Donnelly v Australia and New Zealand Banking Group Ltd

[2016] NSWCA 167

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Donnelly v Australia and New Zealand Banking Group Ltd [2016] NSWCA 167

Hearing dates:

8 July 2016

Decision date:

08 July 2016

Before:

Basten JA, Sackville AJA

Decision:

(1)   Dismiss the application for leave to appeal.

 

(2)   The applicant to pay the Bank’s costs of the application, to be assessed on an indemnity basis.

 

In relation to the application that the applicant’s counsel, Mr Ryan, personally indemnify the Bank with respect to its costs:

 

(3)   The respondent is to file and serve written submissions, including a statement as to whether the application is pursued, by Friday, 15 July 2016.

 (4)   Applicant to file and serve written submissions in response by Friday, 29 July 2016, including if oral argument is sought, the reasons for a hearing.

Catchwords:

APPEAL – application for leave to appeal – judgment below involved application to review an interlocutory decision made in the course of a trial in the Equity Division – trial followed by unsuccessful appeal – appeal followed by unsuccessful application for “judicial review” – second application for “judicial review” rejected – proceedings misconceived

Cases Cited:

Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760
Donnelly v Australia and New Zealand Banking Group Ltd (unreported, 13 May 2015, Equity Division)

Category:

Principal judgment

Parties:

Fiona Marie-Therese Donnelly (Applicant)
Australia and New Zealand Banking Group Ltd (First Respondent)
ANZ Asia Ltd (Second Respondent)

Representation:

Counsel:
Mr K J Ryan (Applicant)
Mr J Foley (Solicitor) (Respondents)

  Solicitors:
Gadens Lawyers (Respondents)

File Number(s):

2016/111690

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2016] NSWSC 263

Date of Decision:

15 March 2016

Before:

Pembroke J

File Number(s):

2015/370460

Judgment

1. THE COURT: The applicant seeks leave to appeal from an ex tempore judgment of a judge of the Equity Division, Pembroke J. [1] The primary judge granted a motion filed by the present respondent (ANZ) for summary dismissal of the applicant’s summons. The summons sought what it described as “judicial review” of an interlocutory decision made by Stevenson J on the third day of a hearing which occurred as long ago as November 2013.

   1. Donnelly v Australia and New Zealand Banking Group Ltd [2016] NSWSC 263 (Primary Judgment).

2. Stevenson J upheld ANZ's claim for possession of a property that was the subject of a mortgage by the applicant and her husband to ANZ. [2] His Honour also made orders requiring the applicant to pay moneys due under the mortgage. On the third day of the four day hearing, Stevenson J refused an application on behalf of the applicant to amend her defence. It is that interlocutory decision that has been challenged in the application for "judicial review" determined by the primary judge.

   2. Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760.

3. The primary judge set out what he described as the "tortured history” of these proceedings. [3] It is unnecessary to set out the detailed history. However, it includes the applicant's unsuccessful appeal to the Court of Appeal against the decision of Stevenson J and her unsuccessful application for special leave to appeal to the High Court. The history of the litigation shows that the applicant has made repeated and unsuccessful attempts to challenge various aspects of Stevenson J's decision, including challenges to his Honour's refusal to permit the applicant to amend her defence.

   3. Primary Judgment at [19].

4. The summons heard by the primary judge is the second application by the applicant for so-called “judicial review” of Stevenson J's decision. The first such application was summarily dismissed by Darke J on 13 May 2015. [4] His Honour described the proceedings, in so far as they sought judicial review of the judgment and orders of Stevenson J, as "plainly misconceived and bound to fail". Darke J also rejected the applicant's claim that ANZ procured the decisions of Stevenson J by fraud, finding that this claim was doomed to fail.

   4.    Donnelly v Australia and New Zealand Banking Group Ltd (unreported, 13 May 2015, Equity Division).

5. The applicant's principal complaint in her current application appears to be that Pembroke J did not deal with the contention that Stevenson J's refusal to permit the amendment to her defence involved a denial of procedural fairness, was “groundless” and resulted in a miscarriage of justice. It also appears to be suggested that the interlocutory decision was a product of bias or apprehended bias. In fact the primary judge did address the complaint. His Honour pointed out that the Court of Appeal had dealt with the merits of the proposed amendment and rejected the applicant's contentions. His Honour observed that the Court of Appeal's finding carried with it:

"[t]he conclusion that Stevenson J was justified in refusing leave to amend, and that if leave to appeal had been granted the ground of appeal would have failed". [5]

5. Primary Judgment at [11].

6. The current application for leave to appeal encounters two obstacles. The first is that, as two judges of the Equity Division have pointed out, the remedy for correcting any error by a trial judge in the course of proceedings is by way of appeal or an application for leave to appeal from the decision, not by way of an application for judicial review brought more than two years after the matter has been finalised. In this case the applicant exercised her rights of appeal and they have been exhausted.

7. Counsel for the applicant has told the Court, without evidence, that the issue was simply overlooked on the appeal to the Court of Appeal. The applicant, however, was represented by the same counsel on the appeal. It is no basis for seeking to set aside a final judgment, confirmed on appeal, that counsel overlooked an argument that might conceivably have been available.

8. The second difficulty is that the applicant has not made out an arguable case that the primary Judge fell into error in summarily dismissing the summons. Nor has any basis been shown for questioning the primary Judge's comment that "the time has come to put a stop to this unnecessary litigation".

9. The application for leave to appeal must be dismissed.

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Endnotes

Decision last updated: 14 July 2016