inconsistent with previous decisions which have decided that no claim in fraud with respect to the sale of the lands or other secured property exists in respect of lands held both legally and beneficially by Mr and Mrs Bride or by one of them. They are also largely inconsistent with decisions determining that the receivers and managers were validly appointed under other securities which did not charge any of the real property, on 8 August 1994, and with the decisions, already noted, that there was no basis for any allegation of fraud against the third party purchasers of the lands which had been sold at the mortgagees sales to support the asserted proprietary claims being made to those lands by the Brides, including their attempts to lodge caveats over those properties.
So extensive were these attempts by the Brides to allege fraud of different kinds against various parties involved in the enforcement by ABL of its securities over the Brides' real and personal property in August 1984, in the subsequent operation of the business by the receivers and managers, and in relation to the sales to, and the positions of, third party purchasers from the mortgagee exercising its power of sale that I do not consider that there is any arguable scope left, in fact or in law, for the Brides to make such a claim in fraud in relation to the sale by the bank of the trust properties. This is because the mortgages over all six parcels of real property, including the five parcels which were sold in the exercise of the mortgagees' power of sale, did not differentiate between land held legally and beneficially by the Brides and land which they only held legally with the beneficial interest being held on trust for others. Consequently, decisions which determined that there was no fraud by ABL or others relating to the sale of the non‑trust lands imply, in my view, that there was no fraud either in relation to the mortgagee's sale of the trust lands under the same mortgages nor any fraud by Peat Marwick Mitchell in relation to the trust land.
However, it will be necessary to examine in more detail later in these reasons the significance of the Brides' present ground of appeal against the decision of Parker J that they were wrongfully deprived of an opportunity to plead fraud against the bank and against the other defendants in that action in respect of the enforcement of the securities over the trust lands.
At this point it is necessary to revert to the period before the default by the Brides under the loans and associated securities which occurred in August 1984 in order to identify and examine the structures of the business entities which existed before then.

The Bride Businesses

After the creation of the Pinwernying Family Trust in 1977 it becomes necessary to identify whether the Brides owned property or businesses personally or solely as trustees or, in either case, whether some property was owned or business conducted by some other entity or entities. At that time there was a business name "Oat Milling of Katanning" of which Mr and Mrs Bride were registered as the sole proprietors. They were also trustees in respect of certain property held on the terms of a deed of settlement (not in evidence) known as the Pinwernying Family Trust. There were also two proprietary companies Bride Foods Pty Ltd and Swan Stock Foods Pty Ltd which had been incorporated or acquired with a view to conduct, at some time never finally determined on the evidence, some of the business operations relating to oat milling and stock feed production respectively.
The businesses actually conducted from 1977 onwards were businesses relating to the production of a special oatmeal and enriched stock foods. More details of these business operations (which I understand are not in any way controversial) are set out in the reasons for decision of Parker J in the case which is the subject of appeal No FUL 104 of 2000. Until 1989 Mr and Mrs Bride believed and consistently acted on the basis that the businesses which they conducted were conducted by the two of them in partnership on their personal account and not as trustees, nor by or through either of the two companies Bride Foods Pty Ltd or Swan Stock Foods Pty Ltd. However, after 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.
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. He does, however, contend, that Parker J was wrong in concluding that the businesses were conducted by the partnership of Mr and Mrs Bride on their own behalf and not by them as trustees for the family trust. Significantly, that issue has also been resolved repeatedly in the past in other litigation which has, without exception, determined that the businesses were conducted by Mr and Mrs Bride in partnership personally and not as trustees - Bride & Anor v Peat Marwick Mitchell [1989] WAR 383 (Full Court); Bride & Anor v Hammond Fitzgerald & King, unreported; SCt of WA (Scott J); Library No 930303; 6 May 1993; Bride & Anor as Trustees for the Pinwernying Family Trust v KMG Hungerfords (1991) 109 FLR 256 per Murray J; Bride & Anor as Trustees of the Pinwernying Family Trust v KMG Hungerfords, unreported; FCt of SCt; Library No 940353; 14 July 1994 per Malcolm CJ, Kennedy and Rowland JJ (affirming the decision of Murray J); Bride & Anor as Trustees of the Pinwernying Family Trust v Stewart, unreported; SCt of WA (Sanderson M); Library No 970419; 22 August 1997.
The continuation in the pending appeal (FUL 104 of 2000) by Mr and Mrs Bride that the businesses were conducted by them as trustees, contrary to the finding of Parker J, also involves an attempt to maintain the same point which was rejected in these earlier decisions.
It is also necessary to mention the role of some other parties to complete this perspective. KPMG Hungerfords are a firm of accountants who were engaged by the bank in 1983 to carry out a detailed appraisal of the Brides' business and to report to the bank upon their financial viability. KMG Hungerfords were so engaged and commissioned to make this report at a stage when the bank was concerned about the growing indebtedness of the Brides and the viability of the business. Mr Bryan Guthrie Stewart was an accountant employed by Hungerfords in 1983 to undertake this investigation and make this report. Later, when the report revealed severe concerns about the viability of the business and the capacity to service and repay then existing loans, the bank stipulated that Mr Bride should appoint Stewart as chief executive officer to run the business in the hope of improving the operations. Reluctantly, Mr Bride agreed to this course but the existing hostility between Mr Bride and Mr Stewart increased to such an extent that Bride dismissed Stewart from that office. The bank immediately advised that unless Stewart were reinstated it would call up the moneys owing and, again reluctantly, Bride reinstated Stewart but it was not long before he dismissed him again. It was at that point that the bank did move by calling up the moneys owing and, when it became apparent that they could not be repaid, appointing receivers and managers.
As will be described in more detail shortly, there were a variety of securities including mortgages, a deed of guarantee and indemnity and two bills of sale. The receivers and managers were appointed first under the bills of sale and later under the mortgages. The two receivers and managers so appointed were David Young and John Anderson each a partner of Peat Marwick Mitchell, another firm of accountants who had also been retained in 1984 by ABL to review the position of the Brides' business.

The Bank's securities

Reference has already been made in passing to the securities which the ABL held over property owned by the Brides both personally and as trustees. The first in time was mortgage No C337514 dated 26 March 1982 registered over and charging in favour of the ABL the Oat Mill land, the Winery land, the Vineyard land, the House land and the 104 acres (the Fulford land). Consequently, this charged all the land held by Mr and Mrs Bride as trustees for the Pinwernying Family Trust as well as two other parcels which they owned both legally and beneficially. Nothing in the mortgage distinguished between the rights of the mortgagee with regard to the trust land in contrast to the land owned legally and beneficially by the mortgagors. Under this mortgage, in the event of default by the mortgagors, the mortgagee was entitled to appoint a receiver or manager, or receivers and managers, of all or any of the mortgaged property if the default continued for a period of 14 days.
The bank was also party to a deed of guarantee and indemnity by which the Brides covenanted to be answerable for advances to them made by the bank and for any advances made by the bank to either or both of the companies Bride Foods Pty Ltd or Swan Stock Foods Pty Ltd. This deed was dated 26 March 1982. Insofar as it extends to obligations of the two companies, that has no significance in any of the proceedings because there were never, in fact, any advances to either company nor did either company ever acquire property or conduct any of the businesses. However, the obligations which it imposed in respect of the two companies assumed, for the period between 1984 and 1994, some significance because, for a large part of that time, the bank was contending that the Brides' business operations (which I have earlier mentioned have been conclusively determined to have been conducted by Mr and Mrs Bride personally for their own beneficial interests) were conducted by one or both of the two companies. Had the bank's contention been correct it would have meant that the assets of the business were secured by this deed of guarantee and indemnity as well as by two bills of sale which had also been granted to the bank by the Brides. The practical significance of that contention would have been that the assets and income of the companies would have been subject to the charges granted in favour of the bank so that the receivers and managers appointed could have had recourse to those assets in priority to the Brides' general unsecured creditors as represented by their trustee in bankruptcy. That controversy will be explained in more detail below because, on the submissions made by Mr Bride in the course of this hearing, it gives rise to one version of the allegations of fraud which the Brides wish to advance against the bank.

