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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

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

CORAM: EM HEENAN J

HEARD: 8 OCTOBER 2008

DELIVERED : 29 OCTOBER 2008

FILE NO/S: CIV 1576 of 2002

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Applicant
AND
EDWARD JAMES BRIDE
First Defendant
WENDY MARGARET BRIDE
Second Defendant
EDWARD JAMES BRIDE and WENDY MARGARET BRIDE AS TRUSTEES OF THE PINWERYNING FAMILY TRUST
Third Defendants

Catchwords:

Vexatious proceedings - Application to rescind or vary orders staying existing proceedings - Effect of new proceedings against applicants - Vexatious Proceedings Restriction Act 2002 - Relevance of the outcome of independent proceedings touching the new litigation

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     No appearance
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:

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

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

Bride v Commonwealth Bank of Australia [2008] HCASL 446
Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225
Bride v Shire of Katanning [2003] WADC 92
Bride v Shire of Katanning [2007] WADC 116
Bride v Shire of Katanning [2008] WASC 131
Commonwealth Bank of Australia v Bride [2004] WASC 177
Fox v Star Newspaper Co Ltd [1900] A.C. 19
Humphrey v Collier [1946] VLR 391
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Phillips v Ellinson Bros Pty Ltd [1941] HCA 35; (1941) 65 CLR 221

