Griffiths, J. v Commonwealth Bank of Australia

[1991] FCA 511

Re: JOY GRIFFITHS
And: COMMONWEALTH BANK OF AUSTRALIA; NORMAN ROSS and ROY HARRY GRAY
No. WA G87 of 1990
FED No. 511
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - default judgment - non-compliance with orders for further and better particulars and discovery - further extension of time granted.

Trade Practices Act 1974 s.52

HEARING

PERTH

#DATE 26:8:1991

Counsel for the Applicant: Mr B.W. Duckham

Solicitors for the Applicant: Messrs Duckham Thorpe

Counsel for the Respondent: Ms C.J. McLure

Solicitors for the Respondent: Corrs Chambers Westgarth

ORDER

The application be dismissed unless on or before 26 September 1991 the applicant files and serves:

(i) further particulars of the statement of claim as requested in question 6 of the respondent's request for particulars filed 29 November 1990;

(ii) a list of all correspondence passing between the applicant and the first respondent between January 1989 and 21 June 1991 and if there be no such documents or if such documents have been lost or destroyed or have passed into the possession of another person, a statement as to their non-receipt or explaining what has become of them.

A copy of this order and the reasons for judgment to be sent to the applicant by her solicitors forthwith.

The applicant to pay the respondents' costs of the motion filed on 13 August 1991.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is a motion for judgment for non-compliance with orders of the Court. On 2 August 1990, Joy Griffiths instituted proceedings in this Court seeking a declaration that certain conduct of the Commonwealth Bank of Australia ("the Bank") was misleading or deceptive in contravention of s.52 of the Trade Practices Act 1974 and claiming damages "special, general and exemplary" said to have been suffered by reason of that conduct. In the alternative, she sought an order for compensation for dishonour of a cheque and further and in the alternative, damages for interference by the Bank in her contractual relationship with the Auckland Savings Bank. Damages were also claimed in the alternative against the Bank for conversion of her money and for conspiracy. Damages were claimed against the second respondent, Mr Ross, an employee of the Bank for allegedly aiding and abetting the contravention of s.52. The application was initially supported by affidavit, but at a directions hearing on 24 August 1990 Lee J. ordered that Mrs Griffiths file and serve a statement of claim on or before 7 September 1990 and made other directions for the filing of consequential pleadings. On 7 September 1990 however, Mrs Griffiths filed a notice of motion seeking leave to amend the application and interlocutory orders for the payment of proceeds of a cash management account with the Bank and delivery up of an agreement relating to her ability to deal with that account. The motion was returnable on 21 September 1990. On 19 September 1990, a further motion, also returnable on 21 September 1990, was filed by the Bank seeking an order that Mrs Griffiths file and serve a statement of claim within 7 days of the order failing which the action should be dismissed and judgment entered for the Bank.

1. On 21 September 1990, Lee J. varied the directions previously given and extended the time for filing a statement of claim to 28 September 1990 with corresponding variations to the consequential programming orders. The directions hearing was then adjourned to 14 December. No interlocutory orders were made, nor was there any self executing order of the kind sought by the respondent. A statement of claim was filed on 28 September 1990 and a defence on 31 October 1990, the latter being then some 19 days out of time.

2. On 31 October 1990, Lee J. made an order by consent again varying the programme. Under the varied programme Mrs Griffiths was to file and serve a defence to cross-claim and reply by 15 November 1990. Consequential steps involving the filing of a reply to defence to cross-claim if any and request for particulars were also directed. The matter was otherwise listed for directions on 14 December 1990. Mrs Griffiths filed a reply and defence to the cross-claim on 15 November 1990 as required by the directions and in accordance with that timetable the respondents filed a request for further and better particulars of the statement of claim on 29 November 1990.

