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

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”).
These are my reasons for making those orders.

A Brief History of the Matter

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.
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.
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”.
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.
Even if such an order was made, nothing was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1163
Decision Date: 17 August 2015

CaseChat Overview and Summary

In this case, Derrick, the plaintiff, sought an account information order from the St George Bank, the defendant. The plaintiff's application was made in the context of a broader dispute that was not detailed in the court's decision. The matter was heard in the Federal Circuit Court of Australia, where the bank opposed the application and argued that the proceedings were frivolous and vexatious. The court was tasked with determining whether the plaintiff's application for preliminary discovery was justified under the circumstances.

The court examined whether the plaintiff's application was frivolous and vexatious, considering the absence of evidence and the plaintiff's refusal to file a statement of claim and supportive documentary evidence. The court noted that the plaintiff had not filed the necessary documents and had not provided any evidence to support the claim for an account information order. The court concluded that the plaintiff's refusal to comply with procedural requirements and the lack of evidence amounted to the proceedings being frivolous and vexatious. Consequently, the court dismissed the plaintiff's application for preliminary discovery.

The court's decision emphasised the importance of procedural compliance and the necessity for a plaintiff to provide supporting evidence to substantiate their claims. The plaintiff's failure to file a statement of claim and documentary evidence, coupled with the absence of any evidence to support the application for an account information order, led the court to find the proceedings to be frivolous and vexatious. As a result, the plaintiff's application was dismissed, and no further orders were made regarding the account information order sought.

Orders