Hubner, Colin Richard v Australia and New Zealand Banking Group Ltd
[1997] FCA 1495
•21 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
Judgments and Orders - amending, varying and setting aside a judgment - possibility for fresh application to set aside default judgment where previous application unsuccessful - whether attack on decision of Supreme Court (Qld) should be mounted in Supreme Court (Qld) - need to avoid possibility of contradictory judgments.
Practice & Procedure - Anshun doctrine - whether an application to set aside a default judgment may give rise to an issue estoppel.
Trade Practices Act 1974 - ss 86A(1) and (2)
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 - cons.
Hall v Nominal Defendant (1966) 117 CLR 423 - cons.
Re Martin; Ex parte Amtron Australia Pty Ltd (1996) 62 FCR 438 - appr.
Spencer Bower, Turner and Handley “The Doctrine of Res Judicata”, 3rd ed, 1996
COLIN RICHARD HUBNER V AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
QG 163 of 1997
JUDGE:
BEAUMONT J.
DATE OF ORDER:
21 NOVEMBER 1997
WHERE MADE:
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 163 OF 1997
BETWEEN:
COLIN RICHARD HUBNER
APPLICANTAND:
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
RESPONDENT
JUDGE:
BEAUMONT J.
DATE OF ORDER:
21 NOVEMBER 1997
WHERE MADE:
BRISBANE
ORDERS:
Transfer the matter to the Supreme Court of Queensland.
Costs reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 163 of 1997
BETWEEN:
COLIN RICHARD HUBNER
APPLICANTAND:
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
RESPONDENT
JUDGE:
BEAUMONT J.
DATE:
21 NOVEMBER 1997
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BEAUMONT J:
INTRODUCTION
On 9 April 1997 the present respondent, Australia and New Zealand Banking Group Limited (“the Bank”), instituted proceedings in the Supreme Court of Queensland at Townsville by writ of summons. The respondent claimed against Colin Richard Hubner, the present applicant, and Yvonne Hubner, Mr Hubner's wife, for the recovery of possession of land as mortgagee. The Bank claimed that the defendants had defaulted in the payment of principal and interest under the terms of a mortgage and that the defendants were, on 4 November 1996, in arrears under the mortgage in the payment of principal and interest in the sum of $640,551.02.
The land in question was a property situated at 333 Draper Street, Cairns. The mortgage was an all-monies mortgage which secured advances made by the Bank to, for, or on account of, Courtdeen Pty Ltd, an investment company controlled by Mr and Mrs Hubner. On 19 June 1997 the Bank signed default judgment in the Supreme Court. In default of delivery of defence, under the terms of the default judgment, it was determined that the Bank recover possession of the Draper Street property.
On 10 July 1997 Mr and Mrs Hubner, acting without legal representation (a position which unfortunately endures), filed a summons in the Supreme Court seeking to set aside the default judgment, and further seeking leave to enter a defence and counter-claim. This application was dealt with by Byrne J in the Supreme Court on 15 September 1997. His Honour refused the application, essentially on the ground that, on the material before him, there did not appear to be a defence upon the merits. On 13 October 1997, the Bank issued a writ of possession out of the Supreme Court directing the Sheriff of the Supreme Court to recover possession of the land.
On 14 October 1997, Mr Hubner commenced proceedings against the Bank in the Federal Court. As has been noted, Mr Hubner acted without the benefit of legal advice in preparing his initiating document. Under that document, which is informal in its language, Mr Hubner claims restitution and damages from the Bank as well as interlocutory relief, restraining the Bank from taking any further proceedings in the Supreme Court ejectment action.
On 16 October 1997, Mr and Mrs Hubner filed an application in the Supreme Court seeking a stay of execution of the writ of possession. That application was dealt with by Jones J on 6 November 1997. In his reasons, Jones J noted the previous application before Byrne J and further noted that since the dismissal by Byrne J of that application, Mr Hubner had lodged a caveat over the land and instituted proceedings in the Federal Court. His Honour noted further that Mr Hubner had requested that an order be made under the Jurisdiction of Courts (Cross-Vesting) Act 1987, transferring the proceedings to the Federal Court.
