McAtamney v Australia and New Zealand Banking Group

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0082

THOMAS JOSEPH MCATAMNEY	Applicant
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 8
JUDGMENT APPEALED FROM:	McAtamney v ANZ Banking Group (Unreported, County Court of Victoria, Judge Tran, 2 June 2023)

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SUMMARY JUDGMENT – Application for extension of time to file application for leave to appeal from summary dismissal of applicant’s proceeding – Delay of 41 days adequately explained – Proposed application for leave to appeal totally without merit – Futile to grant extension of time – Application for extension of time refused – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14C and 14D.

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Counsel
Applicant:		Unrepresented
Respondent:		Mr M O’Haire
Solicitors
Applicant:
Respondent:	HWL Ebsworth Lawyers

BEACH JA:

In April 2022, Thomas McAtamney, a former employee of Nylex, commenced a proceeding in the Supreme Court against the Australia and New Zealand Banking Group. While the cover of the writ described the defendant as ‘Australian and New Zealand Bank’, and the statement of claim endorsed on the writ named the defendant as ‘ANZ SuperAdvantage Superannuation Fund’, in circumstances I will describe later, the plaintiff made it clear that the defendant he sued was Australia and New Zealand Banking Group.
The plaintiff’s statement of claim commenced with a request that the court ‘review the payment for my superannuation made by ANZ Bank who for many years were the Trustee of the superannuation fund, as I believe I was denied my full payment’. The statement of claim then identifies further requests and sets out some history of proceedings before the Superannuation Complaints Tribunal and the Federal Court. At one point in the statement of claim, the Court is asked ‘to acknowledge my claim as the ANZ Bank and the Trustee have acted dishonestly in the handling of [my] Superannuation’. Further matters of history and other assertions are made. These assertions include an allegation that the plaintiff has only been paid $291,000 of an amount of $636,000, which is said to be ‘still outstanding plus interest’. The statement of claim goes on (as typed):
I ask the Court that the money that was removed from the superannuation should be fully explained or returned, as it belongs to the members and as I am the last member of the fund. The $119,000,000 plus all contributions were removed between 1999–2004. I believe this money was used to pay debts owed by Nylex.
In the prayer for relief, the plaintiff makes a number of claims for sums of money. Additionally he seeks ‘a full account of the government superannuation guarantee were [sic] the contribution of $75.20 paid weekly’. The statement of claim concludes that ‘compensation should be given as I have lost so much over the years waiting for some form of Natural Justice’.
In its defence, the defendant admitted that, at the time of his retrenchment from Nylex in 2006, the plaintiff worked for Nylex, the plaintiff had been a member of the ING MasterFund, which is now known as the OnePath MasterFund (‘the fund’), ‘on the Huon Corporation Staff Superannuation Plan within the ANZ Super Advantage section of the Fund. Additionally, the defendant admitted that the trustee of the fund had agreed to pay the plaintiff a benefit; that the plaintiff had lodged a complaint with the Superannuation Complaints Tribunal (‘the tribunal’); that a final determination had been made by the tribunal; that the trustee had paid the plaintiff an amount in accordance with the final determination of the tribunal; and that the Federal Court had dismissed the plaintiff’s application for an extension of time to appeal the tribunal’s final determination.[1]
[1]As to which, see McAtamney v Superannuation Complaints Tribunal [2021] FCA 1539 (Moshinsky J). See also, McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062 (North J).
In its defence, the defendant specifically denied that it was or ever had been the trustee of the fund. The defendant identified the body which it asserted had been the trustee of the fund since 2006 (OnePath Custodians Pty Ltd, formerly known as ING Custodians Pty Ltd). After referring to s 41(3) of the Superannuation (Resolution of Complaints) Act 1993 (Cth), s 31(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (‘the Supervision Act’), and reg 13.17B of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the defendant pleaded that, by reason of the operation of s 341 of the Supervision Act, the trustee of the fund was not, in any event, liable in any civil proceeding in relation to the benefit paid to the plaintiff.
After the defendant filed and served its defence, the proceeding was transferred to the County Court. In April 2023, the defendant filed a summons seeking summary judgment pursuant to s 63 of the Civil Procedure Act 2010 and/or r 22.22(b) of the County Court Civil Procedure Rules 2018; alternatively, an order pursuant to r 23.02 that the statement of claim ‘be struck out or amended on the grounds that it does not disclose a cause of action’.
The defendant’s summons came on for hearing before her Honour Judge Tran on 2 June 2023. On that day, after hearing argument from the parties, her Honour acceded to the application for summary judgment and ordered that the proceeding be dismissed with costs.
In her reasons for judgment, Judge Tran noted that there had been some ambiguity as to the name and identity of the defendant but that the plaintiff had accepted in argument that the intended defendant was ANZ Banking Group (being the party he has now named as respondent in the documents he has filed in this Court).
After noting the issue about the name and identity of the defendant, the judge said:
An application for summary judgment can only be granted if the court is satisfied that the claim has no real prospects of success. As established by Warren CJ and Nettle JA in Lysaght Building Solutions v Blanalko Pty Ltd [2013] VSCA 158, ‘The test of no real prospects of success may be viewed as, to some degree, more liberal, than the former hopeless or bound to fail, but it still must be established that the plaintiff has no real prospects of success, and only a fanciful chance of success’.
In the present case, the simple answer to the plaintiff’s claim is that there is nothing in any of the materials before me to suggest that the ANZ Banking Group has any liability for the claims sought to be made by the plaintiff.
I well understand the plaintiff’s confusion, given the frequent references through the documents to entities with the word ‘ANZ’ in their name. However, it is and remains the law of this country, that corporate identity is respected, and the mere fact that the word ‘ANZ’ is used in a letterhead or in some other document cannot be sufficient to establish that ANZ Banking Group is in some way liable for a cause of action said to arise from those documents.
That applies, even if one assumes that ANZ Banking Group is the entity meant by the words ‘ANZ Business Bank’ and ‘ANZ Financial Planner’ in the document which is PA837 of the plaintiff’s affidavit. The mere reference to ‘ANZ Business Banking’ and ‘ANZ Financial Planner’ as being your adviser in a document, even if one assumes that that is a reference to ANZ Banking Group, does not suffice to give rise to a claim with a real prospect of success against ANZ Banking Group.
That, in my view, suffices to justify the determination of this application in favour of ANZ Banking Group. However, for completeness and in deference to the detailed and careful submissions made by Ms Webb[2] on behalf of Mr McAtamney, I’ll now consider each of the four claims, which during the course of the hearing today were said to give rise to liability by the defendant.
[2]The transcript records that the judge gave leave to Ms Webb, who was not a legal practitioner, to ‘speak on behalf of’ the plaintiff (as her Honour had done at an earlier hearing of the matter).
The judge then dealt with each of the four claims put forward in argument before her, identifying in each case why the claim had no real prospects of success. In respect of one claim, the judge observed that it was only the Federal Court which had jurisdiction to deal with that claim; that the plaintiff had taken proceedings in the Federal Court and that those proceedings had been unsuccessful.[3] In relation to another claim, the judge noted that the plaintiff made allegations of fraud without having alleged any underlying primary facts from which it could be inferred that a fraud had occurred.
[3]This was the proceeding determined adversely to the plaintiff by Moshinsky J in 2021 (see n 1).
The judge concluded her reasons by saying that:
Even if one assumes that the bank used by the Trustee at the time was ANZ, that mere fact certainly does not give rise to any cause of action in Mr McAtamney.
Having considered all of those matters, although I do acknowledge the plaintiff’s frustration with this, and acknowledge the detailed submissions that have been put forward on Mr McAtamney’s behalf by Ms Webb, I am satisfied that there is no claim with a real prospect of success that can be brought in this Court against the defendant, and accordingly I’ll be dismissing the proceeding.
On 10 August 2023, the plaintiff filed in this Court an application for an extension of time for leave to appeal and an affidavit in support of that application. On that same day, he sought to file, out of time, and the Court received, an application for leave to appeal, a written case and a proposed draft summary for the Court of Appeal.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the application for an extension of time and the application for leave to appeal to a single judge of appeal for both applications to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of either of the plaintiff’s applications.[4]
[4]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.