EM HEENAN J: This application made by Mr and Mrs Bride personally, and additionally by them in their capacities as trustees of the Pinweryning Family Trust, has been brought pursuant to s 7 of the Vexatious Proceedings Restriction Act 2002 (WA) seeking an order for the rescission and/or variation of the order which I made in these proceedings on 17 August 2004 so as to allow them to:
(a)proceed with the prosecution of Full Court appeal FUL 3 of 2001 to hearing and determination by the Court of Appeal; and
(b)to allow the applicants to appeal from the orders of Registrar Kingsley in the District Court of Western Australia made on 23 April 2003 in District Court action 2297 of 2002.
By the order of 17 August 2004, both the appeal, namely, FUL 3 of 2001 and the District Court action number 2297 of 2002 were permanently stayed.
The applicants rely on matters deposed to in the affidavit of Mr Bride sworn 22 September 2008 and filed in support of the application, with six annexures. The basis for the application was also enlarged in the course of submissions made by Mr Bride at the hearing before me. Notice of the application was given by the applicants to the solicitors for the Commonwealth Bank of Australia (the bank). They have advised the court that their client does not wish to appear on the hearing of the application or to make submissions. Accordingly, there was no appearance on behalf of the bank.
This non‑appearance of the bank led Mr Bride to submit, in misplaced reliance on the judgment of Windeyer J in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 326, that I should direct that the bank be called three times outside the courtroom with a view to it being non‑suited if it then failed to appear. In making that submission I am satisfied that Mr Bride simply does not understand fully the rules of procedure or the niceties of a 'non‑suit application' in those jurisdictions where it may still be available or before the introduction of the Judicature Acts.
It is generally accepted in these jurisdictions where it is not expressly preserved by rules of court, that the non‑suit procedure was implicitly abolished by the Judicature Acts ‑ Fox v Star Newspaper Co Ltd [1900] A.C. 19; Phillips v Ellinson Bros Pty Ltd [1941] HCA 35; (1941) 65 CLR 221, 228 and Humphrey v Collier [1946] VLR 391, 404. This application, despite the title to the proceedings, which I shall address shortly hereafter, is not in the nature of an action, proceeding or suit between parties but, rather, is an application pursuant to the Vexatious Proceedings Restriction Act of which notice need not necessarily be given to other interested parties to former litigation although, in this case, it was. The bank is not a moving party and has no obligation to adduce any evidence. So, even if the former non‑suit procedure had still been available, it could not have been invoked on this occasion. I refused to have the bank called. The application proceeded and must be determined on its merits.
The originating process and other documents in this proceeding, including the order of 17 August 2004 all reveal, that the bank was the plaintiff in the proceedings seeking an order under s 4 of the Vexatious Proceedings Restriction Act 2002, that Mr Bride was the first defendant and Mrs Bride the second defendant and Mr and Mrs Bride as trustees of the Pinweryning Family Trust were the third defendants. That is not the way in which the present application has been titled which instead casts the Brides as the applicants. Nothing of any significance turns upon this minor irregularity. It is the case that although they were defendants in previous proceedings, Mr and Mrs Bride, both in their personal capacities and as trustees, are now the applicants for the present relief and the bank, although the respondent to the present application, remains the plaintiff in the original proceedings. This is why the title to these reasons for judgment, and the title to any order to be made hereafter, adhere to the original format rather than adopting the order and descriptions presented by the application and the affidavit recently filed by the applicants.
In the way in which the application was formulated, and as argued by Mr Bride at the hearing, it contained a dual character, which was often blurred and only incompletely appreciated by the applicant. First, in many respects, Mr Bride sought to reargue or challenge various findings and conclusions reached in my recent decision in this matter of 17 August 2004, Commonwealth Bank of Australia v Bride [2004] WASC 177, notwithstanding that all avenues of appeal from that decision have, by now, been exhausted ‑ see Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225 and Bride v Commonwealth Bank of Australia [2008] HCASL 446. Secondly, and more appropriately, Mr Bride sought to demonstrate that the present circumstances involved materially different considerations from those existing in 2003 ‑ 2004 when the order staying proceedings was made and that, because of those changes in circumstances, including, he would contend, the apparent realisation that one particular issue, which I shall term the 'mortgagee in possession issue' (which was one, but only one, feature of one of the actions which had been stayed) was not, despite some observations to the contrary in earlier proceedings, the subject of a res judicata.
