Field v Perpetual Ltd

Case [2010] FCA 1001

FEDERAL COURT OF AUSTRALIA

Field v Perpetual Limited [2010] FCA 1001

Citation: Field v Perpetual Limited [2010] FCA 1001
Parties: CHRISTOPHER GRANT FIELD v PERPETUAL LIMITED (ACN 000 431 827)
File number: VID 675 of 2010
Judge: GORDON J
Date of judgment: 10 September 2010
Catchwords: PRACTICE AND PROCEDURE – notice of motion for summary judgment – whether proceedings have no reasonable prospect of success – whether proceedings are frivolous or vexatious or amount to an abuse of process – attempt to re-litigate allegations raised in the Supreme Court of Victoria
Legislation:

Australian Securities and Investments Commission Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
National Consumer Credit Protection Act 2009 (Cth)
National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)
Transfer of Land Act 1958 (Vic)

Federal Court Rules

Cases cited:

Clairview Developments Pty Ltd  v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501
Indrisie v General Credits (1984) 5 FCR 582
Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161
Logan v Bank of Scotland (No 2) [1906] 1 KB 141
Moore v Inglis (1976) 9 ALR 509
PNJ v R (2009) 252 ALR 612
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Shumack v Commissioner, Australian Federal Police [2005] FCA 1476

Spencer v Commonwealth of Australia [2010] HCA 28
White Industries Aust Pty Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298

Date of hearing: 9 September 2010
Date of last submissions: 9 September 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: J M Ross
Solicitor for the Respondent: HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 675 of 2010
BETWEEN:

CHRISTOPHER GRANT FIELD
Applicant
AND:

PERPETUAL LIMITED (ACN 000 431 827)
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

10 SEPTEMBER 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The Applicant pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 675 of 2010
BETWEEN:

CHRISTOPHER GRANT FIELD
Applicant
AND:

PERPETUAL LIMITED (ACN 000 431 827)
Respondent

JUDGE:

GORDON J

DATE:

10 SEPTEMBER 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. Pursuant to the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), Christopher Grant Field (the Applicant) seeks an injunction and damages against Perpetual Limited (ACN 000 431 827) (the Respondent) for alleged unconscionable conduct.  The Application was filed on 12 August 2010. 

  2. This is not the first proceeding between the Applicant and the Respondent.  On 11 January 2010, the Respondent issued proceedings in the Supreme Court of Victoria against…

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AGLC
Field v Perpetual Ltd [2010] FCA 1001
Case
[2010] FCA 1001
Decision Date

CaseChat Overview and Summary

Field v Perpetual Ltd is a case where the Applicant sought to challenge a judgment obtained by the Respondent in the Supreme Court of Victoria. The Applicant alleged that the Respondent had acted in a manner that amounted to perverting the course of justice and sought an injunction to prevent the enforcement of the judgment, as well as an order for the Federal Court to set aside the judgment. The Federal Court was required to determine whether the Applicant's claims disclosed a cause of action and, if so, whether the Court should grant the relief sought. The court found that the Applicant's claims did not disclose a cause of action and, even if they did, the Court would not grant the relief sought. The court held that the rights under the mortgage had merged in the judgment obtained in the Supreme Court, and that an injunction restraining the Respondent from enforcing the judgment would be unfair and inequitable. The application to set aside the judgment was a collateral attack on a judgment regularly entered, and the application was therefore an abuse of process.

The court further held that the Applicant had not followed the proper procedures to seek a set aside of the judgment, and that an injunction restraining the Respondent from enforcing the judgment would be tantamount to an injunction restraining a mortgagee's sale. Such an injunction will not be granted unless the mortgagor pays the mortgage debt into Court. The court concluded that this proceeding was an abuse of process and vexatious, and dismissed the Applicant's claims. The court did not make any orders in favour of the Applicant, and the judgment of the Supreme Court of Victoria remained in full force and effect.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant relied upon the same three matters (see [5(2)] above) in support of an allegation that the Respondent had sought to pervert the course of justice contrary to the Crimes Act. Again, the claim must fail for the same reasons as set out in [27] to [29]. The claim is without foundation and does not disclose a cause of action. IV. The Court cannot review or grant an injunction in respect of a decision of the Supreme Court of Victoria. As noted earlier, the Applicant seeks an injunction to restrain the Respondent from enforcing the judgment of Associate Justice Mukhtar, alternatively, an order that this Court set aside that judgment. Even if the Applicant’s claims disclosed a cause of action (and they do not), this Court would not grant the Applicant the relief that he seeks. First, as was clearly stated by Northrop J in Indrisie v General Credits (1984) 5 FCR 582 at 587, a case where General Credits had obtained judgments in the Supreme Court of Victoria for possession of land under mortgages against Mr and Mrs Indrisie and the Indrisies subsequently issued a proceeding in the Federal Court seeking an injunction restraining General Credits for taking steps to execute the judgments: … [T]he relevant rights of General Credits under the mortgage had merged in the judgment obtained in the Supreme Court. Those rights cannot be relitigated between the parties to those judgments. … In reality, the applicants are attempting to defeat a judgment properly obtained in the Supreme Court.…What is sought is a stay of a judgment validly obtained after due process. Having obtained that judgment, it would not be appropriate to restrain General Credits from giving effect to that judgment; in fact, it would be unfair and inequitable to restrain General Credits from giving effect to the judgments regularly obtained. I can see no equity which would support the contentions made.(citations omitted). Secondly, the application to set aside the judgment of Associate Justice Mukhtar is a collateral attack on a judgment regularly entered which the Applicant has not sought to have set aside by the proper procedures. The application is therefore an abuse of process. In this context, it must be noted that the Applicant applied to set aside the judgment of Associate Justice Mukhtar but failed to appear: see [2] above. There was nothing preventing him from making a further application to the Supreme Court, an avenue which was discussed with him at the first directions hearing before me in these proceedings. Thirdly, an injunction restraining the Respondent from enforcing the judgment of Associate Justice Mukhtar would be tantamount to an injunction restraining a mortgagee’s sale. As a general rule, such an injunction will not be granted unless the mortgagor pays the mortgage debt into Court: Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 at 164 -165 and 169; Clairview Developments Pty Ltd v Law Mortgages Gold Coast Pty Ltd [2007] 2 Qd R 501 at [6]. B. THIS PROCEEDING IS AN ABUSE OF PROCESS AND VEXATIOUS

Ratio Decidendi

Legal Principle Established

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