Elliott Sgargetta v National Australia Bank Ltd , Melissa Maree Thomas and Adam Arthur Segal
[2015] VSCA 289
•21 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0157
| ELLIOTT SGARGETTA | Applicant |
| v | |
| NATIONAL AUSTRALIA BANK LTD | First Respondent |
| and | |
| MELISSA MAREE THOMAS | Second Respondent |
| and | |
| ADAM ARTHUR SEGAL | Third Respondent |
---
| JUDGES: | PRIEST JA |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 21 October 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 289 |
| JUDGMENT APPEALED FROM: | National Australia Bank Ltd v Sgargetta [2014] VCC 1883 (Judge Cosgrave) |
---
PRACTICE AND PROCEDURE – Application to direct the Registrar to accept an application for leave to appeal – Whether the applicant is seeking to re-agitate the matters already determined – Supreme Court (General Civil Procedure) Rules 2005, r 64.43(5) – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| No appearances |
PRIEST JA:
In circumstances that I will later elaborate, the applicant, Mr Elliott Sgargetta, seeks an order that the Registrar be directed to accept his application for leave to appeal dated 31 December 2014.
For the reasons that follow, the application must be refused.
In 2007, the National Australia Bank (‘NAB’ or ‘the respondent’) made a home loan to the applicant. A dispute arose in October 2008 concerning the payout figure on the loan. NAB took proceedings in the County Court to recover possession of the property securing the loan. In the result, the parties entered into a deed of settlement (’the deed’) in February 2013. Later, another dispute between the parties arose as to whether the applicant had complied with the deed. The present application revolves around the deed.
It is necessary to set out a little more of the history of associated proceedings. On 7 June 2012, NAB commenced proceedings in the County Court seeking possession of the property. In August 2012, default judgment for possession was entered in the County Court. On 28 September 2012, that default judgment was set aside; the proceeding was set down for trial on 20 March 2013; and directions as to pleadings, discovery and other matters were made. On 13 December 2012, NAB issued a summons seeking summary judgment or, alternatively, that the applicant’s defence be struck out. Mediation was ordered on 24 January 2013, and the hearing of NAB’s application for summary judgment was fixed for 1 March 2013.
On 5 February 2013, the parties entered into the deed, which contained the following provisions:
Background
...
G. NAB has filed a Summons seeking to have the Defence and Counter Claim struck out and for summary judgment to be entered in favour of NAB in the Proceedings ...
H. NAB’s Summons is listed for hearing on 1 March 2013.
...
Operative Provisions
...
2.0 Refinance
2.1 NAB will agree to adjourn the hearing of its Summons, provided the following conditions are complied with, time being of the essence:
(a) By 5.00 pm on 25 February 2013 Mr Sgargetta must provide to NAB’s solicitors, Gadens Lawyers, a conditional letter of approval for finance on terms acceptable to NAB and for an amount equal to or greater than $299,000;
(b) by 5.00 pm on 15 April 2013 Mr Sgargetta must:
(i) pay NAB the sum of $299,000 in cleared funds; and
(ii) withdraw his Defence and Counter Claim in the Proceedings; and
(c) Mr Sgargetta must otherwise comply with the terms and conditions of this Deed.
2.2 Provided the conditions in clause 2.1 above are complied with, NAB will:
(a) accept $299,000 in full and final satisfaction of the amount owed by Mr Sgargetta under the Home Loan Facility, the Mortgage and any claims in the Proceedings;
(b) discontinue the Proceedings on the basis that each party pays its own costs; and
(c) provide to Mr Sgargetta:
(i) an original and duly executed discharge of the Mortgage in registrable form; and
(ii) the original Certificate of title for the Property.
3.0 Consequences of any default by Mr Sgargetta
If Mr Sgargetta defaults under clause 2 above, or any other terms of this Deed, time being of the essence, NAB will immediately be entitled to proceed with the hearing of its Summons and the Proceedings generally.
The recovery proceeding eventually went to trial in the County Court, and the applicant appeared for himself. A central question at trial was whether or not the applicant had complied with the terms of the deed entered into by the parties on 5 February 2013. Indeed, one of the critical issues was whether the applicant had tendered a cheque for $299,000 during a 20 March 2013 hearing on the respondents’ application for summary judgment. The evidence was conflicting, but the judge found that there had been no such tender. On 17 February 2014, Judge Cosgrave made orders for possession in favour of NAB; ordered the applicant to pay NAB the sum of $440,441.19 (together with interest accruing from 12 February 2014 at the rate of $64.81 per day); dismissed a counterclaim by the applicant; and ordered that the applicant pay NAB’s costs, including costs on an indemnity basis for the period after an offer of compromise had been made.