No new description or narrative of the long and complicated litigation, with its many separate actions and proceedings, which led to the order on 17 August 2004 permanently staying certain proceedings involving the Brides and prohibiting them from instituting further proceedings against certain named parties of the nature described in that order, is presently necessary. The relevant history of the many proceedings is contained in my reasons for decision in [2004] WASC 177 and also, to a lesser extent, in the reasons of the Court of Appeal when dismissing the ensuing appeal. By the order of 17 August 2004, I permanently stayed four proceedings then pending in courts of this State, including the two which are now the subject of this fresh application. Those two are:
(a)Supreme Court of Western Australia appeal FUL 3 of 2001; and
(b)District Court of Western Australia action number 2297 of 2002.
I described the nature of those two proceedings in my reasons for decision in [2004] WASC 177 and that description is still sufficient for present purposes.
Supreme Court appeal FUL 3 of 2001
[9] This is a pending appeal by Mr and Mrs Bride, as trustees of the Pinweryning 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 Australian Bank Ltd, 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 [consolidated] actions (CIV 1570 of 1989 and CIV 1804 of 1989) heard and determined by Parker J.
[10] 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 (in 2003) 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 number 2297 of 2002
[11] This is an action commenced in August 2002 by Mr and Mrs Bride as trustees of the Pinweryning 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 redelivery 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' claim struck out, or summarily dismissed.
At the time of the hearing of the original application in this cause before me in 2003, that strikeout application in the District Court was still pending. However, on 23 April 2003 Registrar Kingsley in the District Court delivered his decision 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, Peat Marwick Mitchell and KPMG. This seems to have left the action pending against the Shire of Katanning but, as I explained later in [2004] WASC 177, that did not affect the outcome of the application then before the court.
In [96] ‑ [124] of my reasons for decision in [2004] WASC 177 I dealt, in considerable detail, with the reasons why I concluded that the appeals, then instituted and pending from the decision of Parker J in the two consolidated actions, CIV 1570 of 1989 and CIV 1804 of 1989 (the subject of the appeal formerly pending in the Full Court, FUL 104 of 2000) including his Honour's refusal to allow an amendment to introduce the allegations of fraud desired to be advanced by the Brides, were vexatious and should not proceed. There were many grounds for those conclusions and the reasons also canvassed why the proposed allegation of fraud which was the subject of the amendment, had no reasonable prospects of success.
Attention to the decision of Parker J after the trial of the consolidated actions is necessary because of the overlapping issues in those proceedings and in the proceedings which were the subject of appeal FUL 3 of 2001. The reason for this is that in the proceedings before Chapman AM (CIV 1090 of 2000 ,which became the subject of appeal FUL 3 of 2001) the Brides had sought to raise issues, including issues of alleged fraud, which had been sought to be raised by them in the actions which Parker J heard and determined and which were involved in the pending appeal from the decision of Parker J in FUL 104 of 2000. As I observed in [124] of my reasons for decision in [2004] WASC 177, the observations which led to the conclusion that the pending appeal from the decision of Parker J (FUL 104 of 2000) were vexatious and should be permanently stayed applied equally to the position of Peat Marwick Mitchell and KPMG Hungerfords, the bank and others in the proceedings before Chapman AM on 18 December 2000.
I shall not repeat the reasons given in my earlier decision for concluding that the issues desired to be raised by the Brides in the proceedings which Chapman AM dismissed were, except for the allegations of fraud, essentially the same as those raised before Parker J and determined by his Honour. The reasons why that is so are lengthy and involved and are set out in my earlier decision and, therefore, need not now be repeated. While the Brides' proceedings dismissed by Chapman AM also sought to advance allegations of fraud (which were not dealt with by Parker J because his Honour refused leave to amend to introduce allegations of fraud at that trial) the previous examination in my reasons for decision in [2004] WASC 177 detail why the desired allegations of fraud had no reasonable prospects of success and why the attempt to pursue them by the Brides was vexatious.
Nothing has changed in this respect, nor has Mr Bride sought to raise any fresh evidence or other circumstances which would justify me in taking a different approach to the determination of whether or not that appeal should have been stayed or whether the stay should continue. It is the case that, on many various grounds, Mr Bride has submitted that that appeal should not have been stayed and that my decision to do so was wrong. As to this, I can only say that I adhere to my former view and note that that my decision was directly challenged, but upheld, in the subsequent appeal to the Court of Appeal and that a further application to obtain special leave to appeal to the High Court of Australia from the decision of the Court of Appeal was refused.
Accordingly, I am satisfied that nothing has been demonstrated to justify or warrant me in varying or rescinding the order of 17 August 2004 insofar as that applies to the permanent stay of proceedings in FUL 3 of 2001.

