Fraser v Commonwealth of Australia
[2008] FCA 1434
•19 September 2008
FEDERAL COURT OF AUSTRALIA
Fraser v Commonwealth of Australia [2008] FCA 1434
SYDNEY FRASER v COMMONWEALTH OF AUSTRALIA
SAD 116 OF 2008
BESANKO J
19 SEPTEMBER 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 116 OF 2008
BETWEEN:
SYDNEY FRASER
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
19 SEPTEMBER 2008
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The name of the respondent be changed from “Australian Government” to “Commonwealth of Australia”.
2.The proceeding be dismissed.
3.The applicant pay the respondent’s costs of and incidental to the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 116 OF 2008
BETWEEN:
SYDNEY FRASER
ApplicantAND:
COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
BESANKO J
DATE:
19 SEPTEMBER 2008
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 8 August 2008, Mr Sydney Fraser issued a proceeding in this Court against the “Australian Government”. Mr Fraser’s application was supported by an affidavit sworn on 28 July 2008. On 8 September 2008 the Commonwealth of Australia filed and served a notice of appearance. Mr Fraser did not object to an order that the name of the respondent be changed to the Commonwealth of Australia and I will so order.
On 9 September 2008 the Commonwealth filed a notice of motion in which it sought an order that the proceeding be dismissed on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The notice of motion was supported by an affidavit sworn by a solicitor employed by the Australian Government Solicitor.
The notice of motion came on for hearing before me on 17 September 2008. Mr Fraser appeared in person, and the Commonwealth was represented by counsel.
The Commonwealth seeks an order under s 31A of the Federal Court of Australia Act 1976 (Cth), which provides, relevantly:
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Court has apart from this section.
In the alternative, the Commonwealth seeks an order under O 20, r 5 of the Federal Court Rules, which is in the following terms:
(1)This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:
(a)the proceeding or claim is frivolous or vexatious; or
(b)the proceeding or claim is an abuse of the process of the Court.
(2)The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.
(3)The Court may receive evidence on the hearing of an application for an order under subrule (2).
Note For a proceeding commenced on or after 1 December 2005 in which the prosecuting party has no reasonable prospect of success, see subsection 31A(2) of the Act.
The relief which is claimed in the application is damages of at least $2.5 million and the relief claimed by way of interlocutory relief is a sum of $1 million. However, no basis for these claims is outlined in the application or affidavit or was outlined by Mr Fraser in his oral submissions.
None of the application, the affidavit or Mr Fraser’s oral submissions identifies a cause of action against the Commonwealth. The allegations which are made are very diffuse and focus on a long-running dispute between Mr Fraser and the National Australia Bank. A part of the history of that dispute is summarised in Fraser v National Australia Bank [2000] SASC 372, Fraser v National Australia Bank [2001] SASC 111, Fraser v National Australia Bank Ltd [2005] HCA Trans 898 and Fraser, In the Matter of an Application for Leave to File a Proceeding [2008] HCA Trans 177. Even in his oral submissions, Mr Fraser focused on conduct relating to his proceedings against the National Australia Bank. No cause of action against the Commonwealth has been identified. The references, such as they are, to the conduct of a member of Parliament and the actions of the Commonwealth Ombudsman and the Australian Banking Industry Ombudsman do not allege a cause of action against the Commonwealth.
I am satisfied that it is appropriate to conclude that Mr Fraser has no reasonable prospect of prosecuting the proceeding against the Commonwealth, and an order should be made under s 31A of the Federal Court of Australia Act 1976 (Cth). The order which should be made is an order dismissing the proceeding. It is unnecessary to consider whether the application may have succeeded under O 20 r 5 either in addition to it or in the alternative to it. There is one other point which I should mention, which is that the allegations are so vague and diffuse that I do not think that I could be satisfied that they raise a matter over which this Court has jurisdiction (see s 39B of the Judiciary Act 1903 (Cth)).
For these reasons the proceeding should be dismissed and the applicant should pay the respondent’s costs of and incidental to the proceeding.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 18 September 2008
Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: Mr G Camilos Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 17 September 2008 Date of Judgment: 19 September 2008
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