The applicant personally filed a notice of appeal in this Court, and personally filed written submissions, dated 2 May 2014, in support of the appeal. On 14 May 2014, NAB filed written submissions in opposition to the appeal and also filed a notice of contention. By 26 May 2014, the applicant had secured legal representation through the Victorian Bar’s pro bono scheme, and on that day pro bono counsel filed supplementary submissions. Counsel appeared pro bono on the applicant’s behalf on the hearing of the appeal.
Significantly, on the hearing of the appeal, the Court asked counsel for the applicant about the relationship between the written submissions filed personally by the applicant on 2 May 2014, and the supplementary submissions filed by pro bono counsel on 26 May 2014. The Court was told by the applicant’s counsel that some of the grounds of appeal addressed in the applicant’s personal submissions were to be abandoned; where the applicant’s personal submissions and his counsel’s submissions dealt with the same issue, the Court should have regard to counsel’s submissions; and, where matters were neither abandoned nor the subject of counsel’s submissions, the Court was to have regard to what the applicant had said in his personal submissions. One ground of appeal that was expressly abandoned by the applicant’s counsel on the hearing of the appeal was that one of the clauses in the deed of settlement, which required the appellant to provide a conditional letter of approval of finance on terms acceptable to NAB, was void for uncertainty and was severable.[1]
[1]Sgargetta v National Australia Bank [2014] VSCA 159, [6]–[7] (Whelan and Santamaria JJA).
In summary, the Court’s conclusions on the appeal were as follows:[2]
[2]Ibid [124]–[131].
This dispute began because NAB made a mistake. It told Mr Sgargetta that on a sale of the security property he would have to pay out less than the correct payout figure. It corrected that mistake very shortly prior to the due date for settlement of that sale. The sale was pursuant to a contract Mr Sgargetta had made with his wife before either of the payout figures, correct or incorrect, had been provided.
Mr Sgargetta reacted to the correction of NAB’s initial mistake by reporting NAB to [the Financial Ombudsman Service], cancelling the settlement, and ceasing all payments on the loan.
Because Mr Sgargetta ceased all payments on the loan the debt escalated significantly.
NAB delayed recovery proceedings for a period which is, at least in part, unexplained.
After NAB took recovery proceedings, a settlement deed was entered into containing terms which were, on one view, favourable to Mr Sgargetta. But he was unable or unwilling to comply with a term of that deed which required him to provide to NAB a conditional letter of approval for finance on terms acceptable to NAB by a specified date. The parties negotiated but could not reach a new agreement, although comparatively little separated them.
After a trial and the delivery of detailed reasons by the trial judge, NAB obtained judgment for the full amount it alleged to be due, obtained judgment for possession of the property, and obtained an order for costs against Mr Sgargetta.
Mr Sgargetta then appealed. He had the assistance of pro bono counsel.
Mr Sgargetta has not made good any of his grounds of appeal for the reasons we have given. His appeal must be dismissed.
Following the dismissal of his appeal, the applicant sought to stay the orders of both the trial court and the Court of Appeal pending the outcome of an application for special leave to appeal to the High Court. In essence, he contended that:
· The Bar’s pro bono scheme was established to assist the Court and problems with it are leading to negligence and a failure to address all of a self-represented party’s arguments, specifically the applicant’s, whose case has been completely destroyed’.
· The judgment of the Court of Appeal is flawed, and fresh evidence should be adduced to prove its deficiencies.
· Testimony by a NAB witness ‘contravenes certain legislation’ and is under investigation. Moreover, since the First Appeal concluded that he had tendered the cheque for $299,000 it has been established that NAB’s counsel — the second respondent — committed perjury.
· The appeal hearing should have been adjourned so that it could be ‘completed entirely and appropriately’. Pro bono counsel had no time to prepare and eight other pro bono attorneys have confirmed NAB broke the law.
· Pro bono counsel failed in their duty to tender the $299,000 cheque or include any arguments regarding tender.
· Two NAB witnesses perjured themselves in their affidavits submitted in response to his fresh evidence application.
