Freeman v National Australia Bank - [2006] QCA 329

SUPREME COURT OF QUEENSLAND

CITATION: Freeman v National Australia Bank [2006] QCA 329
PARTIES: LYNTON NOEL CHARLES FREEMAN
(plaintiff/appellant)
v
NATIONAL AUSTRALIA BANK LIMITED
ACN 004 044 937
(defendant/respondent)
FILE NO/S: Appeal No 219 of 2006
SC No 5438 of 2005
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 1 September 2006
DELIVERED AT: Brisbane
HEARING DATE: 21 July 2006
JUDGES: McMurdo P, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: 1. Appeal dismissed
2. Appellant must pay the respondent’s costs of the appeal
3. Leave granted to parties to make written submissions
within 14 days of the publication of this judgment as to
whether costs should be assessed on the standard or the
indemnity basis
CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – eight year history of litigation between appellant and respondent – trial judge ordered under r 293 Uniform Civil Procedure Rules 1999 (Qld) that the remaining parts of the appellant’s pleadings be struck out because there was no real prospect of success and there was no need for a further trial – trial judge ordered costs against appellant – whether appellant’s pleadings sought to re-litigate issues decided in prior court proceedings and therefore constituted an abuse of process
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – appellant was acquitted of charges of stealing cattle that belonged to the respondent –appellant alleged that an employee of the respondent pressured the police to bring criminal proceedings against the appellant – trial judge held evidence did not establish any complicity by the respondent in the unsuccessful prosecution – trial judge held police had exercised independent discretion in deciding to prosecute the appellant – trial judge held appellant’s claim about malicious prosecution had no prospects of success and struck out the claim – whether the trial judge erred in striking out this claim about malicious prosecution
Bankruptcy Act 1966 (Cth), s 58
Uniform Civil Procedure Rules 1999 (Qld), r 668
Balson v State of Queensland & Anor (2002) QSC 419; SC
No 6325 of 2001, 12 December 2002, cited
Davis v Gell (1924) 35 CLR 275, considered
D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755;
[2005] HCA 12, followed
NAB v Freeman [2001] QCA 473; Appeal No 9718 of 2000,
2 November 2001, cited
Freeman v NAB [2006] QCA 260; Appeal No 219 of 2006,
18 July 2006, cited
Freeman v National Australia Bank Ltd (unreported, HCA,
Kirby and Heydon JJ, B96 of 2001, 14 March 2003), cited
Ivory v Telstra Corporation Ltd & Anor [2002] QCA 457;
Appeal No 4059 of 2001 and Appeal No 4423 of 2001, 1
November 2002, followed
Mahon v Rahn (No 2) [2000] 1 WLR 2150, cited
National Australia Bank Ltd v Freeman [2000] QSC 295; SC
No 4013 of 1998,…

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.

Keep reading for free

Create a free CaseChat account to read Freeman v National Australia Bank and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] QCA 329
Decision Date: 1/09/2006

CaseChat Overview and Summary

Freeman brought an appeal against the decision of the trial judge to strike out the remaining parts of his pleadings on the basis that there was no real prospect of success and no need for a further trial. The trial judge also ordered Freeman to pay costs to the respondent. The case between Freeman and the respondent had a lengthy history, spanning eight years, and involved multiple court proceedings. The legal issue before the court was whether Freeman's pleadings sought to re-litigate issues that had already been decided in prior court proceedings, thereby constituting an abuse of process.

The court found that Freeman's pleadings did seek to re-litigate issues that had already been decided in prior proceedings, and as such, constituted an abuse of process. The court noted that Freeman had been given multiple opportunities to amend his pleadings and had failed to do so in a manner that avoided re-litigating old issues. The court held that the trial judge was correct to strike out the remaining parts of Freeman's pleadings and order costs against him. The court also found that Freeman's arguments on appeal were without merit and dismissed the appeal. The court further ordered that Freeman pay the respondent's costs of the appeal and granted leave to the parties to make written submissions within 14 days of the publication of the judgment as to whether costs should be assessed on the standard or the indemnity basis.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant must pay the respondent’s costs of the appeal

3. Leave granted to parties to make written submissions

within 14 days of the publication of this judgment as to

whether costs should be assessed on the standard or the

indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Freeman v National Australia Bank [2006] QCA 329
PARTIES:	LYNTON NOEL CHARLES FREEMAN (plaintiff/appellant) v NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 (defendant/respondent)
FILE NO/S:	Appeal No 219 of 2006 SC No 5438 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2006
JUDGES:	McMurdo P, Jerrard and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellant must pay the respondent’s costs of the appeal 3. Leave granted to parties to make written submissions within 14 days of the publication of this judgment as to whether costs should be assessed on the standard or the indemnity basis
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – eight year history of litigation between appellant and respondent – trial judge ordered under r 293 Uniform Civil Procedure Rules 1999 (Qld) that the remaining parts of the appellant’s pleadings be struck out because there was no real prospect of success and there was no need for a further trial – trial judge ordered costs against appellant – whether appellant’s pleadings sought to re-litigate issues decided in prior court proceedings and therefore constituted an abuse of process
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – appellant was acquitted of charges of stealing cattle that belonged to the respondent –appellant alleged that an employee of the respondent pressured the police to bring criminal proceedings against the appellant – trial judge held evidence did not establish any complicity by the respondent in the unsuccessful prosecution – trial judge held police had exercised independent discretion in deciding to prosecute the appellant – trial judge held appellant’s claim about malicious prosecution had no prospects of success and struck out the claim – whether the trial judge erred in striking out this claim about malicious prosecution
Bankruptcy Act 1966 (Cth), s 58 Uniform Civil Procedure Rules 1999 (Qld), r 668
Balson v State of Queensland & Anor (2002) QSC 419; SC No 6325 of 2001, 12 December 2002, cited Davis v Gell (1924) 35 CLR 275, considered D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12, followed NAB v Freeman [2001] QCA 473; Appeal No 9718 of 2000, 2 November 2001, cited Freeman v NAB [2006] QCA 260; Appeal No 219 of 2006, 18 July 2006, cited Freeman v National Australia Bank Ltd (unreported, HCA, Kirby and Heydon JJ, B96 of 2001, 14 March 2003), cited Ivory v Telstra Corporation Ltd & Anor [2002] QCA 457; Appeal No 4059 of 2001 and Appeal No 4423 of 2001, 1 November 2002, followed Mahon v Rahn (No 2) [2000] 1 WLR 2150, cited National Australia Bank Ltd v Freeman [2000] QSC 295; SC No 4013 of 1998,…