The two bills of sale by way of security granted by the Brides to ABL were dated respectively 24 August 1983 (to secure advances up to $2.5 million) and 23 March 1984 to secure advances for up to $3.5 million. Both bills of sale contained provisions allowing the grantee to appoint a receiver or manager, or receivers or managers, in the event of default. They charged the assets of the business or businesses conducted by the Brides and authorised any receiver or receivers so appointed, following a default, to take possession of the assets charged and, in order to do so, to enter upon any land owned or occupied by the Brides in order to obtain possession of the assets charged.
Upon default occurring by the Brides on 8 August 1994 by their failure and inability to repay the bank's advances upon demand, the bank appointed Messrs Young and Anderson (partners in Peat Marwick Mitchell) as receivers and managers of the Bride assets subject to the bills of sale. The receivers and managers took possession of the assets of the business on 9 August 1984 but, when doing so, also purported to take possession and retain control of the Oat Mill land. This was not charged by either bill of sale nor by the deed of guarantee or indemnity and no appointment of a receiver and manager by the bank under mortgage C337514 (the only available security charge over this land) had then been made. Later, after the expiration of the 14 day default period fixed under mortgage C337514 the bank appointed Messrs Young and Anderson as receivers and managers of, inter alia, the Oat Mill land and they took possession of that property pursuant to that appointment on this later date.
It was their exclusive possession of the Oat Mill land from 9 August 1984 to 22 August 1984, which went beyond the exercise of a power of entry in order to take possession of charged assets located on that land, that constituted the trespass by Messrs Young and Anderson which resulted in the judgment given by Parker J for $500 damages against Peat Marwick and Mitchell.
The Brides had contended that ABL was liable for this trespass on the grounds that it had invalidly appointed Young and Anderson as receivers who went into possession of the Oat Mill property prematurely on 9 August 1984. However, Parker J found there was no evidence to support that contention as the bank had never made any appointment of receivers or managers under mortgage C337514 before 22 August 1984. A notice of appointment of receivers and managers to the Oat Mill land dated 9 August 1984 had been executed by Young and Anderson without the knowledge or authority of ABL and, as it was found, as a result of an inadvertent mistake by them about the extent of their appointments made by the bank that day.
This problem with the receivers and managers taking possession of the Oat Mill land prematurely on 9 August 1984 and their execution mistakenly of a notice of appointment of receivers and managers on that date, has led Mr Bride to submit, before Parker J and again in these proceedings, that the supposed appointment of receivers and managers to that land of 9 August 1984 was invalid, that the later appointment actually made by the bank under mortgage C337514 is also invalid, that all subsequent actions by the receivers and managers in respect of the Oat Mill land were therefore unauthorised, including the sale of the property to third parties under the mortgage.
There are, to my mind, a series of conclusive answers which refute these submissions by Mr Bride which derive from decisions in earlier cases, the conclusions of Parker J and from the submissions which were made in the hearing before me. The Oat Mill land was eventually sold by ABL (not by the receivers and managers) under the power of sale conferred by mortgage C337514 to Southern Rolled Oats Pty Ltd and no basis by Parker J was found for impeaching that sale, still less to question the indefeasible title acquired by the purchaser Southern Rolled Oats Pty Ltd upon taking a registered title to the Oat Mill land upon the completion of its purchase from the mortgagee. The validity of the sale by the bank did not, in any way, depend upon the validity of the appointment of receivers and managers under any of the securities that mortgage included.
However, Mr Bride submitted that where there had been an invalid appointment of a receiver and manager under a debenture and the receiver and manager had wrongly taken possession of the property secured, the situation could not be cured by the secured creditor making a fresh and purportedly valid appointment of the receiver and manager over the asset or assets in question unless and until control of the property has been returned to the debtor and a fresh demand made - Velcrete Pty Ltd v Melsom (1995) 13 ACLC 799 per Parker J, reversed on appeal, but not on this point in Melsom v Velcrete Pty Ltd (1996) 14 ACLC 779; (1996) 17 WAR 316; see also R Jaffe Ltd v Jaffe (No 2) [1932] NZLR 168; Cripps (Pharmaceuticals) Ltd v Wickenden [1977] 1 WLR 944; Jenner v Selmoore Pty Ltd (1997) 23 ACSR 552 and ANZ Banking Group Ltd v Pan Foods Importers & Distributors Pty Ltd [1991] 1 VR 29 (CA) affirmed on appeal in Pan Foods Importers & Distributors Pty Ltd v ANZ Banking Group Ltd [2000] HCA 20; (2000) 74 ALJR 791.
But in the present case the bank had not made any invalid or ineffective appointment of receivers and managers on 8 August 1984. The only appointment of receivers and managers over that land ever made by the bank was the appointment of 22 August 1984 at a time when default had unequivocally occurred and the necessary period of 14 days fixed by the mortgage for the appointment of receivers and managers had expired. That Messrs Young and Anderson had taken possession of the land themselves by mistake on 9 August 1984 renders them liable to the Brides as trespassers, as they were found to be, but that liability does not, in my view, in any way affect the capacity of the bank to appoint receivers and managers of the land validly by notice of 22 August 1984 as it did. The reason why the possession taken by a receiver and manager under an invalid notice of appointment must be yielded up before a fresh valid appointment may be made depends largely on the usual provisions of the debenture or charge which require the debtor/chargor to have a specified or sufficient time to remedy the default by payment before a receiver or manager may be appointed, so that if a receiver and manager is in possession under an invalid appointment, a fresh appointment will not afford this opportunity unless possession is first returned to the chargor/debtor. Where possession is not held as a result of any act done by the secured creditor, but is rather taken because of independent unjustified action by the receiver manager, the owner's interests are fully satisfied by the trespasser's liability in damages. Nor does the wrongful possession of the charged property prematurely taken by Messrs Young and Anderson provide any evidence of fraud on their part, on behalf of Peat Marwick Mitchell, or still less by ABL.
In addition to the Deed of Indemnity and Guarantee of 26 March 1982 the bank also held Mortgage Debentures over the assets and undertakings of the two companies but nothing turns on this.
Another submission raised by Mr Bride in his challenge to the validity and efficacy of the appointments of Messrs Young and Anderson as receivers and managers relies on the fact that the second bill of sale in favour of ABL, namely the security of 23 March 1984, was granted within six months of the subsequent bankruptcy of the Brides and, therefore, to the extent that it gives the secured creditor a preference over other creditors, was void against the trustee in bankruptcy by virtue of s 122 of the Bankruptcy Act 1966 (especially s 122(8)(b)). Undoubtedly the position in this regard was correctly described by Parker J as his Honour reached the same conclusion based on s 31 of the Bills of Sale Act (1899) which is substantially to the same effect. The position is that such a security is void only against the trustee in bankruptcy of the debtor. There was nothing to show that the trustee in bankruptcy later appointed actually avoided this second bill of sale on the grounds that it constituted a preference. This possibility is however mentioned in a Deed of Compromise of 19 August 1986 mentioned below. Further, as Parker J observed, all issues between the then trustee in bankruptcy of the Brides and ABL were later resolved by a deed of compromise and mutual discharge. Not only is there nothing to show that the second bill of sale was avoided on the grounds that it constituted a preference to the secured creditor or otherwise, but this submission cannot possibly lead to any advantageous conclusion for the Brides. This is because the appointments of the receivers and managers made under the first bill of sale have never been challenged and are quite sufficient to authorise the actions of the receivers and managers in taking possession of all the assets which had also been charged by that security. For reasons already given the possession of the lands, including the Oat Mill land taken by the receivers and managers are authorised under the appointments of the bank made on 22 August 1984. These also authorise the receivers' dealings with the revenues of the lands which were subject to the mortgages.
This resume of the securities granted in favour of ABL by the Brides, and the issues arising in connection with them, can now be completed by mentioning mortgage 646218 dated 27 June 1983 which charged the Stockfeed land. This was registered against that land by the bank on 31 October 1983. It included a clause which provided that, in the event of a default (as defined) the bank could appoint a receiver and manager, or receivers and managers, in the event that the default continued for one day after notice of default had been given. Clearly, therefore, in respect of this mortgage the ABL was empowered to appoint receivers and managers, as it did, on 22 August 1984 as default in complying with the notice of demand for repayment given on 8 August had occurred.

