Derrick v St George Bank (No. 2)

[2015] NSWSC 1163

Supreme Court

New South Wales

Medium Neutral Citation:	Derrick v St George Bank (No. 2) [2015] NSWSC 1163
Hearing dates:	17 August 2015
Date of orders:	17 August 2015
Decision date:	17 August 2015
Jurisdiction:	Common Law
Before:	Wilson J (as Duty Judge)
Decision:	1. The plaintiff’s summons filed on 2 June 2015 is dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005. 2. The plaintiff’s Notice of Motion of 25 June 2015 is dismissed. 3. The plaintiff is to pay the defendant’s costs of these proceedings, on an ordinary basis.
Catchwords:	PRACTICE AND PROCEDURE – civil – summons - plaintiff seeking account information from bank – preliminary discovery – whether the proceedings are frivolous and vexatious – absence of evidence - plaintiff’s refusal to file a statement of claim and supportive documentary evidence
Legislation Cited:	Uniform Civil Procedure Rules 2005
Cases Cited:	Airservices Australia v Transfield Pty Ltd (1999) 164 ALR 330 Derrick v St George Bank [2015] NSWSC 880 Hooper v Kirella Pty Ltd (1999) 96 FCR 1 Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536
Category:	Principal judgment
Parties:	Oliver K J Derrick (plaintiff) St George Bank (defendant)
Representation:	Solicitors: Mr O Derrick (self-represented) Mr D Zabow (defendant)
File Number(s):	2015/63487
Publication restriction:	None

Judgment

1. This morning I made orders dismissing a summons filed by the plaintiff, Oliver Derrick, on 2 June 2015, and awarding costs in favour of the defendants, the St George Bank (“St George”), and its principal, the Westpac Bank (“Westpac”).

2. These are my reasons for making those orders.

A Brief History of the Matter

3. The plaintiff’s claim to this Court for relief against St George has some considerable earlier history, in other jurisdictions and by other mechanisms of redress.

4. Mr. Derrick’s claim is based upon his conviction that St George holds a substantial sum of money that, in the nineteen nineties, he believes that he deposited with the bank. Although the evidence filed with this Court by Mr. Derrick to date is somewhat confusing, the plaintiff contends that he deposited monies with the bank, in or before 1995 which was held in an account in his name (at [3] of the plaintiff’s affidavit sworn 2 June 2015). He claims that the bank retains this money but refuses to acknowledge the existence of the account or the funds held therein.

5. Since the plaintiff has no documentation connected with any such account, he has been attempting for some time to have St George provide him with account records sufficient to complete what he describes as an “Unclaimed Money Form”.

6. There is a suggestion in the plaintiff’s affidavit of 2 June 2015 that he previously, in 1995, obtained an “order” from a judge of this Court requiring St George to search for and produce all relevant records, but there is no evidence of that other than the plaintiff’s assertion that such an order was sought or made.

7. Even if such an order was made, nothing was produced, and Mr. Derrick continued in efforts to gain access to records supporting his claim to hold a substantial sum in a St George account.

8. From about 2010 the plaintiff took up a complaint against St George (which by that time operated as a Division of the second defendant, Westpac) to the Financial Ombudsman Service (“the FOS”) about the failure of the bank to provide him with the records he sought. He in fact filed six complaints with the Ombudsman (affidavit of Lishien Ng of 10 August 2015).

9. During the currency of the various complaints to the FOS, St George wrote to the plaintiff on a number of occasions and advised him that the bank had no record of him opening any account prior to 6 June 2007. The bank also denied claims made by Mr Derrick to the bank and the FOS that St George was involved with an organised criminal group that was targeting him, or that it was part of a conspiracy to murder (affidavit of Ng).

10. In correspondence of 30 September 2010 St George advised the plaintiff that the first account ever opened by him with the bank had been opened on 6 June 2007 at a branch at Balmain. The bank denied in that correspondence that there was any record to confirm that Mr. Derrick had opened an account with St George in 1994 with a deposit of one million dollars.

11. Correspondence to similar effect was also sent on 15 March 2011 and 14 November 2011. Other correspondence addressed other complaints by the plaintiff, such as regarding fees said to have been wrongly charged.

