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 26.01Cases 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 182Date 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
ApplicantAND: WESTPAC BANKING CORPORATION
First RespondentGAIL KELLY
Second RespondentBRIAN CAMERON SMITH
Third RespondentBETTY VENTOURIS
Fourth RespondentJOHN 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
ApplicantAND: WESTPAC BANKING CORPORATION
First RespondentGAIL KELLY
Second RespondentBRIAN CAMERON SMITH
Third RespondentBETTY VENTOURIS
Fourth RespondentJOHN PAPASPIROS
Fifth Respondent
JUDGE:
MCKERRACHER J
DATE:
22 FEBRUARY 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks relief against the first respondent (Westpac) and several of its officers in relation to a…
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- Case
- [2013] FCA 126
- Decision Date
CaseChat Overview and Summary
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.
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