Consideration

In his affidavit in support of his application for an extension of time, the plaintiff sets out a number of reasons why he says an extension should be granted, including:
I am 76 years old and due to my current health problems … I have been unable to attend the library to use their computers and printer.
…
As I live in a caravan park … the facilities are limited, and researching the documents to show the extent of the lies I have been told over the years is astounding, such as that the ANZ Bank owned ING before the 2017 payment after the Federal Court case. That was the only payment received for my superannuation.
Rule 64.05(1)(ab)(vi) of the Rules required the plaintiff to file his application for leave to appeal within 28 days of Judge Tran’s decision — that is, on or before 30 June 2023. His application was thus some 41 days out of time. Were the application for leave to appeal to have any merit, I would, in the circumstances of this case, be prepared to grant the plaintiff the extension of time he seeks. The delay is not great and, contrary to the defendant’s submissions, is in my view adequately explained. Moreover, there is no suggestion of any relevant prejudice being suffered by the defendant as a result of the plaintiff’s delay.
The problem for the plaintiff is that his proposed appeal has no prospects of success. There is simply no basis upon which any of his proposed grounds of appeal could succeed — those grounds being (as typed):
1.As on same documents the use of unlisted ABN. ACN, AFSL. and RES .. number suggest the ING was illegal using theses number inappropriately.
2.That ANZ SuperAdvantage held the Austrim/Nylex Super when the $119 million went missing in 1996 which severely affected the outcome of Mr. McAtamney’s Benefits.
3.In a letter dated 26th June 2007 from ING show it was A Huon Sub-plan of ANZ Super Advantage. AS Huon went into liquidation in June 2006 Why was any money transferred to Huon, as never brought Austrim /Nylex.
Having read all of the material relied upon by the plaintiff, the only conclusion one can come to is that he does not have any viable cause of action against the defendant. As the plaintiff’s proposed appeal has no real prospect of success, it would be futile to grant him the extension of time he seeks. Leave to appeal must therefore be refused. It must also be refused because the proposed appeal does not have any real prospect of success.[5] Additionally, as there is absolutely no basis upon which he could enjoy any success in an appeal from Judge Tran’s orders dismissing his proceeding, the plaintiff’s application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act.[6]
[5]Supreme Court Act 1986, s 14C.
[6]By reason of s 14D(3), the determination that the application for leave to appeal is totally without merit precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.

Conclusion

For the reasons given above, the plaintiff’s application for an extension of time and his application for leave to appeal will be refused.
In its written submissions in opposition to the application for an extension of time, the defendant sought the dismissal of that application with costs. Ordinarily, costs would follow the event upon the refusal of an application for an extension of time. That said, I will give the plaintiff the opportunity to make any submissions he wishes to make about costs, including why he should not pay the defendant’s costs of his application for an extension of time.
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[2024] VSCA 8

20 February 2024