McLean v Westpac Banking Corporation

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FEDERAL COURT OF AUSTRALIA

McLean v Westpac Banking Corporation [2013] FCA 126

Citation: McLean v Westpac Banking Corporation [2013] FCA 126
Parties: SHONA DIMITY MCLEAN v WESTPAC BANKING CORPORATION, GAIL KELLY, BRIAN CAMERON SMITH, BETTY VENTOURIS and JOHN PAPASPIROS
File number: WAD 293 of 2012
Judge: MCKERRACHER J
Date of judgment: 22 February 2013
Catchwords:

ESTOPPEL – Anshun estoppel – whether applicant’s pleading of forgery and unconscionable conduct by bank officials should have been made in previous proceedings

MORTGAGES – applicant defaulted on mortgage repayments – applicant contended the first respondent was not entitled to enforce loan agreement – whether applicant’s pleading of ‘securitisation’ had merit – meaning of ‘securitisation’ – accord and satisfaction plea

PRACTICE AND PROCEDURE – McKenzie Friend – applicable principles

PRACTICE AND PROCEDURE – summary judgment – abuse of process – attempt to re-litigate issues ventilated in various State courts – no reasonable prospect of success  
Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) r 26.01
Cases cited:

Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

McLean v Westpac Banking Corporation [2012] WASCA 152

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v EJ Smith [1982] 2 NSWLR 608
Schagen v R (1993) 8 WAR 410
Smith v R (1985) 159 CLR 532
Westpac Banking Corporation v McLean [2012] WASC 182
Date of hearing: 19 December 2012
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 61
Counsel for the Applicant: The Applicant appeared in person with
Mr Ahmed Abouabdillah (McKenzie Friend)
Counsel for the First, Second, Third and Fourth Respondents: JE Scovell
Solicitor for the First, Second, Third and Fourth Respondents: Gadens Lawyers
Counsel for the Fifth Respondent: The Fifth Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 293 of 2012
BETWEEN:

SHONA DIMITY MCLEAN
Applicant
AND:

WESTPAC BANKING CORPORATION
First Respondent

GAIL KELLY
Second Respondent

BRIAN CAMERON SMITH
Third Respondent

BETTY VENTOURIS
Fourth Respondent

JOHN PAPASPIROS
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

22 FEBRUARY 2013

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s originating application filed on 25 October 2012 is dismissed.

2.The applicant’s interlocutory application filed on 17 December 2012 is dismissed.

3.The applicant is to pay the costs of the application including costs of the respondents’ interlocutory application filed on 26 November 2012, to be taxed if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 293 of 2012
BETWEEN:

SHONA DIMITY MCLEAN
Applicant
AND:

WESTPAC BANKING CORPORATION
First Respondent

GAIL KELLY
Second Respondent

BRIAN CAMERON SMITH
Third Respondent

BETTY VENTOURIS
Fourth Respondent

JOHN PAPASPIROS
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE:

22 FEBRUARY 2013

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

  1. The applicant seeks relief against the first respondent (Westpac) and several of its officers in relation to a…

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Details
Case
[2013] FCA 126
Decision Date

CaseChat Overview and Summary

The case of McLean v Westpac Banking Corporation was heard in the Federal Court of Australia. The dispute revolves around allegations made by the applicant against Westpac Banking Corporation, Betty Ventouris, and Mr. John Papaspiros. The applicant claims forgery, breaches of the Crimes Act 1914, and various other grievances related to the securities documentation, which had been adjudicated in earlier Supreme Court and appeal proceedings. The court was tasked with determining whether the applicant's claims were valid and if the case should proceed or be dismissed as frivolous and vexatious.

The legal issues before the court included whether the doctrine of Anshun estoppel applied to preclude the applicant from raising certain claims after the earlier proceedings, and whether the allegations made in the statement of claim constituted a valid cause of action. The court considered whether the applicant had standing to bring claims under the Crimes Act 1914 and whether the claims were frivolous or vexatious. Additionally, the court examined whether the statement of claim disclosed any reasonable cause of action and if the proceeding was an abuse of the court's process.

The court ruled that the applicant was estopped from raising the forgery claim due to the doctrine of Anshun estoppel, as the claim should have been made in the earlier proceedings. The court found the allegations of breach of the Crimes Act 1914 to be without foundation and lacking any conceivable cause of action. Furthermore, the court concluded that the proceeding was frivolous, vexatious, and fanciful, with no reasonable prospect of success. The court found that the applicant's claims were based on issues already adjudicated in the earlier proceedings and made unsupported, outrageous allegations. The court held that the statement of claim failed to disclose any legitimate cause of action and was an abuse of the court process.