3. On 14 December 1990, the request for further and better particulars of the statement of claim had not been answered as required by the order of Lee J and on that date he made a further order extending the time limited for the filing of particulars to 14 January 1990. Directions were also made for the filing of any motion to join a third party requiring that it be returnable at 9am on 20 December. The directions hearing was also adjourned to that date. On 19 December, the Bank filed a motion seeking leave to join Roy Harry Gray as a cross-respondent to the action and leave to amend the defence and cross-claim accordingly. On 20 December 1990, orders were made accordingly and the directions hearing adjourned to 23 January 1991. On that date there was no appearance for the applicant and the directions hearing was adjourned to 31 January 1991. On 31 January 1991, the particulars requested on 29 November 1990 had still not been provided and orders were made that they be filed and served on or before close of business on that day. The parties were also required to give discovery by list on or before 28 February 1991 and inspection of documents by 14 March. Draft interrogatories were ordered to be filed and served by 28 March and the matter was relisted for further directions on 11 April.

4. Mrs Griffiths filed a defence to the cross-claim on 31 January 1991 and a list of documents, some five days out of time, on 5 March 1991. On 10 April 1991, I made an order by consent extending the time for discovery to 19 April and inspection to 3 May, draft interrogatories to be filed and served by 10 May 1991. On 24 April 1991, the respondents filed their list of documents some five days out of time.

5. On 14 June 1991, the respondents filed a motion returnable on 21 June seeking further and better particulars of the statement of claim in answer to certain of the questions contained in the request and specific discovery of certain classes of documents. That motion was heard on 21 June 1991 and orders were made that Mrs Griffiths do, by the 22 July, file and serve further and better particulars of the statement of claim in answer to questions 2(iv), 3(e) and 6 of the respondents' request for further and better particulars of the statement of claim. Specific discovery was also ordered to be given by list on or before that date. The documents to be discovered were set out in the order. Mrs Griffiths was ordered to pay the respondents' costs of the motion and the matter was relisted for further directions on 13 August 1991. By that time neither the further particulars directed nor the further discovery directed had been given and when the matter came on for directions the respondents filed in Court a motion for judgment for non-compliance with those directions. Mr Duckham, counsel for Mrs Griffiths, and Ms. McLure, counsel for the respondents, were present in court when the following orders were made:
   

1. The respondents' motion filed in Court today be adjourned to 20/8/91 at 10 am.

2. The applicant on or before 19/8/91 to comply with the orders made on 21/6/91 and to file and serve an affidavit by her solicitors explaining her non-compliance.

3. The applicant to pay the respondents' costs of today's direction hearing.

On 19 August 1991, three documents were filed, one being a reply to the request for further and better particulars of the statement of claim provided pursuant to the order made 21 June 1991, the other being a supplementary list of documents filed pursuant to the same order. Also filed was an affidavit from Mr Duckham, the solicitor for Mrs Griffiths. In that affidavit he indicated that she is at present out of the State of Western Australia and in New Zealand. He said that following the order of 21 June 1991 he informed her of it by a letter dated 1 July 1991. On 17 July 1991 he sent his client a copy of the order by fax to ensure that there was no uncertainty about her awareness of it. His file indicates that on 18 July 1991, Mrs Griffiths forwarded a fax in reply advising that the required documents had been sent by International Courier. They arrived in due course. The matter, he said, was at all relevant times being attended to by his clerk, a Mrs Taylor. Mrs Taylor however, was absent from his employment on 15 to 19 July and 8, 9 and 12 August. The affidavit then went on:

"7. Mrs Taylor was absent from employment from the 15-19th July and the 8th, 9th and 12th August. By reason of her being absent the matter was not finalised within the time

as provided in the Court proceedings.

8. Further, Mrs Taylor had with the

co-operation of my client been processing an application for Legal Aid which she was

trying to have filed prior to the Court

documentation being attended to. This has not yet been finalised either.

9. I respectfully adopt the view that the

failure to comply with the timing set out in the Court Order has not been in wilful disregard of the Court but that every

effort has been made to comply within

reasonable time."

