Martin, A.G. v Commonwealth Bank of Australia

[1993] FCA 769

7 6 9       93

JUDGMENT No. ........ ..,....... I .....,,.,.,.

IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY 1

No. ACT G 9 of 1993

DISTRICT REGISTRY )

:I	GENERAL DIVISION
!	BETWEEN: ANTHONY GILBERT MARTIN and

SUE DOLORES MARTIN

Applicants

I

AND: COMMONWEALTH BANK OF AUSTRALIA

Respondent

MINUTE OF ORDER

THE COURT	Neaves, Miles and Einfeld JJ.
DATE OF ORDER	27 October 1993
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

36 of the Federal Court Rules.

2.   The applicants pay the respondents costs of the application.

Note:  Settlement and entry of orders is dealt with in Order

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	)
1 No. ACT G 20 of 1993
DISTRICT REGISTRY	1 1
GENERAL DIVISION	j

BETWEEN: ANTHONY GILBERT MARTIN and

SUE DOLORES MARTIN

Applicants

AND: COIOfONWEALTH BANK OF AUSTRALIA

Respondent

MINUTE OF ORDER

THE COURT	Neaves, Miles and Einfeld JJ.
DATE OF ORDER	27 October 1993
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.   The applicants pay the respondents costs of the application.

Note:  Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FZUEKAL COURT OF AUSTRALIA

)

1

AUSTRALIAN CAPITAL TERRITORY

1	No. ACT G 9 of 1993
1	No. ACT G 20 of 1993

DISTRICT REGISTRY

1

1

GENERAL DIVISION

1

BETWEEN: ANTHONY GILBERT MARTIN and

SUE DOLORES MARTIN

Applicants

AND: COMMONWEALTH BANK OF AUSTRALIA

Respondent

CORAM: Neaves, Miles and Einfeld JJ.

DATE: 27 October 1993

EX TEMPORE JUDGMENT

THE COURT:

On 18 February 1993, Anthony Gilbert Martin and Sue Dolores Martin ("the applicants") filed in this Court an application (numbered ACT G 9 of 1993) for leave to appeal from the judgment of the Supreme Court of the Australian Capital Territory (Gallop J.) given on 29 January 1993 and	from part of the judgment of that Court (Higgins J.) given on	12 February 1993.
On 18 March 1993, the applicants filed in this Court an application (numbered G 20 of 1993) for leave to appeal from the judgment of the Supreme Court of the Australian Capital Territory (Higgins J.) given on 26 February 1993.
Each of the judgments of the Supreme Court was given in a proceeding in that Court numbered SC 21 of 1993 in which the applicants were plaintiffs and the Commonwealth Bank of Australia ("the Bank") was the defendant.
The applicants no longer seek leave to appeal from the judgment given by Gallop J. on 29 January 1993.
The proceeding numbered SC 21 of 1993 was commenced in the Supreme Court by Originating Summons dated 11 January 1993. The applicants, as plaintiffs, sought the following orders against the Bank as defendant -

"1. A declaration that the plaintiff [sic] be allowed to repay the defendant the sum of $30,000 with interest by installment [sic] to comply with the defendant's offer of settlement dated 21st of December 1992 of all matters in dispute between the plaintiff and their company Individual Homes Pty Ltd as one party and the defendant as the other party.

2. That the defendant pay the plaintiff [sic] costs of and incidental to this application.

3.     Such further or other orders as this honourable

court thinks fit."

The Originating Summons was supported by an affidavit of the female applicant sworn on 11 January 1993. Annexed to that affidavit was a copy of a letter dated 21 December 1992 addressed by the Bank to the Secretary, Individual Homes Pty Ltd. That company is described in the affidavit as the applicants' family company. The letter reads :

"I refer to Deed of Release with the CBA forwarded to you via your Solicitors Meyer Boettcher and Clapham in October 1990.

Please note that due to the time elapsed since then, that [sic] the offer will be considered as lapsed should the amount of $30,000 as mentioned within that Deed of Release not be received withln 21 days of the date of this letter."

The affidavit also annexed a copy of a letter dated

8 January 1993 addressed by the applicants to the Bank reading

as follows:

"Reference is made to your letter dated 21-12-92 addressed to Individual Homes Pty Ltd, received on 24-12-

92.

1. Anthony Gilbert Martin and Sue Dolores Martin as

parties in their individual capacities to the original Deed of Compromise dated 4-10-90, hereby make the following equivalent equitable offer of compliance with your letter of 21-12-92 - i.e. that we will iointlv as individuals repay the said sum of $30,000 at a rate of

$800 per month with interest, starting forthwith, and

sign and seal the relevant documents in our individual

capacity and as directors of Individual Homes Pty Ltd.

2. On 5th January, 1993, the C/W Development Bank

declined our application to increase AG & SD Martin's current first mortqaqe loan by $30,000 and pay the said

$30,000 to you by 11-1-93."

release as between Individual Homes Pty Ltd, the applicants	It appears that, at an earlier point of time, a draft deed of
and the Bank had been prepared in relation to disputes as between those parties but that the deed was never executed.