As a result of the court's findings, the statement of claim was struck out, and the applicant's originating application was dismissed. The court declined to make a declaration that the applicant was vexatious at that stage but left the possibility open for future consideration if the applicant pursued further litigation. Additionally, the court decided not to award costs on an indemnity basis, considering it likely to be academic given the dismissal of the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Alternatively, the doctrine of Anshun estoppel precludes the applicant from raising an allegation of forgery at this late time. There is no evidence to suggest that such a claim was not open to have been made on the facts as known and the only proper inference is that such a claim could and should have been made in the earlier proceedings. In those circumstances the applicant will be estopped from making the claim at a subsequent point in time: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (at 604). If such a claim was open, it was relevant to the earlier litigation and it would have been at least unreasonable not to have raised it before Justice Kenneth Martin. The loan and security documents were directly the subject of the Supreme Court proceedings and the appeal proceedings. In addition, those documents were the basis upon which the applicant brought another (rejected) claim in the State Administrative Tribunal (SAT) (CC 85 of 2010). The first respondent in the earlier proceedings successfully sought possession and judgment in its favour based upon the loan and security documents. A CLAIM THAT THERE IS ‘NO EVIDENCE’ OF VARIOUS THINGS This claim is raised in numerous paragraphs of the statement of claim which will not be repeated but the paragraphs are identified as [16]-[19], [21]-[22], [25]-[26], [33]-[54], [57], [64], [83], [92], [94]-[116] and [125]-[127]. There is an underlying theme of the pleading in many of the paragraphs to the effect that the respondents or some of them have not provided evidence of a thing or, alternatively, that the applicant has seen no evidence of a thing. The things to which these assertions relate can only be relevant to the securities documentation in respect of which judgment has been given in the first instance in the Supreme Court proceedings and affirmed on appeal in the appeal proceedings. The suggestion that such proposition should be entertained in this Court in the light of that background cannot be sustained. In any event, as the respondents assert, the applicant’s claim must be one based on material facts put forward to support a conclusion in their favour. The repetition on numerous occasion of the lack of evidence of various things does not ground any cause of action.ALLEGED BREACH OF THE CRIMES ACT 1914 (CTH) AND WESTPAC’S KNOWLEDGE OF THE TRUE INCOME DETAILS OF MS MCLEAN Paragraph 3 of the statement of claim is set out above at para 11. Paragraph 27 of the statement of claim provides as follows:[Westpac], BETTY VENTOURIS and Mr John PAPASPIROS have acted arbitrarily and capriciously, have abused their discretion and have acted in contravention and contrary to sections of the Commonwealth Crimes Act. The respondents written submissions are brief and to the following effect:29.Putting aside the outright preposterousness of these allegations, they disclose no conceivable cause of action. 30.There is no jurisdiction in this Court to hear allegations of any breach of the Crimes Act 1914 and certainly the Applicant has no standing to do so in any case.

Decision

Reasons for decision

I can discern no basis at all for this aspect of the pleading. It is entirely without foundation. CONCLUSION ON THE RESPONDENTS’ APPLICATION FOR SUMMARY JUDGMENT It is unnecessary to refer to the summary judgment principles at any length. Section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) provides a lower barrier to a successful summary judgment application. The Court must nevertheless proceed with caution so as not to do an injustice, particularly in the case of a self-represented litigant. There is no reasonable prospect of the applicant successfully prosecuting this proceeding or any part of it. It is frivolous, vexatious and fanciful. No reasonable cause of action is disclosed and the proceeding is an abuse of process of the Court. Even if there were any legitimate aspect which could have been raised, it should have been raised during the Supreme Court proceedings and the appeal proceedings. To the extent that the statement of claim can be understood at all, it fails to disclose any cause of action. It relies on issues that have already been adjudicated in the Supreme Court and Court of Appeal, makes fanciful and outrageous allegations and raises matters which, if there was any truth or any merit in them, should have been raised in the earlier proceedings. I can discern no hope of saving the statement of claim. The respondents should not have to wait any longer for the inevitable. Nor should the public resources of the Court be further wasted. The statement of claim will be struck out and the applicant’s originating application dismissed. In those circumstances, it is unnecessary to consider a variety of alternative applications pursued by the respondents such as the removal of Westpac and the third respondent as parties to the proceeding. ANCILLARY MATTERS Additional relief has been sought by the respondents in terms of an application to declare the applicant vexatious. This issue was not specifically addressed in the course of oral argument. It was certainly not addressed by the applicant in response. My present disposition would be to decline to make such a declaration as there has been no proper consideration of the individual position of the applicant. I am mindful that it was Mr Abouabdillah rather than the applicant herself who drew the statement of claim. While the applicant may be seriously misguided, it is clear that she has been led into error and depends substantially on the assistance of Mr Abouabdillah. I would not rule out consideration of such an application and, for my part, would seriously consider it if the applicant took further steps to pursue litigation of the nature such as that now dismissed but, for present purposes, I would decline to make such a declaration. The respondents have also sought an indemnity costs order against the applicant. Again, this topic was not expressly discussed in the course of the hearing but largely for the same reasons as declining to make a declaration of the nature sought against the applicant at this stage, I would be disinclined to award the respondents costs an indemnity basis. In any event, I suspect that such an order would be academic in the present circumstances.

Ratio Decidendi

Legal Principle Established

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