Having considered whether the evidence before him differed in any material respect from the evidence before Byrne J, his Honour concluded that even if certain facts said to have been recently discovered had been available in the application dealt with by Byrne J, it was unlikely that the order would have been "in any way different." Accordingly, Jones J refused to set aside the order of Byrne J. Jones J then went on to consider whether the caveat should be removed. His Honour noted that the claims raised in this Court were claims for damages only and that no relevant proprietary interests could be established so as to justify the continuance of the caveat on the Register. His Honour said:
“The cause of action against the bank on the material adduced before me shows that its prosecution is not without difficulty. Further, that material would not inspire confidence that the applicants would be likely to be awarded damages approaching the level of their indebtedness to the respondent. In my view, the balance of convenience favours the removal of the caveat, and I so order.”
Earlier in his reasons, Jones J dealt with the cross-vesting application as follows:
“It is not possible for me to consider such a cause of action being a matter which would have to be raised in the Federal Court, section 5(4) of the Act. Even if I have the power to do so - perhaps pursuant to section 8 of the Act - I would not in any event order such a transfer when judgment in the Supreme Court action has already been entered, and an application to set the judgment aside refused.”
MR HUBNER’S MOTIONS IN THIS COURT
On 14 November 1997, Mr Hubner filed a notice of motion in the present matter seeking an order that:
“1.The execution of a writ of execution obtained by the ANZ Banking Group Limited in the Supreme Court of Queensland outside Federal jurisdiction be stayed pending an appeal to the Federal Court from the judgment of Justice Jones brought down in the Supreme Court of Queensland on the 6th day of November 1997.”
On 17 November 1997, Mr Hubner filed another notice of motion for the following orders:
“1.That an urgent stay of execution be granted to stop the respondent from using the Sheriff to seize their customer's guarantor's property; and forcibly have the applicant removed from his land before the full extent of the respondent's liability to their customer is established ...
2.An urgent order that the respondent give discovery prior to pleadings; ...
3.That any advances or financial accommodation given to Cheryl Ann White without the guarantor's knowledge be disclosed.”
Both motions are presently before me. They are supported by three affidavits sworn by Mr Hubner on 13 October 1997 and 12 and 14 November 1997. In those affidavits, Mr Hubner seeks to outline a number of claims which he wishes to pursue against the Bank. They include claims of misleading and deceptive conduct under s 52 of the Trade Practices Act 1974. The evidence in his affidavits and the evidence given orally by Mr Hubner before me appears to cover at least some of the same ground as the evidence adduced before Byrne J and before Jones J in the Supreme Court proceedings. However, it does appear that the material now adduced by Mr Hubner covers other ground as well.
THE BANK'S ARGUMENTS
(a) The notice of motion filed 14 November 1997
It will be recalled that in this motion, Mr Hubner seeks a stay of execution of the writ of execution. On behalf of the Bank, it is submitted that there is no jurisdiction in this Court to stay the execution of a judgment of a superior court of a State with respect to a matter involving no exercise of Federal jurisdiction. It is further submitted that, in any event, no appeal lies to this Court from the decision of Jones J unless, when dismissing the summons before him, his Honour was exercising Federal jurisdiction.
It is submitted that Jones J was not exercising Federal jurisdiction, notwithstanding the reference to the cross-vesting legislation. It is further said that, even if this Court had jurisdiction to grant a stay in the exercise of its discretion, no case for intervention by this Court has been made out.
(b) The notice of motion filed 17 November 1997
On behalf of the Bank, it is submitted that the final relief sought by Mr Hubner in this Court is for a money sum and that even if the application for a stay of execution is treated as an application for an injunction restraining the Bank from enforcing its rights under a judgment obtained in another court, this Court should not grant any such relief.