The bankruptcies of the Brides

In order to consider the submissions made by Mr Bride at the hearing before me that he and his wife are somehow entitled to pursue allegations of fraud against the bank which they might have advanced had Parker J given leave to reamend to include claims of fraud against the bank and the other defendants, it is necessary to recount the history of the bankruptcy proceedings involving Mr and Mrs Bride and their discharges.
On 10 August 1984, that is on the day after Messrs Young and Anderson were appointed receivers and managers under the bills of sale, Mr and Mrs Bride appointed Mr Bernard Putnin as their controlling trustee under Pt X of the Bankruptcy Act. They each became bankrupt on their own petition on 6 September 1984 and Mr Putnin was appointed their trustee. An additional trustee, Mr D Campbell‑Smith, was also subsequently appointed. On their bankruptcies all the property of the bankrupts (excepting exempt property) vested in the trustee to be held for the benefit of creditors - Bankruptcy Act, s 116. However, property which the Brides had charged to ABL to support their borrowings remained subject to those charges, and the secured creditor and the receivers and managers had a right of prior recourse to those secured assets and, to the extent that they comprised operating businesses, the revenues of those businesses to satisfy the secured debt. In practice this meant that Messrs Young and Anderson, as receivers and managers, had control of and access to secured assets in priority to Mr Putnin who, as noted, was trustee for the general creditors.
Mr Bride has submitted that a dispute arose over whether or not the oat milling or stock feed businesses were operated by either or both of the two companies, Bride Foods Pty Ltd and Swan Stock Foods Pty Ltd. According to Mr Bride the receivers and managers were wrongly contending for several years that those businesses had been conducted by one or both of the companies and that the assets of those businesses were subject to mortgage debentures granted to ABL by the companies. On the other hand, as Mr Bride contended, he, his wife and Mr Putnin maintained that the businesses had been conducted by Mr and Mrs Bride personally in partnership and, therefore, that all business assets and revenues vested in Mr Putnin as trustee in bankruptcy. This contention fails to address the fact that the business assets were charged in favour of the bank by both the bills of sale or whether the receivers and managers acknowledged that the second bill of sale was void against the trustee in bankruptcy.

The Deed of Compromise of 19 August 1986

It is unnecessary to pursue any such enquiry further because the dispute between Mr Putnin, as trustee, and the receivers and managers led to a deed of compromise between them being executed on 19 August 1986. This deed, which does not appear to have been in evidence at the trial before Parker J but which is Exhibit EJB10 to the affidavit of Mr E J Bride sworn 16 March 2003 and tendered in these proceedings was between ABL, Messrs Young and Anderson and the two trustees in bankruptcy Messrs Putnin and Campbell‑Smith. Mr Bride contended that this compromise was prompted by initiatives proposed by the trustees to conduct a s 81 examination of the bank's officers and of the receivers and managers. There is no evidence to support that contention but nothing turns upon it. The deed recited that until 9 August 1984 the Brides carried on business as oat millers and stock food producers under the names and styles of, inter alia, "Oat Milling of Katanning", "Bride Foods Pty Ltd" and "Swan Stock Foods Pty Ltd" ("the Business") and, after reciting details of the secured advances by the bank, the events of default, the receivers and managers taking possession on 10 August 1984, the appointment of a trustee in bankruptcy under Pt X, the deed also recited that the trustee in bankruptcy had collected certain book debts then due and owing to the business to the total value of $43,960.43. The deed then goes on to recite that the bank and the receivers and managers disputed the entitlement of the trustee to collect those book debts and commenced proceedings in this Court (action No 2154 of 1984) seeking, among other things, orders compelling the trustee to account to the receivers and managers for the book debts and that the trustee defended that action and counterclaimed asserting that the security instruments were invalid and void against him, that the business had been carried on by the Brides in partnership and that the receivers and managers should account to the trustee for book debts for the business which they had collected.
The deed also recited that under the securities the receivers and managers conducted the business from 10 August 1984 or thereabouts until it was sold by the bank as mortgagee in or about June 1985 and that, the indebtedness of the Brides to the bank, after giving credit for the proceeds of sales under securities then stood at some $2.078 million. By its operative provisions the deed then contains the covenants of the parties to compromise their disputes. The bank and the receivers and managers agreed to withdraw all claims to the book debts of the business and to acknowledge that the business had been carried on, and that its assets were owned, by Mr and Mrs Bride in partnership. The bank also covenanted: to deliver a registrable discharge of mortgage C337514 insofar as it related to the House land in Katanning; to deliver a duly executed discharge of the two bills of sale insofar as they related to vats and other moveable equipment, and the wine contained in them, then located on certain specified lands; that the bank would not prove in the joint or separate estates of the Brides as an unsecured creditor (but without prejudice to the bank's right as a secured creditor under certain specified securities). On payment by the bank and the receivers to the trustees on behalf of the estates of Mr and Mrs Bride of an amount of $5,000 the trustees entered into a series of covenants and agreements, relating to the validity of the appointment of the receivers and managers and other matters.
After dealing with these and other covenants the deed contained a covenant discharging and releasing the bank, the trustees in bankruptcy and the receivers and managers from all claims, actions, suits or demands which any of them may have had against any other in respect of any claim, matter or thing arising from the disputes referred to in the deed.
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. The reference to s 110 of the Bankruptcy Act is a little puzzling and was not addressed in the course of this hearing. Whatever its significance may be it is clear that the trustees had power to compromise any claim by the bankrupts or any claims by or against the trustee arising out of the administration of the estate and to make a compromise with a creditor in respect of any alleged provable debt - s 134 and s 135.
This deed of compromise, on its face, bars all claims by trustees in bankruptcy against ABL or the receivers in respect "of any claim, matter or thing in any ways relating to any claim, matter or thing referred to in the deed" which includes the appointment of the receivers, the conduct of the receivership, the disputes concerning the true ownership of the assets and revenues of the stock food and oat milling businesses, the validity of the securities, the collection of the book debts, the sale of the business and related matters. Throughout the present proceedings Mr Bride made a series of submissions to the effect that the earlier assertions by ABL and the receivers and managers that the business operations were conducted by the two companies, and the conduct of the receivers in maintaining a claim to the book debts of the businesses was wrongful and persisted in by ABL and the receivers when it must have been known by them that this was wrong. Mr Bride seeks to contend that this is fraudulent conduct by ABL and by the receivers and managers. It is perhaps, not insignificant, that Parker J expressed some criticism of the bank in certain respects including its conduct in this regard. In the course of his reasons for decision in the actions now subject to appeal No FUL 104 of 2000 Parker J said at [108]:
" ... It was contended on behalf of the Bank or the receivers and managers that the business had in fact been conducted by the two companies, Bride Foods Pty Ltd and Swan Stock Foods Pty Ltd. It is clear from the evidence that this was never the case and in my finding that could not have been a view honestly or reasonably held by the Bank and its senior officers at the time. An effect of this was to deny access by Mr Putnin and later Mr and Mrs Bride to some records of or relating to the business ... .
I find myself unable to be satisfied that the Bank by its senior officers at the time, principally Mr Hancock who succeeded Mr Freemantle as State Manager, acted honestly in advancing that the two companies conducted the business. I have weighed these matters, and the consequential inability of Mr and Mrs Bride to have access to the missing records, when considering matters of credit on the overall effect of the evidence."
In such circumstances Mr Bride's desire to allege fraud against the bank and/or the receivers and managers in relation to their contentions advanced between 1984 and 1986, that the businesses were conducted by one or both of the two companies, and that the assets and revenues of the business were subject to the securities granted by the companies, and the Brides, in favour of the bank cannot be dismissed as being simply frivolous or devoid of any evidentiary support. Nevertheless, the allegation cannot in my view lead to any relief or other advantage for Mr and Mrs Bride.

