HANNA v Australia and New Zealand Banking Group Limited

[2013] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANNA & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2013] FCCA 2042

Catchwords:
CONSUMER PROTECTION – Application to reinstate proceeding dismissed by consent – inadequate evidence – reinstatement application dismissed.

First Applicant: TRACIE HANNA

Second Applicant: PETER HANNA

Respondent: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(ACN 005 357 522)

File Number: MLG 643 of 2012

Judgment of: Judge Riley

Hearing date: 21 November 2013

Date of Last Submission: 21 November 2013

Delivered at: Melbourne

Delivered on: 21 November 2013

REPRESENTATION

Counsel for the first applicant: The first applicant appeared in person

Solicitors for the first applicant: The first applicant was not represented

Counsel for the second applicant: The second applicant appeared in person

Solicitors for the second applicant: The second applicant was not represented

Advocate for the respondent: Simon Crawford

Solicitors for the respondent: HWL Ebsworth Lawyers

ORDERS

1. The application in a case filed on 30 October 2013 be dismissed.

2. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 643 of 2012

TRACIE HANNA

First Applicant

PETER HANNA

Second Applicant

And

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to reinstate a proceeding.  Orders were made on 11 June 2013 by consent dismissing the proceeding.  The applicants filed an application on 11 October 2013 seeking to reinstate the proceeding.  That application was discontinued by a notice of discontinuance filed on 28 October 2013.  The applicants then filed another application to reinstate the proceeding on 30 October 2013.  This is the hearing of that application.  The applicants are not represented. 

2. The first applicant told the court that she has narcolepsy.  There is some support for that in an affidavit that the first applicant has filed.  There is a letter dated 23 October 2013 from a clinic asking that the first applicant be assessed for narcolepsy.  There is also a letter dated 30 October 2013 indicating that the first applicant has an appointment with a sleep disorders clinic on 25 February 2014.  There is a letter from the first applicant’s psychologist dated 18 November 2013 saying that she “may” be experiencing postprandial narcolepsy. 

3. However, as the matter stands, there is no evidence before the court from a medical practitioner with expertise in the area saying that the first applicant actually has narcolepsy.  There is no evidence before the court that any medical condition that the first applicant has would, in fact, have affected her mental state in such a way that she should not be bound by the orders that were made by consent on 11 June 2013. 

4. The applicants have also relied today on documents at pages 42, 44 and 45 of the first applicant’s affidavit filed today. They seem to indicate that the applicants entered into a loan agreement with the ANZ on

   
   

   11 September 2008 and another loan agreement with RAMS Direct on 16 September 2008.  The first applicant told the court that her husband, the second applicant, who signed the ANZ document, is unable to read.  The applicant told the court today that she was present when her husband signed that document, but that there was some misunderstanding.  The other document from RAMS which the applicants rely upon is not signed.  It is clearly just part of a much longer document and its significance is unclear.

5. At best, these documents point to some cause of action that the applicants may have had in the past.  However, any such cause of action was compromised with the consent orders made on 11 June 2013.

6. As the matter stands, there is not sufficient evidence before the court today to reinstate the proceeding or to overturn the orders that were made by consent on 11 June 2013.  The applicants ask the court to adjourn the matter to allow them to have more time for their solicitor to prepare the appropriate evidence.  The respondent has pointed out that the applicants were assisted by a solicitor at the time when the consent orders were negotiated.  If the applicants are able to put together a properly supported application the matter can be heard again on another date. 

7. It seems to me that it would be improper to adjourn the matter when there is absolutely no prospect, on the material presently before the court, of the applicants succeeding in their application to set aside the consent orders that were made on 11 June 2013. 

8. The respondent indicated to the court that it does not seek the costs of the hearing today.  Of course, if it had sought costs, and if it were not for the very great loss that the applicants suffered in the Victorian bushfires in 2009, it is quite likely that the court would have made an order for costs.  

9. As things stand, it seems to me that the only proper course is to dismiss the application in a case that was filed on 30 October 2013.  There will be no order as to costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 2 December 2013