It is then submitted, insofar as Mr Hubner now appears to challenge the validity of the original transaction, that being the third party mortgage or guarantee, that these are matters that could properly, and ought properly, to have been raised in the Supreme Court proceedings. So, the argument runs, by application of the Anshun doctrine, Mr Hubner is estopped from raising such a matter now. Reliance is placed upon Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 and Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287.
It is said that if Mr Hubner claims that he was wrongly denied the opportunity to raise such matters in the Supreme Court, his remedy was to appeal in that court against the order of Byrne J. It is further said that, in any event, a default judgment can constitute res judicata. Reliance is placed upon Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 and upon Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502.
CONCLUSIONS ON THE MOTIONS
As I have already foreshadowed in the course of argument, there are substantial difficulties, both real and perceived, associated with this Court dealing with what is both in form and in substance a collateral attack on the judgment of another superior court.
For present purposes, I am prepared to assume that an application to set aside a default judgment is in truth an interlocutory application (see Hall v Nominal Defendant (1966) 117 CLR 423 at 440). That is to say, it is open to a party to bring a fresh application to set aside a default judgment, notwithstanding that a previous application has been unsuccessful. However, there are, of course, limits to the multiplicity of such applications, and circumstances can arise where the bringing of more than one such application could amount to an abuse of process.
I also accept, as Cooper J pointed out in Re Martin; Ex parte Amtron Australia Pty Ltd (1996) 62 FCR 438, that, whilst it is accurate to say that a "truly" interlocutory decision cannot found a relevant estoppel, there can be circumstances where an issue is finally determined in what are interlocutory proceedings (see at 442). In other words, it is possible that proceedings which, in form, are interlocutory can give rise to an issue estoppel. So that, for instance, in certain circumstances, an application to set aside a default judgment may give rise to an issue estoppel.
I further accept that a judgment or order by default is as much a judicial decision in favour of the plaintiff as any other judgment or order. However, as Spencer Bower, Turner and Handley have observed (“The Doctrine of Res Judicata”, 3rd edition, 1996 at 42):
“As in the case of a consent judgment or order, questions may arise as to the issues of fact or law determined by a default judgment. The answer may be different from that given for a consent judgment. For while a default judgment may be looked at as a form of judgment by consent, it may speak for nothing but the fact that a defendant, for unascertained reasons, negligence, ignorance, or indifference, has suffered the judgment to go against him.”
As has already been noted, Mr Hubner has sought to act for himself throughout all of this litigation. I propose, therefore, to view the default judgment in the light of the passage cited from Spencer Bower et al and to conclude that it may be possible for circumstances to exist in which Mr Hubner could successfully apply to set aside the default judgment.
However, it is equally clear, both in terms of the reality and in terms of the perceptions involved, that there are strong policy reasons why any attack sought to be made upon the judgment of Byrne J or upon the judgment of Jones J should be mounted, if at all, in the Supreme Court. To allow the present matter to proceed would be to permit the possibility of what Dawson J described in Chamberlain v The Deputy Commissioner (above, at 512) as "contradictory judgments which ought not be permitted save in special circumstances".
By s 86A(1) of the Trade Practices Act, it is provided that, in the civil proceedings there described - and the subject proceedings are of that description - this Court may, upon application of a party or of this Court's own motion, transfer the matter to a court of a State. By s 86A(2), it is provided that a transfer shall not be made unless the other court has power to grant the remedies sought before the Federal Court in the matter, and it appears to the Federal Court that, inter alia, it is otherwise in the interests of justice that the matter be determined by the other court. In my view, the interests of justice and fairness in the circumstances of the present case dictate that the whole of these proceedings, including the motions presently before me, be transferred to the Supreme Court.
ORDERS
Accordingly, I make the following orders:
Transfer the matter to the Supreme Court of Queensland.
Costs reserved.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 21 November 1997
The Applicant: The applicant appeared in person Counsel for the Respondent: Mr T North Solicitor for the Respondent: Minter Ellison Date of Hearing: 20-21 November 1997 Date of Judgment: 21 November 1997
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