There are several reasons for this, including the fact that it was ultimately recognised that the businesses were conducted by the Brides in partnership on their personal account, and that the disputed book debts recovered from the businesses were ultimately paid to the Brides' trustees in bankruptcy. As well there is the fact that the ultimate sales of both real and personal assets by the secured creditor, and especially the sales of land, were made pursuant to powers of sale the validity of which was not affected by the dispute over the book debts of the businesses or the true identity of the owner of the businesses. However, more significantly for present purposes, any right which the trustees in bankruptcy of the estate the Brides may have had to recover damages or other relief from ABL or the receivers and managers, in relation to the conduct of the receivership and management, or with regard to the actions taken by the bank following default and the realisation of the securities was discharged and released by the deed of compromise. That deed, so long as it stands, is in my view a complete answer to any claim which Mr and Mrs Bride may seek to advance in respect of property or rights which they held beneficially and which passed to their trustees upon their bankruptcy in 1984. It will be necessary to return to the significance of this deed of discharge later in these reasons to deal with a second argument which arose in the course of the hearing but, before doing so, the subsequent history of the bankruptcies must be recorded.
The Brides were discharged from their bankruptcies by order of the Federal Court on 26 February 1986 under s 150(1) of the Act (see Bride & Anor as Trustees of the Pinwernying Family Trust v KMG Hungerfords; unreported; FCt SCt of WA; Library No 940353; 14 July 1994 per Malcolm CJ, Kennedy and Rowland JJ at BC9401774 at 41). Although Parker J in the decision under appeal refers to this discharge occurring on 12 March 1986 [107], there is no doubt about the fact of their discharges and the precise date is not important in these proceedings. The Full Court in the former case described the significance of the discharge as follows:
"The position then was that any property vested in their trustee in bankruptcy immediately before their discharge remained so vested notwithstanding their discharge: Peglar v Dale [1975] 1 NSWLR 265; Piwinski v Corporate Trustees of the Diocese of Armadale [1977] 1 NSWLR 266. These cases were followed in Bride v Peat Marwick Mitchell [1989] WAR 387 at 393 per Malcolm CJ (with whom Wallace and Brinsden JJ agreed)."
There was no challenge to this position and it is, indeed, the general rule that a discharge from bankruptcy does not result in the revesting in the bankrupt of any property that has become vested in the trustee or otherwise affect the title to, or registration of, such property - Official Receiver v Schultz (1990) 170 CLR 306; Daemar v Industrial Commission of NSW (1990) 99 ALR 789 and Gosden v Dixon (1992) 107 ALR 329.
There was a second pair of sequestration orders made against the estates of Mr and Mrs Bride on 6 November 1990 by the Federal Court on a creditor's petition based on a debt of $2,806 for taxed costs which they were ordered to pay to the ABL by an order of the Federal Court (WA G62 of 1987). However, these sequestration orders were set aside by order of the Full Court of the Federal Court made on 2 August 1991 in the case of Bride & Anor v Stewart WA G136 of 1980 (Neaves, Lee and Olney JJ). The parties did not refer to the second sequestration orders or the fact that they had been set aside on appeal at the hearing before me and, apart from constituting a step in the narrative, they do not appear to be material to the resolution of the current proceedings.
The Brides were again made bankrupt by order of French J in the Federal Court on 26 November 1997 (P 1935 of 1996). This sequestration order resulted from a creditor's petition presented against the Brides by KPMG Hungerfords which alleged a failure to comply with the requirements of a bankruptcy notice served upon them on 20 June 1996 demanding payment of the sum of $163,967.27 being the taxed costs owing by the Brides to KPMG Hungerfords following the dismissal of their action against that firm in this Court on 10 June 1991 and the dismissal by the Full Court of an appeal against that judgment on 14 January 1994. The Brides appealed against the making of those sequestration orders to the Full Court of the Federal Court of Australia but that appeal was dismissed by the decision of Carr, Branson and R D Nicholson JJ on 23 April 1998 (WA G149 of 1997). I was not referred to any evidence showing that the Brides had been discharged from these bankruptcies but it is probable that the Brides were automatically discharged after the expiration of three years by virtue of s 149 of the Act. As this is the position more favourable to the interests of Mr and Mrs Bride I shall make that assumption and proceed on the footing that they were discharged from these bankruptcies in late 2000 or early 2001.
In the course of his submissions Mr Bride attempted to meet the point, that any rights which he or his wife may have had against ABL, Peat Marwick Mitchell, Messrs Young and Anderson or others arising from the enforcement of the bank's securities and the actions of the receivers and managers had become vested in the trustee in bankruptcy and did not revest in the Brides upon their discharge by asserting that the rights of action against those and other parties had been expressly assigned to him by Mr Putnin as trustee (and, presumably, by Mr Campbell‑Smith). No evidence of any such assignment was adduced in these proceedings nor referred to by the parties in the course of their submissions. As the onus of establishing the existence of such a vital assignment must rest upon the Brides it is enough to dispose of this issue by concluding, as I do, that the Brides have simply failed to establish that any such right or rights have been re‑assigned to them as asserted. In this regard, however, I consider it appropriate to notice previous findings which have been made in other proceedings dealing with assertions by Mr Bride that rights of action have been re‑assigned to him and his wife by Mr Putnin as their trustee in bankruptcy. In WA G62 of 1987, an application by the Brides made in the Federal Court of Australia against ABL and Mr B G Stewart, French J decided, in a judgment of 26 July 1988, that the Brides had no standing to bring those proceedings against the bank or Mr Stewart because any such right of action had vested in their trustee in bankruptcy (Mr Putnin) as a result of their 1984 bankruptcies. Mr Bride had sought to avoid that consequence by claiming that, by a letter of 29 October 1984, Mr Putnin had indicated that as bankruptcy trustee he had no objection to the Brides commencing such an action and that, consequently, Putnin had assigned that right of action to them personally. French J decided that that letter did not constitute any such assignment and that, in any event, this could not at that stage have been done by the trustee.
In the more recent proceedings before Acting Master Chapman in this Court (CIV 1090 of 2000) Mr Bride asserted that the rights of action had been assigned to the Brides by Mr Putnin pursuant to a deed of assignment dated 12 January 1995. That deed of assignment is not in evidence before me and therefore there is again a failure by the Brides to prove the alleged assignment to them. But the matter was dealt with more extensively by the learned Acting Master Chapman in his reasons for decision of 18 December [2000] WASC 310 which specifically addressed the fact that this deed of assignment of 12 January 1995 was from Mr Putnin alone and not from both co‑trustees, Putnin and Campbell‑Smith. Acting Master Chapman was not persuaded that necessary orders of the court as required by s 180 and s 183 of the Bankruptcy Act had been made and that, consequently, Mr Putnin could not effectively assign the rights purported to be assigned without the express concurrence and participation in the assignment by Mr Campbell‑Smith. The learned Master also observed (at [44]) that the trustees in bankruptcy could only assign property (including rights of action) which they then had and, that because of the provisions of the earlier deed of compromise with the bank and receivers the alleged rights of action had been discharged by that 19 August 1996 deed of compromise and there was nothing left to assign. The conclusion of the learned Master was that Mr and Mrs Bride had no right of action, deriving from the conduct of the bank and the receivers to enforce the securities between 1984 and 1986 which could be advanced by them.
I appreciate that Mr and Mrs Bride have instituted an appeal from the decision of Acting Master Chapman of 18 December 2000 [2000] WASC 310, that this pending appeal is one of the actions which the Commonwealth Bank seeks to have stayed in the present proceedings and, consequently, that I should be careful not to stifle an appeal which the Brides have a right to pursue, but it does seem to me that nothing has been raised by the Brides which reveals even the slightest prospects of success in challenging those conclusions of the learned Acting Master.
The position does not stop there because counsel for the present plaintiff (the Commonwealth Bank) also submitted that all and any rights of action which the Brides may have had against the ABL, Peat Marwick Mitchell, the managers or receivers or others associated in enforcing the bank's securities had become vested in the Brides' trustee in bankruptcy and that there was nothing to show that they had ever been validly reassigned to the Brides. Counsel for the Commonwealth Bank also submitted that any such rights of action had been discharged by the deed of compromise between the trustee, the bank and the receiver managers of 19 August 1986. I consider that this submission is correct and again Mr and Mrs Bride come up against the facts that all the personal rights of action which they wish to assert have been vested in their trustee in bankruptcy, and that as there is no proof of any reassignment of those rights of action, any such rights were discharged and released by the trustee under the deed of compromise and release of 19 August 1986 already described.
There is yet another answer to Mr Bride's contention that he and his wife were entitled to assert rights of action which became vested in their original trustee in bankruptcy from 1984 onwards. Any such rights, assuming contrary to the finding of Acting Master Chapman, which may have been assigned to Mr and Mrs Bride by the deed of assignment granted by Mr Putnin alone on 12 January 1995 would then have become the property of Mr and Mrs Bride. Subsequent to that date, however, each was again declared bankrupt by the sequestration orders made by French J in the Federal Court on 26 November 1997 and affirmed on appeal by the Full Federal Court in its decision of 23 April 1998 (WA G149 of 1997). By those sequestration orders all property then owned by Mr and Mrs Bride or to which they were entitled vested in the Official Trustee and this would have included any such right of action against ABL or others. Later discharge from that second bankruptcy would not result in the reassignment of any such rights of action to the Brides for reasons previously described. There is no plea, submission or any suggestion that the Official Trustee under the second bankruptcy in 1997 has reassigned any such rights to the Brides.