District Court action number 2297 of 2002

This is the action which was dismissed by order of Registrar Kingsley on 23 April 2003 and which involved claims by the Brides as trustees, against the Shire of Katanning, the Commonwealth Bank of Australia, Peat Marwick Mitchell and KPMG seeking damages, an indemnity for Shire rates and land tax and re‑delivery of the title deeds to what is known as the 'winery land' at Katanning. I dealt with this action in [82] ‑ [86] of my reasons for decision in [2004] WASC 177. To recapitulate, that land was owned, and is still owned, by Mr and Mrs Bride as trustees of the Pinweryning Family Trust. In dealing with that District Court action I said, in my earlier reasons:
[84] In the course of submissions Mr Bride acknowledged that this action was brought in order to seek a determination that the bank, as mortgagee in possession (a role the bank denies) and not the Brides are responsible to the shire (of Katanning) for outstanding rates which have been raised against the property. This assertion may possibly be intended to extend to liability for land tax accruing in respect of the same property having regard to the submissions made by Mr Bride. This seems to be an action destined to fail because of the provisions of the Local Government Act 1995 (s 6.44; s 1.4) and the Land Tax Assessment Act 1976 (s 15 and s 5(1)) which impose the liability for rates and taxes upon the owner of the property. However, in the course of submissions it emerged that the real purpose for the Brides initiating this action was to renew allegations against ABL [the bank], Peat Marwick Mitchell, Stewart, Young and Anderson that the securities held by ABL over the winery land and its business assets, plant and equipment and stock were not valid and that the receivers and managers had acted unlawfully in taking possession of the property and in selling the plant, equipment and stock.
[85] This collateral purpose, acknowledged by Mr Bride in submissions, is sufficient in itself to conclude that the action is vexatious having been instituted and conducted to achieve a collateral and, therefore, wrongful purpose. In addition, however, the causes of action advanced against the Commonwealth Bank, and Peat Marwick Mitchell and KPMG are the same causes of action which were advanced against them or their privies in the proceedings before Parker J, thus giving rise to a res judicata and involved the same issues as were disposed of, or which necessarily are to be regarded as disposed of, by Parker J so as to continue an issue estoppel.
So it can be seen that one of the issues sought to be raised by the Brides in District Court action number 2297 of 2002 was the contention that from 27 January 1987, until later vacation by its agents, the bank was a mortgagee in possession of the winery land. That allegation was important to the Brides because, as Mr Bride explained in 2003, and has repeated in these proceedings, he contends that the bank, as alleged mortgagee in possession during that period, was exclusively liable to pay the shire rates (and government land tax) and, further, was negligent and acted in total disregard for the safety, security and maintenance of the property. His allegations in this respect can be seen from his statement of claim of August 2002 in the District Court proceedings, the relevant parts of which appear at pages 5 and 6 of Mr Bride's affidavit of 23 September 2008 filed in support of this application. It is also necessary to repeat that the bank has always denied that it was a mortgagee in possession of the winery land.
It is at this point that Mr Bride submits that there has been a material change in circumstances which not merely justifies, but which warrants, the order staying those District Court proceedings being set aside so that he can now seek to appeal, out of time, from the order of Registrar Kingsley dismissing that action. The basis for Mr Bride's submission in this respect is that he contends that, for the first time, it has been recently realised that the question of whether or not the bank was a mortgagee in possession of the winery land has never been finally determined in any proceedings between the Brides and the bank or its privies and, therefore, there is no basis for concluding that that issue is the subject of any res judicata.
For reasons which I develop below, I accept that that issue (the 'mortgagee in possession issue') has never previously been finally determined between the Brides and the bank or its privies and that it is not the subject of a res judicata. However, in my view, that does not mean that the District Court proceedings were not an abuse of process for distinct and independent reasons or that they should not have been stayed on the grounds that they were vexatious. For that conclusion to be fully comprehended, it is necessary to describe some of the developments which have occurred since my earlier decision in these proceedings and the order of 17 August 2004.
These matters are the subject of the decision of Martin CJ in Bride v Shire of Katanning [2008] WASC 131 delivered on 4 July 2008. They are further developed in the transcript of other proceedings between Mr Bride and the Shire of Katanning in this court heard before the Chief Justice in CIV 1821 of 2008 on 17 September 2008. That transcript can be found at pages 64 to 70 of the materials comprising the affidavit and annexures of Mr Bride in the current application sworn 23 September 2008.