The Court (Osborn and Beach JJA) refused the application for a stay.[3] In so doing, the Court rejected each of the applicant’s contentions. Many of the applicant’s allegations were described as ‘conclusory’, ‘tendentious’, lacking ‘proper evidentiary basis’ and an attempt to re-agitate points that had been resolved by the appeal. Pro bono counsel, the Court noted, had ‘properly, competently and professionally’ assisted the applicant. All grounds — including those relating to the tender of the $299,000 cheque — had been ‘considered carefully and at length by the trial judge and the Court of Appeal’.[4]
[3]Sgargetta v National Australia Bank [2014] VSCA 189.
[4]Ibid [18].
Despite his lack of success in the Court of Appeal, the applicant sought the same relief in the County Court. Furthermore, he attempted to file a writ against two of NAB’s witnesses (one of whom was counsel for the NAB at the time of the alleged tender of the cheque), claiming $3.8 million in damages as the result of their alleged perjury and unconscionable and misleading conduct. He further contended that their acts vitiated the previous trial and that a new one should be had. The Registrar of the County Court refused to seal the writ, however, on the grounds that the proposed writ would be irregular or an abuse of process.
On 11 December 2014, Judge Cosgrave dismissed an application for stay and a retrial, and upheld the Registrar’s refusal to seal the writ.
By coincidence, on 11 December 2014 the High Court also refused the application for special leave to appeal, concluding that it ‘does not identify any error of law on the part of the Court of Appeal’; ‘does not raise any question of principle for determination’; and ‘does not have sufficient prospects of success to warrant a grant of special leave to appeal’.[5]
[5]Sgargetta v National Australia Bank Limited [2014] HCASL 234, [4].
On 30 December 2014, the applicant sought to file an application for leave to appeal from Judge Cosgrave’s decision of 11 December 2014. Whatever other manifold criticisms that could be made of the purported grounds of appeal, it is plain that they attempted to traverse issues that had already been determined adversely to the applicant when he first endeavoured to appeal to this Court.
The Deputy Registrar refused to accept the application for leave to appeal for filing, on the basis that it was incompetent. An email exchange ensued between the applicant and the Deputy Registrar. It was made clear to the applicant that he would have to submit a fresh application.
On 19 January 2015, the applicant attempted to file a second application for leave to appeal to this Court, which, it might be observed, was virtually identical to his first application. The Deputy Registrar refused to accept the second application for filing, and in an email advised the applicant as follows:
These documents are in every substantial way identical to those which you submitted last month. As I advised you then, this Court is functus. You may not reopen consideration of the questions it has previously determined simply by means of making a new application.
To the extent that you contend the trial judge erred in refusing to allow new proceedings to issue or in determining an application that you claim was withdrawn, which appear to be the only two coherent grounds made, then you must identify precisely what was wrong with his Honour's decision on those questions and not to issues that were previously determined against you by this Court.
Accepting these documents as formulated would constitute an abuse of process and the Registrar hereby refuses to do this pursuant to Supreme Court (Civil Amendments) Rules 2014 r 64.43.
Another email exchange took place, and on 21 April 2015, the applicant wrote to the Registry asking about the status of his previously filed application, which he characterised as having been referred to the pro bono program ‘to be tidied up’. The Deputy Registrar advised him that this was not the case, that his application had been twice refused and that he had been referred to the pro bono program to obtain advice, nothing more. Following further discussion, on 23 April 2015 the applicant was advised to file an application asking the Court to direct the Registrar to accept his application for leave to appeal.
On several occasions between 23 April 2015 and 22 June 2015, the applicant again tried to file the same application for leave to appeal. He was refused on each occasion, and was told repeatedly to file an application for the Court to direct the Registrar to accept his application for leave to appeal.[6]
[6]Rule 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2005 provides:
The Court of Appeal constituted by one or more Judges of Appeal may direct the registrar to accept for filing any document which the Registrar has refused to accept under this Rule.
Ultimately, on 22 June 2015, the applicant did file such an application. Following further delays emanating from the applicant, the NAB filed documents in opposition on 13 July 2015.
The application was initially listed for September 2015, but it was taken out of the list as a result of more urgent applications being filed. Further consideration of the matter followed, and the application was referred to a single Judge of Appeal pursuant to rule 64.15(1). On 30 September 2015, Beach JA directed that the application be determined ‘on the papers’ by a single Judge of Appeal.
Having considered the pertinent documents, I agree with the respondent’s submissions that the applicant’s material in support of his application is ‘vague and confusing’, and that it provides no sensible basis from which the Court could properly consider the merits of the application.
