Commonwealth Bank of Australia v Dennis

[2021] FCA 217

FEDERAL COURT OF AUSTRALIA

Commonwealth Bank of Australia v Dennis [2021] FCA 217   

Appeal from:	Application for extension of time and leave to appeal: Dennis v Commonwealth Bank of Australia [2020] FCCA 1313
File number:	QUD 177 of 2020
Judgment of:	REEVES J
Date of judgment:	3 March 2021
Catchwords:	CONSUMER CREDIT LAW – application for leave and for an extension of time to appeal a decision of the Federal Circuit Court of Australia – whether there was a satisfactory explanation for delay in filing application – whether there was sufficient doubt in the original decision to justify granting leave to appeal – both applications granted.
Legislation:	National Consumer Credit Protection Act 2009 (Cth)
Cases cited:	Dennis v Commonwealth Bank of Australia [2020] FCCA 1313
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	8
Date of hearing:	3 February 2021
Counsel for the Applicant:	Mr MD Alexander
Solicitor for the Applicant:	Gadens Lawyers
Solicitor for the Respondent:	The Respondent appeared in person

ORDERS

QUD 177 of 2020

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA

Applicant

AND:

SUSAN KAY DENNIS

Respondent

ORDER MADE BY:	REEVES J
DATE OF ORDER:	3 MARCH 2021

THE COURT ORDERS THAT:

1.The time fixed by r 35.13 of the Federal Court Rules 2011 (Cth) for the filing of the applicant’s application for leave to appeal be extended to, and including, 11 June 2020.

2.The applicant has leave to appeal from that part of the judgment of Judge Jarrett given on 26 May 2020 that permitted the continuation of the respondent’s claim under s 160D(1) of the National Consumer Credit Protection Act 2009 (Cth).

3.Costs are reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1. On 8 June 2020, Ms Dennis filed an application for leave to appeal the judgment of a Federal Circuit Court judge delivered on 26 May 2020 (Dennis v Commonwealth Bank of Australia [2020] FCCA 1313 (Dennis)). In that judgment, the primary judge dismissed Ms Dennis’ application filed 19 January 2018 save for her claim alleging a contravention of s 160D(1) of the National Credit Protection Act 2009 (Cth) (the Act).  I will refer to that claim hereafter as the “s 160D claim”. 

2. On 11 June 2020, the respondent, the Commonwealth Bank of Australia (CBA), filed the present application for an extension of time and for leave to appeal the primary judgment insofar as the primary judge failed to dismiss Ms Dennis’ s 160D claim.  Because both applications were opposed, programming orders were made directed to a hearing of them in March 2021. 

3. In January 2021, the CBA withdrew its opposition to Ms Dennis’ application and consented to leave to appeal being granted to her.  An order was made accordingly.  Nonetheless, Ms Dennis, as she is entitled to do, has maintained her opposition to the CBA’s present application.

4. In support of its application, the CBA filed and relied upon an affidavit by Ms Susan Forrest made 10 June 2020.  In opposition to the application, Ms Dennis filed and relied upon two affidavits that she has made: one dated 1 July 2020 and the other dated 28 September 2020.

5. On an application for an extension of time of the present kind, the usual principles require (a) a satisfactory explanation for the delay in filing the application and (b) for there to be sufficient doubt in the primary judgment to justify it being considered by a Full Court. 

6. As to the first consideration, the one day delay in filing the CBA’s application has been explained by Ms Forrest in her affidavit as a calculation error.  I accept that explanation.

7. As to the second consideration, the error that the CBA says the primary judge made occurred at [48]-[52] of Dennis where his Honour considered Ms Dennis’ s 160D claim.  That error is summarised in the CBA’s written submissions in this application in these terms:

   Ms Dennis was found to have not engaged the Act in a way that could avail herself of any relief. Notwithstanding such findings, his Honour then (in error so it is respectfully submitted) has found that statements made by the Applicant, “…may make out a case for contravention of s.160D(1) of the Act..”.

   (Emphasis in original)

8. It is inappropriate for me, in an application of this kind, to discuss in any detail the error that raises the doubt in the primary judgment sufficient for leave to be granted.  It suffices to say that, having read the critical paragraphs of the primary judgment a number of times, I am satisfied that there is sufficient doubt in the conclusions reached in those paragraphs to justify the continuation of Ms Dennis’ s 160D claim being considered by a Full Court.  I therefore make the following orders:

   1.The time fixed by r 35.13 of the Federal Court Rules 2011 (Cth) for the filing of the applicant’s application for leave to appeal be extended to, and including, 11 June 2020.

   2.The applicant has leave to appeal from that part of the judgment of Judge Jarrett given on 26 May 2020 that permitted the continuation of the respondent’s claim under s 160D(1) of the National Consumer Credit Protection Act 2009 (Cth).

   3.Costs are reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.

Associate:       

Dated:       21 April 2021