Lack of standing to enforce rights vested in trustee in bankruptcy or Official Trustee

The appeal from the decision of Parker J (FUL 104 of 2000) is, understandably, the principal proceeding which the present plaintiff seeks to have stayed as being vexatious. As it was an attempt to vindicate rights of actions which the Brides claimed were held by them on trust, as part of the assets of the Pinwernying Family Trust and therefore did not ever pass to any trustee in bankruptcy one could well be pardoned for querying why the history of the Brides' bankruptcy proceedings, the actions of Mr Putnin, the deed of discharge of 19 August 1986 and the alleged reassignment by the trustee to the Brides of rights of action against ABL and others has occupied so much attention in these proceedings. Surely, one might ask, any litigation which the Brides now seek to pursue, or to ventilate on appeal can only possibly advance interests held by them as trustees and which were never lost or diminished by anything which occurred in the course of the bankruptcies. If ever there was a distinction which is still important to maintain, the distinction between property and rights held by the Brides personally and beneficially, as distinct from rights which they held on trust for another or others must be within this category.
However, the point at which Mr Bride, apparently unwittingly, constantly blurs this distinction arrives when he submits that he should have been permitted to allege a case of fraud against ABL, Peat Marwick Mitchell and others in the proceedings before Parker J. He constantly returns, by various approaches, to the submission that the actions of the bank and of the receivers in enforcing the securities were fraudulent. He attempts to support that contention by submitting that the receivers and managers wrongly went into possession of the Oat Mill land on 9 August 1984 when they had no authority to do so. He submits that the bank and the receivers wrongly, and fraudulently asserted that the two companies conducted the business and that the assets of the business were subject to the securities granted by the companies when there was no reasonable basis for them to do so. From this he seeks to make a case that all actions taken by the bank, and the receivers and managers under the securities were fraudulent and can and should be set aside.
In the course of argument, and in answer to questions put by me, the possibility arose that any such alleged fraud might affect the deed of compromise and release made between the bank, the receivers and managers and the trustees in bankruptcy on 19 August 1986 and, therefore, constitute a basis for setting aside that deed, and, in the process, the mutual discharges and releases which it contains. On that hypothesis rights of action against the bank and the receivers and managers previously vested in the trustees of the 1984 bankruptcy might possibly revive and, if they could be assigned to the Brides, provide a basis for them asserting their claims against the bank and others. However, I am satisfied that any such potentiality in the present proceedings is entirely unreal and artificial. The Brides have never suggested in any of their previous actions, or indeed on the application to amend before Parker J, that there was any basis to allege invalidity or voidability of the deed of compromise of 19 August 1986. They have never attempted to do so. There is no evidence whatever to support any suggestion that Messrs Putnin and Campbell‑Smith were induced to execute that deed by fraud or any other conduct which might lead to the deed being set aside. No effort has ever been made to join the parties to the deed, Messrs Putnin and Campbell‑Smith and Messrs Young and Anderson to the proceedings before Parker J or in the proceedings before Chapman AM in order to advance a claim that the deed be set aside. There is simply no avenue for advantage to Mr and Mrs Bride in this hypothesis.
The insuperable difficulties which Mr and Mrs Bride face are that the securities which they gave to the bank, and which were enforced by the bank from 1984 onwards covered both property which they held on the terms of the Pinwernying Family Trust and property which they owned personally and beneficially without differentiating between the two categories of ownership. As the bank held valid securities over all the land, personal property and trust property it was entitled to proceed to enforce those securities according to law. The subsequent bankruptcies of the Brides' mean, as has been repeatedly held, that they cannot now advance any claims for damages or other relief arising from the conduct of ABL or by others in relation to property which they had held both personally and beneficially. They are limited to advancing claims solely affecting property which they held on trust and which did not vest in any trustee in bankruptcy.
In that regard, the rights, claims, actions or disputes in respect of which a discharge and release was given by Messrs Putnin and Campbell‑Smith under the deed of compromise of 19 August 1986 can only be in respect of rights of action, claims or other property which had vested in the trustees because of the 1984 bankruptcies. Nothing in the deed of release nor any controversy arising about what, if any, property was reassigned by a trustee in bankruptcy to the Brides affects any right of action which the Brides may have in their capacity as trustees of the Pinwernying Family Trust because such rights never vested in any trustee in bankruptcy.
While the controversies about whether or not the Brides have standing in their personal capacities to bring or pursue actions against ABL, the receivers and managers or others are not directly relevant to the determination of the claims which they advanced before Parker J as trustees, counsel for the plaintiff in the present application, drew attention to that conduct as illustrating a substantial history by the Brides of instituting and pursuing other litigation where there was never any prospect of them succeeding and, instituting other actions in attempts to circumvent that obstacle so engaging in collateral attacks upon binding decisions which had determined their lack of standing to pursue rights of action which had passed to their trustee in bankruptcy. It is only to that limited extent that the history of proceedings concerning attempts to exert personal rights of property may be examined in these proceedings and their ultimate significance will be examined later.