These sources disclose that, since the decision in these proceedings in 2004, the Shire of Katanning has commenced a claim in the Magistrates Court seeking to recover outstanding rates and charges against Mr Bride in respect of the winery land. Mr Bride lodged a defence denying that he was in possession of the winery land when the rates and charges accrued and asserting that at all material times the bank was in possession as mortgagee. Thereupon the shire applied to strike out that defence on the grounds that it was an abuse of process because it raised an issue which had been decided in prior proceedings. The learned magistrate accepted the bank's submission and struck out Mr Bride's defence. Thereupon Mr Bride appealed to the District Court and, in a decision given by her Honour Judge O'Brien on 6 July 2007, that appeal was dismissed ‑ Bride v Shire of Katanning [2007] WADC 116.
Mr Bride then experienced a number of procedural difficulties in seeking to institute an appeal, or an application for leave to appeal, from the decision of Judge O'Brien in the District Court to this court but, leaving aside the procedural problems, his application came before the Chief Justice and was heard on 17 December 2007 and on 14 and 16 April 2008. For reasons which the learned Chief Justice later gave in Bride v Shire of Katanning [2008] WASC 131, his Honour reached several conclusions. The first of these was that my order of 17 August 2004 did not apply to the proceedings involving Mr Bride and the Shire of Katanning in the Magistrates Court, his District Court appeal or to any application in respect of an appeal to this court from the decision of O'Brien DCJ. There is nothing surprising about this conclusion because nothing in my order of 17 August 2004 purported to restrict the Brides from contesting a claim by the Shire of Katanning for rates in respect of the winery land for the period when the Brides were asserting, and the bank was denying, that the bank was a mortgagee in possession.
A second conclusion of Martin CJ in [2008] WASC 131 was that the issue of whether or not the bank was a mortgagee in possession of the winery land, during the period when the Brides alleged that it was, and which the bank denied, had never been finally or authoritatively determined in any proceedings between the Brides, the bank or its privies, despite being alluded to or mentioned in the actions determined by Parker J (CIV 1570 of 1989 and CIV 1804 of 1989); in the decision of Chapman AM in Bride v The Australian Bank Ltd [2000] WASC 310 (the subject of FUL 3 of 2001, stayed by my order of 17 August 2004); and by Registrar Kingsley in his decision to strike out District Court action number CIV 2297 of 2002 in Bride v Shire of Katanning [2003] WADC 92.
It is enough to say here that Martin CJ has convincingly demonstrated why 'the mortgagee in possession issue' is not the subject of a res judicata. As a result, Martin CJ granted Mr Bride an extension of time to appeal to the Court of Appeal from the decision of her Honour Judge O'Brien. The subsequent history is that the solicitors for the Shire of Katanning later consented to that appeal by Mr Bride being allowed, with the result that the order of Judge O'Brien in the District Court dismissing Mr Bride's appeal from the decision of the magistrate striking out his defence in the shire's action for rates was also allowed with the effect that the order of the magistrate was set aside. In short, Mr Bride was successful in asserting that he was entitled to defend the shire's claim for rates in the Magistrates Court on the grounds that the bank, and not he or his wife, were in possession of the winery land at the material time. Whether, at any trial, the shire will succeed in showing that it was the Brides who were in possession of the winery land at the material time or that, otherwise, they are nevertheless liable for rates accruing during the material time, will be a matter for determination in the Magistrates Court if the case proceeds.
Accordingly, there is nothing to prevent Mr and Mrs Bride from defending the shire's claim for rates for the period during which he asserts that the bank was a mortgagee in possession of the winery land, either in the proceedings in the Magistrates Court or in other proceedings between Mr Bride and the Shire of Katanning which might be commenced by the Brides or by the shire to raise that issue. It also follows that it is unnecessary, indeed superfluous, for any pursuit or determination of that issue between Mr and Mrs Bride and the Shire of Katanning, to vary or rescind my order of 17 August 2004 insofar as that applies to the stay of the proceedings in the District Court matter 2297 of 2002.
However, Mr Bride submits that the basis upon which I stayed District Court action number 2297 of 2002 in my decision of [2004] WASC 177, and the basis for Registrar Kingsley's decision to strike out his statement of claim in that action, was because the proceedings in the District Court were an abuse of process because they raised the 'mortgagee in possession issue' which, being res judicata, was impermissible.