12. Although the evidence is silent as to any earlier resolution by the FOS of the plaintiff’s various complaints to it about St George, on 22 May 2015 the FOS wrote to Mr. Derrick noting:

“As we have explained to you on a number of occasions, FOS will not consider your dispute. Our file remains closed and no further correspondence will be entered into in this matter.

[…]

Do not lodge any further disputes with FOS as they will be deleted as outside our Terms of Reference, not because we wish to be dismissive, but because our position has been made clear and will not change.” (Ex. B of proceedings on 29.6.2015 before Adamson J)

13. On 7 January 2015 Mr. Derrick commenced action against St George in the Local Court of New South Wales, evidently seeking the same relief as that claimed before this Court.

14. During the currency of those proceedings St George again wrote to the plaintiff advising him that there were no records of an account opened by him in 1994 or 1995, with the earliest account in his name held with the bank dating to June 2007.

15. On 5 March 2015 the Local Court dismissed Mr. Derrick’s summons (affidavit of Ng).

16. On 2 June 2015 the present summons was filed by the plaintiff.

17. On 25 June 2015 Mr. Derrick filed a Notice of Motion (“NOM”) in which he asked the Court to make orders requiring St George to search its records, including records from 1995 and records relating to “frozen” or otherwise inactive accounts.

18. In correspondence sent to the plaintiff on 26 June 2015 by legal representatives for St George, the defendant repeated its earlier advice to Mr. Derrick that no records of any account opened by him prior to June 2007 existed, and nor was there any document or information to establish that the bank held $40,000,000.00 in funds owned by him.

19. St George offered in that correspondence to provide that information to the plaintiff by way of a statutory declaration, with the Supreme Court proceedings to be dismissed without any orders as to costs. That offer was not accepted by Mr. Derrick.

20. The matter was listed before the Common Law Registrar on 29 June 2015 for directions. On that date the plaintiff filed a NOM asking the Court for referral for pro bono legal representation. The motion was heard that day by Adamson J. Her Honour declined to make the orders sought by Mr. Derrick: Derrick v St George Bank [2015] NSWSC 880.

21. When the matter was returned to the Registrar for directions, the Registrar made an order directing Mr. Derrick to file and serve a Statement of Claim relevant to his asserted claim against St George for $40,000,000.00, by 27 July 2015.

22. On 8 July 2015 the plaintiff had a subpoena issued upon St George seeking production of records relevant to the plaintiff “between 1995 and 1998”. The bank responded with correspondence to the Court on 14 July 2015 advising that there was nothing to produce in response to the subpoena.

23. On 11 August 2015 the plaintiff filed a further motion, and affidavit in support, seeking to have the orders of the Registrar of 3 August 2015 set aside.

The Plaintiff’s Summons and the Defendant’s Motion

24. The summons filed by Mr. Derrick on 2 June 2015 seeks relief in these terms:

“Account information the bank holds outside the jurisdictional limit of 7 years as a matter of practice.

The Plaintiff seeks Account information from the defendant to refund a quantum amount of money approximately $40,000,000.00 or more.”

25. Prayer 1 seeks the same information that the plaintiff sought to obtain through the FOS, by unsuccessful action in the Local Court, and by service of subpoena issued from the Registry of this Court.

26. Prayer 2 seeks account information to permit claim for payment, or “refund”, of a substantial sum. There is no evidence before the Court as to how that sum is said to be owed by St George to the plaintiff, or how the figure may have been calculated.

27. Mr. Derrick’s NOM of 11 August 2015 asks that the orders made by the Registrar be “discharged” and, further, orders made to require St George to provide evidence of the nature of searches made of its records, the qualifications of the person who made any searches, and an order for a fresh search of the bank records to be made. A final order sought by Mr. Derrick is for a declaration that St George is

“[…] in contempt of court if they continue to interfere with or undermine the authority, performance, or dignity of the courts or those who participate in their proceedings, - Non Compliance.”

28. By NOM filed on 19 August 2015 the defendant seeks orders dismissing both the plaintiff’s motion of 25 June 2015 and the summons of 2 June 2015, with costs.

29. The defendant relies upon an affidavit of Lishien Ng of 10 August 2015 and a number of annexures to the affidavit. That affidavit sets out the long history of the plaintiff’s action, and points out that the plaintiff has not complied with the orders of the Registrar by filing and serving a Statement of Claim.