The applicant’s affidavit, sworn on 21 May 2015, refers to ‘new and substantial material that has now formalised and established fraud and false evidences that were made by the Respondents/Defendants’. All of the ‘new material’ relied upon, however, consists of material which was considered by this Court during the hearing of the applicant’s first appeal. Thus, the affidavit material referred to by the applicant in this application was, so it seems to me, considered by the Court at that time. Had the applicant been permitted to re-agitate the matters that he sought to before the County Court, the Court would have sanctioned an abuse of process, in light of the principles of res judicata,[7] issue estoppel[8] or Anshun estoppel.[9] Certainly, to have permitted such a course would have allowed an abuse or process by way of relitigation.
[7]Sahin v National Australia Bank Ltd [2012] VSCA 317, [75] (Ferguson AJA).
[8]Shaw v Gadens Lawyers [2014] VSCA 74, [59] (‘Shaw’).
[9]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 598.
Maxwell P relevantly observed in Shaw:[10]
[10]Shaw, [59]–[62].
In the present case, the established principle of finality in litigation forms part of the common law background against which a provision of this kind must be construed.[11] Three common law principles are relevant here, those concerning (respectively) res judicata, issue estoppel and what is conventionally known as Anshun estoppel. These principles may be shortly summarised as follows:
[11]See Achurch v R [(2015) 253 CLR 141, [16]] (‘Achurch’).
• res judicata, or ‘cause of action estoppel’, prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties;[12]
[12]Blair v Curran (1939) 62 CLR 464, 532; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, 556–7.
• the principle of issue estoppel is that a judicial determination directly involving an issue of fact or of law disposes once and for all of that issue, so that it cannot afterwards be raised between the same parties or their privies;[13]
[13]Blair v Curran (1939) 62 CLR 464, 531.
• the principle of Anshun estoppel prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings, being proceedings so closely connected with the later subject-matter that it might reasonably have been expected that the claim or defence would have been raised in those earlier proceedings.[14]
Each of these estoppels is founded on the same principles of public policy, that there is a public interest in there being an end to litigation and that no person should be twice sued for the same cause. In Lambidis v Cmr of Police,[15] Priestley JA (with whom Kirby P and Powell JA agreed) said:
[A]mong the public policy reasons common to both res judicata and issue estoppel are the protection of parties from unnecessary relitigation and the avoidance of the expense, inconvenience and anxiety involved in the same persons fighting a second time on an issue already decided between them. These ends are for the benefit of the efficiency and finances of the State and its heavily burdened and expensive to run courts and tribunals, as well as for individuals.[16]
Although the Anshun doctrine relates to matters not previously litigated, it is founded on the same considerations of public policy. As Marshall J said in Foodco Group Pty Ltd v Northgan Pty Ltd:[17]
Broadly speaking, Anshun estoppel has its basis in three considerations of public policy. The first is the maxim nemo debet bis vexari pro eadem causa which translates as ‘no man ought to be vexed twice for the same cause’…
The second public policy consideration is the maxim interest reipublicae sit finis litium which translates as `it concerns the State that there be an end to litigation’ … Multiplicity of proceedings is undesirable. During the conduct of litigation, parties and their legal advisers should be cognisant of this fact. The prospect of costs being awarded against a party or solicitor personally, in the circumstances of multiple proceedings, should focus their minds on this issue …
The third relevant public policy consideration is the undesirability of having conflicting judgments on the record.
In Ford Motor Company of Australia Ltd v Tristar Steering & Suspension Australia Ltd,[18] Goldberg J said:
[U]nderlying the Anshun principle is a public policy issue which may apply independently of the acts of the parties, namely that it is in the interests of the administration of justice that all issues which properly belong to the subject-matter of litigation be brought forward at the one time, not only to avoid the possibility of inconsistent decisions but also on the ground of providing for an efficient use of a scarce resource which is not infinite, namely, court resources and judicial time.[19]
[14]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[15](1995) 37 NSWLR 320 (‘Lambidis’).
[16]Ibid 332.
[17](1998) 83 FCR 356, 361–362.
[18][2003] FCA 596, [35].
[19]See also Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666, 671; King v Lintrose Nominees Pty Ltd (2001) 4 VR 619, 626 [19].
In my opinion, the applicant’s new application for leave to appeal is nothing more than an attempt to relitigate matters which have previously been determined adversely to him. His attempt to do so cannot be countenanced.
The application under rule 64.43(5) must be refused.
----
7
0