1. When the matter came on again on 20 August 1991, the motion for judgment was persisted with on the basis that the list of documents and the particulars provided did not comply with the order that had been made. Mr Duckham on that occasion appeared on behalf of Mrs Griffiths, although he arrived a few minutes late and while counsel for the respondents was addressing the Court on the adjourned motion. When counsel for the respondents had concluded, Mr Duckham asked the Court what the nature of the proceedings then before the Court was. When it was pointed out to him that this was the adjourned motion for judgment, he claimed not to have been aware whether the motion had in fact been filed. He had of course been present on the previous occasion when the motion had been filed in Court and orders made adjourning it for argument to 20 August. Mr Duckham's manner was inexplicably rude and his demand for information to which he was already privy quite extraordinary. His conduct can only be described as lacking in that respect which the Court is entitled to expect and almost invariably receives from members of the profession appearing before it.

2. Having said that, I turn to the merits of the motion.
   The Nature of the Claim

3. By her statement of claim Mrs Griffiths alleges that in January 1989 she deposited $100,000 in an interest bearing account with the Morley Branch of the Bank. Contrary to her instructions, the Bank received the money into an account in the name of herself and her de facto husband, Roy Harry Gray, and debited to that account interest accruing against a loan of $600,000 obtained by Gray against the purchase of a property in Applecross (para 3). When she became aware of these facts Mrs Griffiths says she demanded that the Bank comply with her instructions and that the Bank met her demand by transferring the sum of $100,000 into a 30 day interest bearing account in her name alone and reversing the interest debit to the credit of her account.

4. On or about 8 August 1989 she says she attended the Bank's Morley branch and signed an instrument purporting to restrict her ability to draw upon the $100,000. The Bank, she says, represented to her that this instrument was required to effect a change in the nature of her account from a 30 day term account to an oncall "cash management account". This, however, was said to be a false representation in that the instrument in effect purports to charge her account as a form of security for the loan to Mr Gray (para 6).

5. The statement of claim goes on to allege that in October 1989 Mrs Griffiths withdrew $20,000 from her account without challenge from the Bank and on 19 June 1990 when the balance stood at $91,104 or thereabouts, she attended the Bank's Martin Place Branch and withdrew $90,000 with a Bank cheque payable to herself. That money was said to be required for a property transaction in New Zealand. Later on the same day in Sydney she attended at the Bank's Edgecliffe Branch and directed the Bank to:
   

(a) Convert the cheque to New Zealand currency;

(b) To remit the resultant sum (NZ$119,619) to her account at the Remeura Branch of the Auckland Savings Bank.

On 20 June 1990 the Bank remitted by telegraphic transfer the sum of NZ$119,619 to the credit of her account with the Auckland Savings Bank (para 10). Subsequently, she alleges, on a date not known to her but prior to 26 June 1990 the Commonwealth Bank interfered in her contractual relations with the Auckland Savings Bank by demanding, and alternatively requesting, that Bank to refuse to permit her to draw against the proceeds of the telegraphic transfer. The Auckland Savings Bank acceded to the demand or request made by the Commonwealth Bank, conditional upon the latter indemnifying it and subsequently remitted all the funds to the Commonwealth Bank in Australia which then deposited them to the credit of Mrs Griffiths' account with its Morley branch after deduction of some $864 in charges (para 13).

1. Mrs Griffiths alleges that the Bank has thereafter refused to permit her to draw against the funds claiming they stand as security for the loan to her de facto husband and has thereby converted them to its own use.

2. Paragraph 15 of the statement of claim alleges damages as follows:
   

"15. In the premises, the conduct of the Bank

described in paragraphs 5 and 6 and 9-12 hereof inclusive, was misleading and deceptive, constituted an unlawful interference in the Applicant's

contractual relations with the Auckland Savings Bank, constituted a conversion of the Applicant's funds and in effect amounted to the dishonour of the Bank Cheque described in paragraph 8 hereof, by reason whereof the Applicant has suffered damage and been put to loss and expense. PARTICULARS

(a) inability to complete property transaction in New Zealand.