The significance of issues determined in earlier litigation

Counsel for the plaintiff has submitted that earlier decisions have resulted in conclusive and binding determinations adverse to the Brides on issues which they are seeking to advance in the litigation which is still current. By submitting that the Brides are attempting to advance claims which are res judicata or the subject of issue estoppel, the plaintiff contends that the Brides' conduct constitutes a collateral attack against earlier decisions binding upon them and, consequently, are vexatious and an abuse of the process of the court - Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502.
Res judicata will occur where a final judgment of a court of competent jurisdiction determines the cause of action between the parties. In that case the judgment of that Court will extinguish the cause of action advanced which is then said to have merged in the judgment so that no further proceedings may be brought between the same parties or their privies in respect of that particular cause of action - Blair v Curran (1939) 62 CLR 464 at 532. In addition, such an earlier judgment determines finally not only the ultimate issue in the case but, as well, all the issues of fact or law essential to support the decision reached - so producing an issue estoppel. Because of this any such issue of fact or law so determined between the same parties or their privies cannot afterwards be contested in later proceedings even where those other proceedings are in respect of some other claim or cause of action - Blair v Curran (supra) and Ramsay v Pigram (1968) 118 CLR 271 per Barwick CJ at 276. Essential components of both doctrines are the identity, respectively of the cause of action in a case of res judicata, or the issue of fact or law determined, in the case of issue estoppel, in the earlier and subsequent proceedings together with the decision or issue being determined between the same parties or their privies. That the parties to the earlier judicial decision or their privies must be the same as the parties or their privies to the proceedings in which the estoppel (or res judicata) is raised is an essential component of the doctrines has frequently been emphasised - Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 and, as explained by Barwick CJ in Ramsay v Pigram (supra):
"Long‑standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which the precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case."
And, in this respect, Dixon J said in Blair v Curran (supra):
"[a] judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the ground work of the decision itself, though not then directly the point at issue."
Consequently, for the doctrines of res judicata or issue estoppel to apply in relation to the causes of action which the Brides seek to advance in the pending proceedings it is necessary for the plaintiff to show that the causes of action or the issues involved were previously determined between the same parties or their privies. If earlier determinations were between different parties who are not privies of the parties to the current litigation, or if the issues determined were materially different the doctrines will not apply.

That litigation was brought by Mr Bride personally and did not include Mrs Bride as a co‑plaintiff although, as the evidence now discloses, she was a former co‑owner of the two properties with him. Before Malcolm CJ, Mr Bride alleged that he was acting as trustee of the Pinwernying Family Trust although it is now established that these lands were owned by himself and his wife personally. Presumably, for that reason, no issue arose (as it otherwise might have) about whether the right to initiate and pursue such a claim had vested in the trustee in bankruptcy. Mr Bride subsequently sought an extension of time within which to appeal against the orders of Malcolm CJ to the Full Court. The Full Court refused this application but dealt with the matter on its merits concluding that there was no basis shown for any of the claims asserted in the caveats. In the Full Court the matter was dealt with on the basis that the two parcels of land had formerly been owned by Mr and Mrs Bride either personally or as trustees of the Pinwernying Family Trust. For these reasons, therefore, I do not consider that the fact that the judgment of Malcolm CJ formally dismissed only a claim to the land made by Mr Bride prevents the decision from being a res judicata against Mrs Bride because she had an identical interest in the claim and nothing has been, or in my view could be, suggested to distinguish her position from that of Mr Bride's or to demonstrate that she was not his privy in this respect.
Even so, this was not the end of Mr Bride's attempts to maintain caveats against the lands transferred to Southern Rolled Oats Pty Ltd after the mortgagee sale. Mr Bride lodged further caveats advancing similar claims to these two parcels of land and when Southern Rolled Oats Pty Ltd made another application to remove these new caveats he contended that he was permitted to lodge them because, since the decision of Malcolm CJ, he had discovered fresh evidence to support his claims of fraud. A series of cases then followed concerning how the judgment and orders of Malcolm CJ might be set aside on the grounds of alleged fraud - see Bride v Southern Rolled Oats Pty Ltd, unreported; FCt SCt of WA; Library No 960564; 18 September 1996, per Pidgeon, Franklyn and Walsh JJ and an order for specific discovery was made by the Full Court in Bride v Southern Rolled Oats Pty Ltd, unreported; FCt SCt of WA; Library No 970235; 15 May 1997 per Wallwork, Parker and Heenan JJ.
However, on 4 November 1997 Wheeler J in Southern Rolled Oats Pty Ltd v Bride & Anor, unreported; SCt of WA; Library No 970572; 4 November 1997 ordered the removal of the new caveats and granted an injunction against Mr Bride restraining him from lodging any further caveat against the land until further order. In her decision Wheeler J concluded that there was no fresh evidence, that there had probably been an issue estoppel previously established between Southern Rolled Oats Pty Ltd and Mr Bride determining that, as between those two, it had been established that Southern Rolled Oats Pty Ltd was to be considered a bona fide purchase for value without notice of the lands acquired at the mortgagee's sale but that, in any event, there was no evidence to support the claim asserted by Mr Bride in his new caveats over the lands. An appeal from that decision to the Full Court was dismissed on 18 December 1998 by a court comprising Kennedy, Wallwork and Heenan JJ (Library No 980740). An application for special leave to appeal from that decision was also refused by the High Court of Australia (McHugh and Kirby JJ) on 21 October 1999.
In my opinion the persistence by Mr Bride in lodging caveats over the Oat Mill land and the Stockfeed land, claiming a proprietary interest in them, after the initial caveats had been discharged by the order of Malcolm CJ, and by his assertions that fresh evidence had been found to show fraud against Southern Rolled Oats Pty Ltd does constitute a wrongful purpose in attempting to challenge, without any reasonable cause, earlier decisions of this court bearing on the indefeasibility of the title acquired by Southern Rolled Oats Pty Ltd. Those proceedings, at least after all rights of appeal against the decision of Malcolm CJ had been exhausted, were in my opinion an abuse of the process of the court and vexatious.