30. In submission to the Court Mr. Derrick provided two reasons for his failure to file and serve a statement of claim as directed by the Registrar. He said that he had experienced some difficulty in finding the appropriate form to complete and, of the forms that he had seen on the Court’s website, he believed them to be such as to “entrap” him should he complete and file them. He was therefore unwilling to file a statement of claim as directed.

31. It appears that Mr. Derrick believes that, in directing him to file a claim the Registrar was acting as a co-conspirator of St George, and endeavouring to somehow trap him. It is not at all clear what trap Mr. Derrick feels the Registrar may have trying to lure him into on the bank’s behalf.

Consideration

32. Having examined the history of the matter, and the evidence filed by both parties, the Registrar was clearly doing no more than attempting to advance the matter so that it could be expeditiously dealt with. The orders were proper and sensible in all of the circumstances. Certainly there is no basis upon which to conclude that the orders were made as a consequence of a conspiracy with the defendant, or as a means of tricking the plaintiff.

33. Without a statement of claim neither the Court nor the defendant can know what the action is that the defendant is required to meet. Without any supporting evidence there is nothing before the Court capable of establishing that St George ever held any monies on the plaintiff’s behalf (whether the sum be one million or forty), or that it has unlawfully disposed of such monies.

34. Even without access to records the plaintiff believes to be held by St George, the plaintiff should be able to prepare a statement of claim and supporting affidavit. He should be in a position, for example, to give some information as to the source of the funds he claims were deposited by him and when and how the funds came into his possession; the form the funds took, such as a cheque made payable to the plaintiff, or cash, or a transfer from another financial institution; he should be able to provide some more precise information as to quantum, whether it be one million dollars or “forty million or more”; and he should be able to provide some detail as to the opening of the account, including an approximate date somewhat narrower than “1994”, “1995”, “1994 – 1995”, or “between 1995 and 1998”.

35. I am unable to understand the plaintiff’s contention that in complying with the Registrar’s orders and filing a claim and evidence in support he will in some way be “entrapped”.

36. Whilst there is a basis upon which a plaintiff may seek preliminary discovery, and a court may make orders for such discovery, the plaintiff’s application falls outside the bounds of what is envisaged by the Uniform Civil Procedure Rules 2005.

“5.3 Discovery of documents from prospective defendant

(1)   If it appears to the court that:

(a)    the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b)    the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c)    inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2)    […]

(3)    Unless the court orders otherwise, an application for an order under this rule:

(a)    must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b)    must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

(4)    […]”

37. Whilst r 5.3 enables an applicant who believes he or she may have a cause of action against another person to require that other person to give discovery and produce for inspection relevant documents, the court can only grant such an application where the applicant “may be entitled to make a claim for relief from the court”.

38. In this case, there is nothing before the Court to establish that the plaintiff may have any legitimate claim against St George for the return of monies he asserts were deposited by him with the bank. The evidence filed by the plaintiff does no more than assert that he deposited a sum of money with the bank, at some stage in the nineteen nineties, in circumstances where he has no documentary or other evidence to support his assertion. How a 15 or 16 year old boy (as the plaintiff would have been at around this time) would have such funds, and would personally open a bank account to manage them is not explained.

39. On the contrary, the evidence filed by the plaintiff is confused and contradictory, and makes some assertions of fact that are unlikely to say the least. For example, at [2] of his affidavit of 2 June 2015 the plaintiff asserts that

“I banked my finances within St George bank, at a non-commercial level, When my privacy was breached, citizens tried to join St George bank to refuse me access to the money I had saved, I turned to the local and supreme court to win back access to my money.”

40. Although the plaintiff referred to the funds being saved by him and in an account in 1995, he later refers to funds saved by him “from” 1995. In other motions and supportive affidavits, there are references to the deposit of funds in 1994, 1995, both of these years, or between 1995 and 1998. There are references to the monies being in an amount of one million dollars, or forty million dollars, in dollars (presumably Australian), or in both dollars and pounds sterling.

41. The plaintiff referred to a judge of this Court making orders for discovery in 1995; there is no record of orders of that nature having been made.

42. There is other evidence before the Court filed on behalf of the defendant that appears to establish that the plaintiff has complained to the FOS that the St George Bank is or was in league with organised criminal groups to murder him. That claim can have no more immediately apparent legitimacy than his assertion in submissions before me that the Registrar was allied with the bank to entrap him in some way.