By motion, notice of which was given on 21 January

1993, the Bank sought orders that the originating process be

struck out and that the applicants pay the Bank's costs of the
application.

On 29 January 1993, with the applicants not in attendance, Gallop J. made the following orders:

"1. The Originating Summons dated the 14th day of January 1993 be struck out.

2.  The Plaintiffs pay the Defendant's costs of the dismissed action and the costs of the application."

It appears that the date of the Originating Summons is incorrectly stated in the order because the evidenced document is dated 11 January 1993.

The matter came before Higgins J. on 12 February 1993 upon a motion by the applicants, supported by the affidavit of the male applicant sworn 8 February 1993, to set aside the orders made by Gallop J. on 29 January 1933 and for consequential orders.

On 12 February 1993, Higgins J. made the following

orders -

"1. The orders made herein on the 21st of January 1993 by Mr Justice Gallop be set aside.

2.  The Plaintiff pay the Defendant's costs in the Notice of Motion heard before Mr Justice Gallop.

3.  The Defendant's Notice of Motion dated the 21st day of January 1993 be returnable for the 26th day of February 1993."

The reference to the defendant's notice of motion dated 21 January 1993 is a reference to the motion which came before Gallop J. on 29 January 1993.

On 19 February 1993, notice of a further motion was given by the Bank seeking orders that the originating process be struck out and that the applicants pay the Bank's costs of the application.

On 26 February 1993, Higgins J. made the following

orders -

"1. he Defendant, The Commonwealth Bank of Australia, be dismissed from the proceedings.

2.  The relief sought in the Originating Summons be struck out.

3.  The Plaintiffs be granted leave to amend the Writ of Summons so that Individual Homes Pty Limited be named as the Defendant.

4.  The Plaintiffs pay the Defendant's costs of the Notice of Motion."

The reference to the Writ of Summons appears to be a reference to the applicants' Originating Summons dated 11 January 1993. On the other hand, it is not immediately apparent why the orders of 26 February 1993 were made. The applicants before us acknowledge and concede that the Originating Summons was misconceived. Appearing in person, the male applicant asked us to grant leave to appeal to enable him and his wife to amend the summons to seek a declaration that they were not indebted to the Bank and to claim

substantial damages for personal anguish and, apparently,

other pain and suffering arislng from their treatment by the Bank over many years. Perhaps Higgins J s:leave to amend the summons arose from some request by the applicants to amend although it is difficult to understand why and how proceedings by the applicants against the Bank can or should be reconstituted as proceedings by the applicants against their own company. It is not clear what their claim would be or what relief might be granted.

In any event, this application for leave to appeal is based upon an alleged error of law or principle by Higgins J. As the application for leave is necessary because this matter is interlocutory and the applicants are without legal representation, we have approached the matter on the basis that if the appeal could possibly succeed, leave should be granted. But the appeal cannot succeed for a number of reasons of which the principal ones are these:

1.    There was no agreement between the parties for the settlement of any dispute or debt by the payment by the applicants of the $30,000. There appears to have been an offer by the Bank in 1990 to accept some such sum. The applicants say that the offer was later renewed. We accept for the purposes of argument that it was renewed on 21 December 1992 by the letter from the Bank to Individual Homes Pty Ltd to which earlier reference was made. But it was never accepted. All that happened was that the applicants made a counter offer to pay by instalments which was not accepted by the Bank. It seems that the Originating Summons flowed from the .

Bank's refusal to permit payment by instalments. Neither the Supreme Court nor this Court has power to order payment by instalments in such circumstances, even if the settlement agreement had been executed. Hence the refusal by Higgins J. to entertain the claim cannot be successfully challenged.

2.    Nor could the originating summons be amended to make the new claims now advanced by the applicants. The Bank conceded before us that the applicants are not personally liable to the Bank for the debt in question but that the debt is owing by the applicants' company Individual Homes Pty Ltd. Hence there is no basis for the declaratory relief now suggested.

3.    As for the proposed claim for damages, Order 57 rule

1 of the Supreme Court Rules provides that an

Originating Summons is to be used only for declaratory relief or for the construction of written instruments. Order 2 rule 1 provides that other proceedings are to be commenced by writ of summons followed by pleadings. There is no way of reconstituting the current proceedings by way of Originating Summons into a damages claim. Higgins

J. does not seem to have been asked to do so but if

he had been, he would have been perfectly entitled, and correct, to refuse the request. There is nothing to stop the applicants from commencing such a claim now.

For these reasons, the applications for leave to appeal are dismissed. The applicants will pay the respondent's costs of the applications.

I certify that this and the preceding 6 pages are a true

Dated: 27 October 1993

I

Anthony Gilbert Martin attended in person and addressed the	i
Court on behalf of the applicants	C
I .
Counsel for the respondent	: Mr I.J. Nicol

Solicitors for the respondent : Blake Dawson Waldron
Date of hearing and judgment : 27 October 1993