Whatever may have led Mr and Mrs Bride to the conclusion that the District Court action was dismissed or stayed because the issue of a bank being a mortgagee in possession was wrongfully treated as being the subject of a res judicata is unnecessary to investigate or pursue because, even if Registrar Kingsley wrongly relied on that being the case when dismissing the action, that was not the reason for me staying the District Court proceedings. As emerges from [84] and [85] of my reasons in [2004] WASC 177, already quoted in these reasons at [16] above, it was clear that Mr Bride had sought to pursue the District Court action against the Shire of Katanning and others for the collateral purpose of renewing his allegations against the Australian Bank Ltd (ABL), Peat Marwick Mitchell, Stewart Young and Anderson concerning the securities held by ABL over the winery land so as to allege that the securities were not valid and that the receivers and managers had acted unlawfully in taking possession of the property and in selling the plant, equipment and stock.
Although Mr Bride at the recent hearing before me disclaimed that that had ever been his purpose in instituting or pursuing those District Court proceedings, the record in that respect clearly shows that it was, and I have made a finding about the existence of such a collateral purpose which has not been set aside by the subsequent appeal. In pressing his submissions in the hearing before me on this application, Mr Bride maintained that he would not be able adequately to determine the issues between himself and the Shire of Katanning in the rates claim unless he were permitted to bring in the bank, the receivers and managers or their agents, as he had attempted to do in District Court action 2297 of 2002. This, so he asserted, was because it was necessary for him to have determined issues concerning the validity of the bank's securities and the propriety of the actions which were taken to realise those securities.
This further disclosure only demonstrates that Mr Bride is still intent upon pursuing that collateral purpose and wishes to appeal from the decision of Registrar Kingsley so that he can prosecute District Court action 2297 of 2002. Mr Bride wishes to advance the many allegations contained in his statement of claim in that action against Peat Marwick Mitchell and KPMG and the bank's agents, Messrs Stewart, Young, Anderson and Fear, including allegations of unlawful appointment of receivers and managers, fraud by Peat's agents, trespass and indemnity for rates and damages for neglect of the secured property during the period of alleged possession as mortgagee.
I am satisfied that by attempting to continue with those allegations in District Court action 2297 of 2002, the Brides are acting vexatiously in the sense contemplated by the Vexatious Proceedings Restriction Act 2002 (s 3) notwithstanding that there has never been any authoritative determination of the issue of whether the bank, or the managers or receivers which it appointed, are liable to the Brides for alleged breach of duty while a mortgagee or agents of a mortgagee in possession of the winery lands.
The evidence which I examined in my decision of August 2004 demonstrated that the Brides had repeatedly brought vexatious proceedings and had instituted or pursued proceedings without reasonable grounds on many occasions. The fact that the Brides still wish to pursue the District Court action against the bank, the receivers and managers and others, a cause of action which has not been finally or authoritatively determined (the alleged liability of the mortgagee or agents of a mortgagee in possession) does not alter the fact that I am satisfied that the reality of the position is that the Brides desire to prosecute the District Court action for collateral purposes. That appreciation has only been strengthened by the submissions made by Mr Bride on the present application.
However, as said earlier, this present application is not the occasion to re‑examine the propriety of findings or conclusions which I made in the decision of August 2004 as this is not an appeal from that decision. While it is the case that the proceedings before Martin CJ in [2008] WASC 131 and the subsequent concession of the appeal by the Shire of Katanning may have dispelled the mistaken view reached in the Magistrates Court in the shire's action and on the appeal to the District Court, that the issue of whether or not the bank was a mortgagee in possession was the subject of a res judicata, that was not the basis for my conclusion that District Court action 2297 of 2002 was vexatious and should be stayed. I did regard, and still regard, those proceedings in the District Court as vexatious and an abuse of process but not because the issue of whether or not the bank was a mortgagee in possession was the subject of a res judicata.
Accordingly, I am of the view that there has been nothing demonstrated to justify or require any rescission or variation of the order of 17 August 2004 as sought by Mr and Mrs Bride in this application. The result is that the application must be dismissed.