Hester v Commonwealth Bank of Australia

[2023] NSWSC 424

Supreme Court

New South Wales

Medium Neutral Citation:

Hester v Commonwealth Bank of Australia [2023] NSWSC 424

Hearing dates:

24 April 2023

Date of orders:

24 April 2023

Decision date:

24 April 2023

Jurisdiction:

Equity - Corporations List

Before:

Hammerschlag CJ in Eq

Decision:

Proceedings summarily dismissed. See [9]

Catchwords:

CIVIL PROCEDURE — summary disposal — where Originating Process and supporting affidavit alleges treason, removal of the Crown, removal of the Monarch, fraud by former Prime Minister — HELD — summary dismissal of proceedings — frivolous or vexatious proceedings

Legislation Cited:

Constitution

Corporations Act 2001 (Cth)

Crimes Act 1900 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Commonwealth Bank of Australia v Hester [2019] NSWSC 1842

Hester v Commonwealth Bank of Australia [2023] NSWCA 70

Category:

Principal judgment

Parties:

John Hester (Plaintiff)
Commonwealth Bank of Australia (Defendant)

Representation:

Counsel:
Plaintiff (Self-Represented)
M Collins (Defendant)

Solicitors:
Dentons (Defendant)

File Number(s):

2023/00020202

EX TEMPORE JUDGMENT (REVISED)

1. The defendant (the Bank) brought proceedings against the plaintiff (Mr Hester) for recovery of monies lent and advanced to him and for possession of a residential property at Hamlyn Terrace in New South Wales (the Property), which Mr Hester had mortgaged to it a security for the loan. On 19 December 2019, the Bank obtained default judgment together with an order for possession after a hearing at which Mr Hester was present: Commonwealth Bank of Australia v Hester [2019] NSWSC 1842. A writ of possession was issued on 17 October 2022 and the Bank took possession of the Property on 7 December 2022.

2. On 19 January 2023, Mr Hester filed an Originating Process in the Corporations List. The Originating Process refers to s 952C of the Corporations Act 2001 (Cth), which makes it an offence to fail to give a disclosure document or statement. Mr Hester claimed that documents were not produced as evidence and possible fraudulent documents were submitted as evidence in the proceedings against him. The Originating Process incorporated an affidavit of Mr Hester, also dated 19 January 2023, which refers, amongst others, to the “Overt Act Of Treason (Unlawful Act)”, the “Removal of the Crown”, the “Removal of the Monarch” and various claims concerning the Bank. Mr Hester claimed that the selling off of the Bank was illegal because the then-Prime Minister of Australia, Bob Hawke, was in breach of the Constitution due to him also being “an honorary citizen of Israel”.

3. Section 952C can have no application. So much was pointed out to Mr Hester by Black J on 6 February 2023 when the matter came before his Honour in the Corporations List. His Honour nonetheless made directions for the progression of the proceedings, including for the filing of a Statement of Claim and giving Mr Hester the opportunity to have the proceedings transferred to the Possession List. I interpolate that on 18 April 2023, Mr Hester filed a document entitled “Written Submissions – Interlocutory Process filed 4 April 2023”, intended to be his pleading. The document refers to the Bank not having produced certified copies of original documents and having committed offences under the Crimes Act 1900 (NSW). It refers to forgery and a lack of jurisdiction of this Court on the footing that only a Chapter III court has jurisdiction to give him redress. This is, ostensibly, a reference to courts that may exercise federal judicial power under Chapter III of the Constitution (which is ss 71 to 80).

4. Separately, on 13 February 2023, Mr Hester filed a Summons in the Court of Appeal for leave to appeal. That application has not yet been given a hearing date.

5. The matter came before Black J again on 20 March 2023. There was some debate. Mr Hester raised issues including ones referred to as political and human rights issues and the relationship between the Commonwealth, the Crown and the Monarch. His Honour stood the matter over to today, 24 April 2023, in the Corporations List and, when it was called over, his Honour referred it to me.

6. On 21 March 2023, Mr Hester filed a motion in the Court of Appeal to be reinstated in possession of the property, pending his application for leave to appeal. That application was heard and dismissed by Brereton JA on 3 April 2023: Hester v Commonwealth Bank of Australia [2023] NSWCA 70.

7. The Bank applies by Interlocutory Process for dismissal of the proceedings or, alternatively, that the claim be struck out, together with indemnity costs.

8. Mr Hester’s proceedings are plainly doomed to fail. They are frivolous and vexatious. I consider them to be an abuse of process. No grievance cognisable by the law in connection with the Bank’s claim (the subject of the earlier judgment) is disclosed. To strike out the proceedings would have no utility.

9. I make the following orders:

1. Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

2. The plaintiff is to pay the defendant’s costs on an indemnity basis.

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