(b) loss of the use of her funds.

(c) injury to her business and credit reputation."

The Bank is said to have been aided and abetted in its conduct by Ross and the relief already referred to is then claimed.

1. By their request for further and better particulars of the statement of claim, the respondents ask for full particulars of loss and damage allegedly suffered as a result of:
   

(i) the inability to complete property transactions in New Zealand;

(ii) loss of use of the funds;

(iii) injury to business and credit reputation.

The particulars provided by Mrs Griffiths on 31 January 1991 in answer to question 6 were as follows:

"(i) It is anticipated that the applicant's Auckland apartment is to be sold at a mortgagee's auction and that such sale will result in a loss. The precise loss cannot be quantified until the auction takes place. It is anticipated that the applicant's loss will be in the order of $750,000. Evidence of the precise loss will be adduced at the hearing of this action.

(ii) Inability to effect substantial reduction in a loan facility secured over the apartment in (i) above has resulted in loss of substantial equity in the property. Unavailability of funds has resulted in an inability to discharge personal debts with respect to credit cards and a difficulty in meeting medical and dental bills and has resulted in damage to applicant's business reputation and loss of credit standing.

(iii) It is submitted that this is a matter of evidence."

1. It is not necessary for present purposes to refer to the other questions contained in the request for particulars. In the further particulars filed on 19 August pursuant to the order made on 21 June, the answers to that question were as follows:
   

"(i) The Applicant's unit in Auckland is currently the subject of a mortgagee sale as it was intended that the same be refinanced.

(ii) The Applicant has been unable to invest monies to counteract losses and as a result has been unable to pay accounts, has had credit cards withdrawn, has had to sell assets i.e. car in order to pay on-going expenses.

(iii) The Applicant has been unable to earn an income and has had credit restricted."

As can be seen, there is less detail offered in these particulars than was contained in those originally proffered. While it may be that no more than an estimated loss is possible at this time in relation to the answer to question 6(i), the calculation of that estimate should be set out and the date of the proposed mortgage auction should be specified. So far as the alleged loss of use of funds is concerned the general statements made represent no serious attempt to provide the particulars sought. The allegations give no indication of the actual quantum of loss claimed and if that head of loss is to be proceeded with, the amount to be claimed and the basis for its calculation must be set out. The same is true for the answer to question 6(iii). I regard the "particulars" provided as derisory and not complying with the order. Whether in light of Mr Duckham's conduct in this Court that should be sheeted home to Mrs Griffiths may be doubtful. In the circumstances I will allow a further extension to provide full and proper particulars which will indicate the quantum of consequential damages being sought. If the order is not then complied with, Mrs Griffiths' application will be dismissed.

1. By the order for further discovery made on 21 June 1991, it was directed that Mrs Griffiths give further discovery by list of various classes of documents including:
   

"(d) All correspondence passing between the Applicant and the First Respondent in the Period."

The period referred to was between January 1989 and 21 June 1991. In the supplementary list provided there was no reference to any documents in that general class save for a letter dated 14 November 1990 from Mrs Griffiths to the Manager of the Commonwealth Bank. If it be the case that Mrs Griffiths contends that the correspondence in question was not received, or has been lost, or destroyed, I would expect a statement to that effect in her supplementary list. On the face of it she does not appear to have complied with the order in that regard. I propose therefore to order that she provide further discovery of that class of documents. If she claims never to have received any such correspondence or to have lost or destroyed it or handed it to some other person, then a statement to that effect should appear in the further supplementary list.

1. I will make an order that the application is to be dismissed if these further orders are not complied with within the space of one month. This should provide ample time for communication between Mrs Griffiths and her solicitors and for the filing and service of the necessary documents. I do not propose to make any order on the cross-claim. It seems to me that any motion for default judgment on the cross-claim should be supported by evidence of the liability claimed.