The position of Peat Marwick Mitchell

Leaving out of account any history of the interlocutory applications and interlocutory appeals by Mr and Mrs Bride as trustees against Peat Marwick Mitchell in action CIV 1804 of 1989 (one of the actions tried before Parker J and determined by the decision of 12 May 2000 now under appeal in FUL 104 of 2000), the only other material litigation concerning Peat Marwick Mitchell to which my attention was directed was that which led to the decision of the Full Court in Bride & Anor v Peat Marwick Mitchell [1989] WAR 383.
In 1987 Mr and Mrs Bride commenced an action in this Court alleging misconduct by Messrs Young and Anderson as partners of Peat Marwick Mitchell, when acting as receivers and managers appointed by ABL of the secured properties on 9 August 1984. In the course of a strike out application the learned Master concluded that any cause of action asserted had vested in the Bride's trustee in bankruptcy and that the plaintiffs had no standing to sue. An appeal to the Full Court from that decision was taken and the Brides were allowed an opportunity to amend the statement of claim and to bring evidence before the Full Court to support their claim that there were trust assets (not vested in the trustee in bankruptcy) in respect of which these causes of action would lie. The Brides provided the Full Court with a fresh draft statement of claim alleging negligence, fraud and trespass by the receivers and managers and asserting that they had aided and abetted criminal actions of the bank. They relied on s 116(2) of the Bankruptcy Act to reveal their standing and also submitted that they had acquired standing under the terms of the deed of compromise of 19 August 1986 which, so they submitted, had been executed with the common intention that it would not operate to the prejudice of the rights of the Brides then vested in their trustees against the bank or the receivers and managers. Those submissions were rejected and the appeal dismissed on the grounds that the causes of action sought to be advanced were in respect of rights which had all vested in the Brides' trustees in bankruptcy and there was nothing in the deed of compromise to any contrary effect.
This decision plainly gives rise to a res judicata as between the Brides, Peat Marwick Mitchell, Young and Anderson in relation to any claims proposed by the Brides against that firm of accountants or the former receivers and managers made in respect of the enforcement of the securities of ABL over property owned personally and beneficially by Mr and Mrs Bride or by either of them. It does not, however, so operate or in any way prevent any action of that kind brought by the Brides against Peat Marwick Mitchell in respect of the actions of Young and Anderson with regard to property held by the Brides in their capacities as trustees of the Pinwernying Family Trust. It was, therefore, open for the Brides to proceed with action CIV 1804 of 1989 as they did and to institute an appeal from the decision of Parker J in that case as they have. Whether pursuance of the appeal would be vexatious because it lacks any reasonable prospect of success or for any other reason is another matter which I have been addressing in these reasons.
In this regard I can only restate my earlier findings that, despite the fact that the issue has not previously been formally decided in any proceedings other than by the judgment of Parker J in action CIV 1804 of 1989 which is now under appeal, nothing whatever has been shown by the Brides which would substantiate any of their claims against Peat Marwick Mitchell (with the important exception of the claim for trespass), in respect of the validity of the appointment of Messrs Young and Anderson as receivers of the trust lands by ABL on 23 August 1984 or in relation to fraudulent conduct concerning the sale of the lands under the bank's mortgage (which, as previously described, Parker J found to have been sold by the bank and not by the receivers or managers).
It is unnecessary to consider the authority or position of the receivers and managers in relation to the businesses operated by the Brides or in relation to the non‑trust land because no claim by the Brides can be maintained in respect of them as was decided by the Full Court in May 1989.
I can see, however, how the amount of the award of damages of $500 for the trespass to the Oat Mill land by Messrs Young and Anderson for which Peat Marwick Mitchell are liable, during the period 9 ‑ 22 August 1984 might be a judgment which Mr and Mrs Bride may wish to challenge on appeal but the minute of proposed amended notice of appeal does not appear to challenge that finding or that judgment.
I can also appreciate how Mr and Mrs Bride desire to challenge the finding of Parker J that the receivers and managers were validly appointed over the land by the bank by its notice of 23 August 1984. If they could establish their submission that there was no such valid appointment by the notice of 23 August 1994, that might give rise to a further period in which the receivers and managers were trespassers. This finding is specifically challenged by ground 30/165 of their minute of proposed notice of appeal. The Brides also seek to challenge the finding that ABL was not involved in, or liable for the trespass by Messrs Young and Anderson during the period 9 ‑ 23 August 1984. So far as I can see from the materials there has been no prior decision or other finding which would preclude the Brides from raising those points on the appeal but, having regard to their history of bringing proceedings vexatiously on other occasions as previously identified in these reasons, counsel for the plaintiff submits that it is incumbent upon the Brides to point to some fact or circumstance which would tend to show that these points have some degree of merit or are at least arguable because, otherwise, lack of any reasonable ground to pursue them, taken in conjunction with the vexatious aspects of past litigation in which the Brides have been involved, should result in a declaration being made under s 4 of the Act which would extend to the whole of this appeal.
I consider that that submission should be accepted and that, having regard to all the circumstances mentioned, it is necessary for the Brides to be able to satisfy the court that there is at least some arguable controversy of fact or point of law which would make those aspects of their grounds of appeal reasonable. In this regard, however, I conclude that the Brides have failed in this task and that there is really nothing whatever to suggest that these aspects of the pending appeal could arguably succeed.
The only appointment by the bank of Messrs Anderson and Young as receivers and managers pursuant to mortgage C337514 which has ever been shown to have been made was the appointment of 23 August 1984. The circumstances leading to the erroneous notice of appointment signed by the receivers themselves of 9 August 1984 in respect of the Oat Mill land has been shown to have been due to the conduct of the receivers and managers themselves acting by mistake independently of the bank. I have previously explained how that finding means that the bank cannot have been regarded as being in possession of the Oat Mill land before 23 August 1984 and that, therefore, there was no possibility of the bank being obliged to give up possession and serve a new notice of default before a valid appointment of receivers could be made - thus excluding any application of the submission made by Mr Bride in reliance on the decision at first instance in Velcrete Pty Ltd v Melson (1995) 13 ACLC 799. It is for these reasons that I do not consider that these aspects of their desired appeal from the decision of Parker J in action CIV 1804 of 1989 can be regarded as having any reasonable ground.
All these observations apply equally to the position of Peat Marwick Mitchell and KPMG Hungerfords in action CIV 1090 of 2000 which is the subject of appeal FUL 3 of 2001 from the decision of Chapman AM of 18 December 2000. At this point it is necessary to recall that KPMG became a successor firm to Peat's and that in CIV 1090 of 2000, as Chapman AM noted at [20], the proposed amended statement of claim describes the second defendant (previously Peat Marwick Mitchell) as "Peat Marwick Mitchell, KPMG Hungerfords". Mr D J Young and Mr C C Fear were also joined as third defendants by the Brides in CIV 1090 of 2000 but Annexure "A" to Chapman AM's reasons shows that they were joined in their capacities as partners in Peat Marwick Mitchell or Peat Marwick Mitchell KPMG Hungerfords and so there is no material distinction between their positions and that of Peat Marwick Mitchell as a firm.

Vexatious Proceedings Restriction Act (2002)

In the light of these conclusions it is necessary at last to turn to the principles which must be applied in determining whether or not an order, or an order of a particular kind, should be made under s 4 of the Vexatious Proceedings Restriction Act.
The application of this relatively new legislation was examined in an earlier decision which I gave: Granich Partners v Yap [2003] WASC 206 and many of the issues arising in that case again appear in the present litigation. I will, therefore, make some extensive reference to the conclusions which I reached in Granich Partners v Yap (supra) but only after having regard to particular submissions made by counsel in the present litigation and to some other features in the Bride litigation which have not, even yet, been mentioned.
I accept the submissions advanced by counsel for the plaintiff that, in order to demonstrate an abuse of process, it is not necessary to show that the plaintiff has any ulterior purpose in bringing the proceedings if it emerges that the effect of bringing further proceedings is to re‑litigate an issue which has previously been conclusively determined between them or their privies - Smith v Linskills [1996] 1 WLR 763 and Bride v Anglo Australian Foods & Ors [2000] WASCA 124. Similarly, I accept that vexatious proceedings include those instituted or pursued without reasonable grounds and that, in that category, are to be found claims with unintelligible pleadings, appeals from striking out pleadings, misconceived or hopeless appeals, appeals which lack any legal basis and the institution of applications or proceedings which have absolutely no prospect of success: Attorney‑General v Burke (1997) 190 LSLJ 28 at 37 ‑ 49.
It is necessary to note that, as Mr Bride himself disclosed in the course of submissions, a number of the actions relied on by the plaintiff in support of its case to show that the Brides had initiated and pursued litigation vexatiously, were claims commenced in the Federal Court of Australia and transferred to this Court. The exact identity and number of these was not ever precisely stated. Additionally, many of the proceedings, including the actions determined by the judgments of Parker J and Chapman AM which are the subject of the two pending appeals, involved a scrutiny and consideration of the application of the Bankruptcy Act 1966 (Clth) when determining the nature and extent of the claims which the Brides could bring. This involved the court exercising federal jurisdiction and, once that occurs, the whole of the proceedings are determined in the exercise of federal jurisdiction conferred upon the court - Felton v Mulligan (1971) 124 CLR 367 per Barwick CJ at 373 ‑ 374; ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 per Gleeson CJ, Gaudron and Gummow JJ at [7] at 571 and Austral Pacific Group Ltd (In Liq) v Air Services Aust (2000) 203 CLR 136, but this notwithstanding the Vexatious Proceedings Restriction Act 2002 as a Western Australian statute applies to proceedings commenced or pending in this Court or in any other court in the State in its exercise of conferred federal jurisdiction by reason of s 79 of the Judiciary Act (1903) (Clth).
The relief sought by the plaintiff under s 4 of the Act is for an order or orders staying all the four sets of proceedings currently pending, including the two appeals to the Full Court and an order prohibiting the Brides from instituting further proceedings without the leave of the court or a tribunal as the case requires under s 6(1). Accordingly, if any such order is to be made staying further proceedings it is necessary to consider whether the stay should relate only to proceedings against the plaintiff, or ABL or any of its servants or agents, whether it should extend to proceedings which may be commenced against any of the parties named in the four proceedings which are still pending, or whether it should go even further and prohibit the Brides from instituting any proceedings against any person or body in any court or tribunal of the State.
As said in Granich Partners v Yap [2003] WASC 206 at [25] this legislation came into effect in this State on 18 September 2002. It repealed the Vexatious Proceedings Restrictions Act (1930) and, in the process, expanded the circumstances in which an order may be made affecting a vexatious litigant and it enlarged the class of applicants who could seek relief under the Act. An order under the new Act may now be made by the court on its own motion or on the application of the Attorney‑General, the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court or, with leave of the court, on the application of a person against whom another person has instituted or conducted vexatious proceedings; or by a person who has a sufficient interest in the matter. Under the earlier 1930 State Act only the Attorney‑General could make an application although the court had, and still retains, an inherent jurisdiction to grant an order staying proceedings to prevent an abuse of its own process.
In Granich Partners v Yap (supra) I also set out how proceedings may be vexatious according to an objective standard notwithstanding that they may not have been actively or intentionally instituted or pursued by the litigant for any of the identified or wrongful purposes mentioned in s 3 under the definition "vexatious proceedings". Proceedings will be vexatious by an objective standard, if they constitute an abuse of process of the court or are brought or pursued without reasonably ground or they are conducted in the manner set out in sub‑par (d) of the definition. I previously held that the requirement for leave to be obtained by a private applicant, who can be presumed to be acting in the protection of his, her or its own interests, is clearly to allow the court to ensure that such applications are not used as instruments of oppression or as tactical exercises between adversaries. I observed that the 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. At [34] I concluded that in an instance where a private litigant was seeking the exercise of this jurisdiction in its favour:
"Nevertheless, the need for leave to be granted to a private applicant will be satisfied if it is shown that the applicant is seeking the statutory relief primarily for the alleviation of an unjustifiable or exceptional burden which the litigation brought or pursued by the respondent has caused and not just as an additional means of preventing that applicant from having to answer before the courts at the suit of a person seeking to obtain relief at law for some real or imagined wrong, even if it should turn out that the claimant's case will probably fail. In other words, this is not a remedy intended or available to achieve a stay or to prevent the institution of the ordinary run of litigation, rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice."
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. I again draw attention to the observations of Kirby J in Re Attorney General (Clth); Ex parte Skyring (1996) 70 ALJR 321 at 323.