43. Whilst an applicant need not establish that a prima facie case against the prospective defendant can be made out, he or she but must show more than the mere possibility of a claim: Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 (FCA) at [24]; Airservices Australia v Transfield Pty Ltd (1999) 164 ALR 330 at (FCA) [5]; Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [39].

44. The plaintiff’s unsupported assertion that he deposited an unquantified amount of money with the bank at an uncertain time, in circumstances where no records of such a deposit exist, does not establish that the plaintiff may have a claim against St George or Westpac such that discovery is warranted. I cannot conclude that those matters set out in rule 5.3(1)(a) have been made out.

45. Additionally, there is evidence which establishes that the documents the plaintiff seeks access to simply do not exist and almost certainly never did. The evidence is that the bank has conducted proper searches and nothing has been found which is capable of supporting the assertion that the plaintiff ever deposited a very large sum of money with St George. Accordingly, those things referred to in r 5.3(1)(b) cannot be satisfied.

46. For those reasons I refused to grant the plaintiff’s motion for preliminary discovery.

47. His claim against the bank for documents relating to the refund of $40,000,000.00 or more is not before the Court as a statement of claim properly particularised, and nor has the plaintiff filed any evidence which discloses a reasonable cause of action in that regard. There is no evidence to establish that St George has any relevant records.

48. The defendant asks the Court to dismiss the summons pursuant to r 13.4 of the UCPR. That rule provides,

“r 13.4 Frivolous and vexatious proceedings

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)    the proceedings are frivolous or vexatious, or

(b)    no reasonable cause of action is disclosed, or

(c)    the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)   The court may receive evidence on the hearing of an application for an order under subrule (1).”

49. The power for summary dismissal is not one to be lightly or capriciously used, as the dismissal of a claim without any hearing on the merits denies a plaintiff access to the courts and to the determination of a claim asserted.

50. In this case, however, three features of the matter have caused me to conclude that it is appropriate to dismiss the plaintiff’s summons in which he seeks documents relating to the deposit by him of a sum in excess of forty million dollars, from St George and Westpac.

51. The first is the complete absence of any evidence capable of even suggesting that the plaintiff may have a legitimate claim against either institution. To the contrary the evidence is contradictory, and the matters asserted by the plaintiff unlikely. Although evidence of it should be within the plaintiff’s knowledge, there is no evidence to support a conclusion that the plaintiff at age 15 or 16 years was in possession of a substantial amount of money, or that he ever made a deposit with St George Bank, leading to the existence of account records.

52. The second feature of the matter is the plaintiff’s refusal to file a statement of claim and supportive documentary evidence, on the basis of his belief that to do so would entrap him in some unspecified way. Without a litigant being willing to file documentation fundamental to initiating a claim and having that claim determined, the Court’s processes cannot be properly engaged.

53. The third feature is the fact that the plaintiff has already sought and been refused relief from the Local Court in the same or similar term as that sought from this Court. There is no application to this Court for any review of the Local Court’s orders in that regard.

49. Whilst I am not prepared to conclude that the proceedings are frivolous or vexatious or that they are an abuse of the court, because of the element of deliberation implied by those conclusions, I have concluded that Mr. Derrick’s claim does not disclose a reasonable cause of action against the defendants.

50. To allow this matter to proceed, in the absence of any evidence or information upon which to conclude that the action has some prospects, is to do no more than allow the parties to incur substantial legal costs, and the Court’s time to be diverted from more deserving matters.

Costs

56. The defendant sought an order for its costs.

57. Although I am troubled by the plaintiff’s capacity to pay any costs awarded against him, and I am conscious of the much greater capacity of large financial institutions to bear legal costs, I am also mindful of the defendant’s offer to the plaintiff to settle the matter by the provision of a statutory declaration from an officer of the bank as to the result of searches of its records, with no order as to costs.

58. In these circumstances, I am prepared to make an order in the defendant’s favour.

orders

1. The plaintiff’s summons filed on 2 June 2015 is dismissed pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005.

2. The plaintiff’s Notice of Motion of 25 June 2015 is dismissed.

3. The plaintiff is to pay the defendant’s costs of these proceedings, on an ordinary basis.

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Decision last updated: 17 August 2015