Despite the fact that the pending litigation brought by the Brides in courts of this State involves or may involve the exercise of federal jurisdiction, that does not restrict the powers of this Court to grant orders under this Act. Any such order will apply only to the defendants' pursuit of rights of appeal or other remedies within the courts or tribunals of this State: Attorney General v Michael [1999] WASCA 181 per Anderson J at [124] and Attorney General v Keating [2000] WASC 93 at [50]. As for the meaning and range of application of the definition of "vexatious proceedings" contained in s 3 of the 2002 Act I adopt and repeat the observations which I made in that regard in Granich Partners v Yap (supra) at [46] ‑ [47].
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 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.
This appears to be the first occasion under this new legislation when an application for an order staying proceedings has been sought in respect of pending appeals to the Full Court. 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.
Generally, therefore, I consider that a single Judge exercising jurisdiction under this Act should be disposed to allow the institution and pursuit of an appeal, which has been instituted as of right, even in cases where the Judge may entertain doubts or reservations about the prospects of success or the purposes of the appellant. After all, as previously noted, the appellate jurisdiction of this Court reposes in the Full Court, not in a single Judge, and therefore applications under this Act with respect to appeals can only result in stay orders or other restrictions if the vexatious nature of the proposed or pending appeal is clearly demonstrated. Even then, the court will have a discretion to refrain from making an order under s 4. Nevertheless, there will be instances where the institution or pursuance of an appeal will constitute a vexatious proceeding because, in the particular circumstances, the criteria specified in s 3 of the Act produce that conclusion.
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. In relation to those aspects of appeal FUL 104 of 2000 which are not an abuse of process in this sense, namely the claims for relief against ABL and Peat Marwick Mitchell with respect only to the actions taken in respect of trust lands which were subject to the bank's securities, and in relation to the proposed appeal from the refusal of Parker J to allow fraud to be pleaded with regard to the treatment of trust assets, I consider that the appeals have been instituted and are sought to be pursued without any reasonable ground and without any prospect of success. For those reasons, and I hope recognising the restraint which should be exercised before reaching such a conclusion, I am satisfied that the institution and pursuit of the two appeals by the Brides in all respects constitute vexatious proceedings.
I am satisfied that the plaintiff, the Commonwealth Bank of Australia, is a person which has a sufficient interest in the matter to bring an application under s 4(1) of the Act and that because of the effort, time, expense and disruption, not only to the court but to the parties to the appeals, which would be caused if they were to proceed that leave should be granted to the bank to bring the application. The interest of the Commonwealth Bank arises directly because it is a respondent to appeal FUL 3 of 2001 pending from the decision of Chapman AM, and as defendant in the District Court action No 2297 of 2002 concerning the liability for the rates due to the Shire of Katanning in respect of the Winery land. The Commonwealth Bank also, in my view, has a sufficient indirect interest because of its acceptance of responsibility for any obligations and liabilities of ABL and which, throughout these proceedings, makes it a privy of ABL. In this respect it is to be noted that in the District Court proceedings and in the proceedings before Chapman AM, Mr and Mrs Bride joined the Commonwealth Bank as a defendant on the basis that it was responsible for all or any material obligations of the ABL.
The question which now arises concerns the extent of stay orders or orders prohibiting the institution of proceedings which should be made under s 4 of the Act bearing in mind that this application is brought by a private litigant with a direct personal interest to protect. This gives rise to the question of whether or not any orders restraining the institution or pursuit of legal proceedings by Mr and Mrs Bride should be confined to proceedings against the plaintiff or against the parties to the four actions which are currently still pending. In this regard, however, I am satisfied that there is an additional element of public interest which has arisen because of the multitude of unsuccessful actions, applications and appeals which have been brought by one or both of the defendants in the past against defendants or respondents other than those who are parties to the four pending proceedings.
The unsuccessful litigation which the Brides have brought in the past involve not only the two banks, the former receivers and managers and the firm of which they are partners, but also includes another firm of accountants who prepared a valuation report of the Brides' businesses for ABL in 1984, Mr Stewart who had been appointed executive officer of the Brides' business at the insistence of the ABL. Also included in this category are the solicitors who had been advising Mr Bride, the solicitors who had acted for the bank in the enforcement of the securities and persons or corporations such as Southern Rolled Oats Ltd, the Pulfords, the Porters, Milne Feeds Pty Ltd who had purchased or become subsequent transferees of parts of the mortgaged property sold by the bank when exercising its powers as well as some others.
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. I will hear from the parties or their counsel, if desired, upon the precise terms of such an order.
This will mean, in 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. The order will not, however, prevent Mr or Mrs Bride from instituting other litigation about other matters quite separate and distinct from their disputes about the enforcement of the securities over their properties at Katanning. So, for example, if Mr or Mrs Bride ever desire to bring an action for damages for injuries alleged to have been sustained in some accident which they suffered or if they ever wished to take proceedings as a result of some commercial dispute quite dissociated from these past events they should be free to do so. In case there is any doubt or dispute over whether any proceedings which may in future be commenced by the Brides are subject to the terms of the prohibitions imposed by this order, there should be liberty to apply to a Judge of this Court for a determination of that issue.
It is also to be appreciated that if Mr or Mrs Bride do desire to commence any action against any person arising from or associated with the enforcement of the securities over the properties at Katanning following their defaults to the ABL in 1984 they have the right to apply for leave to institute such proceedings under s 6 of this Act.
The order should also contain a provision requiring the plaintiff to file an authenticated copy of the order in the Registry of the District Court of Western Australia to be placed on the file of that Court relating to action CIV 2297 of 2002, the Katanning rate's action, and for copies of the order to be placed on the files of this Court in relation to all actions or appeals involving the Brides pending in this Court at present.