Milne v Haynes and 6 ors

[2005] NSWSC 1107

CITATION:	Milne v Haynes & 6 ors [2005] NSWSC 1107
HEARING DATE(S):	1 November 2005
JUDGMENT DATE :	16 December 2005
JUDGMENT OF:	Latham J at 1
DECISION:	The proceedings are dismissed.; The plaintiff’s Notice of Motion is dismissed.; The plaintiff is to pay the costs on the Notices of Motion filed by each of the defendants.

CATCHWORDS:

Summary dismissal - r 13.4 UCP Rules - abuse of process - re-litigation of Family Law proceedings.

LEGISLATION CITED:

Financial Transaction Reports Act 1988 (Clth) s 3(1)(c)
Crimes Act
Family Law Act

CASES CITED:

D’Orta-Ekenaike v Victoria Legal Aid and Anor [2005] HCA 12
Dragan Markisic & Anor v Middleton Lawyers & Ors [2005] NSWSC 258
R v Beydoun (1990) 22 NSWLR 256
Mann v O’Neill (1997) 191 ALJR 204
in Preston v Star City Pty Ltd [1999] NSWSC 1273
General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125
Webster v Lampard (1993) 177 CLR 598

PARTIES:

Plaintiff - Lloyd Westbrooke Milne
Defendant 1 -Elizabeth Haynes
Defendant 2 - Sayan & Associates
Defendant 3 - Emily Carol Milne
Defendant 4 - Amanda Gale
Defendant 5 - The HSBC Bank Australia Limited
Defendant 6 - The State of New South Wales
Defendant 7 - The Commonwealth of Australia

FILE NUMBER(S):

SC 12325/2005

COUNSEL:

Plaintiff - Self Represented
Defendants 1 and 2 - I Pike
Defendant 3 - Ms Meredith
Defendant 4 - Mr A Porthouse
Defendant 5 - Mr Lucarelle
Defendant 6 - Mr Craddock
Defendant 7 - Mr S Vorreitter

SOLICITORS:

Plaintiff - Not represented
Defendants 1 and 2 - Mallesons Stephen Jaques
Defendant 3 - Gayle Meredith & Associates
Defendant 4 - Maurice May Lawyers
Defendant 5 - Dibbs Barker Stillman
Defendant 6 - IV Knight
Defendant 7 - Australian Goverment Solicitor

Defendant 5 - Dibbs Abbott Stillman

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

LATHAM

16 December 2005

12325/2005 Lloyd Westbrooke Milne v Elizabeth Haynes and 6 Ors

JUDGMENT

1. LATHAM J: From late 2003 to mid 2005 Mr Milne was engaged in family law proceedings as a result of the breakdown of his marriage. A judgment of the Family Court of Australia delivered on 28 June 2005 included several orders relating to Mr Milne’s property and assets, to the benefit of his former wife. Mr Milne brought proceedings in this Court against a number of parties who were directly or indirectly involved in the Family Court proceedings, or who were affected by the orders. Mr Milne claims variously conspiracy, breach of confidentiality, unlawful access to court documents, invasion of privacy and breaches of various statutory provisions. The alleged wrongs committed by each of the seven defendants are set out in Mr Milne’s Statement of Claim in largely narrative form.

2. Each of the seven defendants seek summary dismissal of Mr Milne’s proceedings in this Court pursuant to s 13.4 of the Uniform Civil Procedures Rules 2005. The defendants variously submit that the Statement of Claim discloses no reasonable cause of action, is prolix and confused, lacks particulars, and that the proceedings are vexatious and an abuse of process. Mr Milne resists all seven Notices of Motion filed by the defendants and seeks orders pursuant to his own Notice of Motion filed against the 5th defendant, a bank, based on an alleged denial of access to Mr Milne’s bank account and safety deposit box.

3. It became clear early in the hearing that Mr Milne’s proceedings in this Court against all seven defendants were essentially an attempt to re-litigate the issues determined in the Family Court proceedings. Mr Milne admitted that this was so. He had not appealed the decision in the Family Court because he said he had no faith in receiving a fair hearing. His perception was that the Family Court is inherently biased against husbands.

Her Honour: Am I right in thinking what you are seeking to do is in fact re-canvass the way in which the proceedings were run in the Family Court and in that way to impugn the orders made by the Family Court?
Plaintiff To some degree yes – at the heart of it I am very dissatisfied with what happened to me in the Family Court.
….

Her Honour: Has it occurred to you that one of the ways that you can attempt to address your perceived problems is to appeal against the orders of Collier J to the Full Court of the Family Court rather than this Court?
Plaintiff I am aware there is an appeal process but given the fact of the hearing I had from the Federal Family Court and given the notorious nature of the anti-husband, anti-father nature of the court and having read the court orders of Justice Collier, I have no confidence in there.

(T/s 1.11.05 p 23)

4. Some reference to the proceedings in the Family Court and to the judgment of Collier J on 28 June 2005 is necessary to an understanding of Mr Milne’s claims and to the issue of abuse of process.

The Family Court Proceedings

5. The hearing in relation to the “division of the parties’ fairly modest property entitlement” took place over a number of days, namely 16 to 19 August, 12 October 2004 and 14 April 2005. According to Collier J, the plaintiff appeared in person at all times. The plaintiff’s wife (the third defendant in these proceedings) was represented by counsel and a solicitor, Ms Haynes (the first defendant in these proceedings) of Sayan & Associates, Solicitors (the second defendant in these proceedings). The plaintiff’s wife’s niece, Amanda Gale (the fourth defendant in these proceedings) swore an affidavit which was relied upon by the plaintiff’s wife in the Family Court. The HSBC Bank (the fifth defendant in these proceedings) held accounts in the name of the plaintiff which were the subject of asset preservation orders by the Family Court. The sixth and seventh defendants in these proceedings are the State of New South Wales and the Commonwealth. The basis of their involvement in these proceedings arises out of the transfer of a Supreme Court file from the Registry of this Court to the Family Court registry during the Family Court proceedings, and the alleged failure of the Commonwealth to provide adequate resources for the administration of the Family Court.

6. The plaintiff’s claims in this Court concerning alleged bias against him in the Family Court and the conduct of the matter by his wife’s solicitor, Ms Haynes, were the subject of findings made by Collier. J. The most relevant of these findings include the following:

4. The conduct of this matter and the hearing itself were both coloured and affected by the husband’s intense dislike of the wife’s solicitor. The husband indeed alleges that the wife’s solicitor has done everything in her power to make his conduct of this case, and particularly his preparation of it, as difficult as she possibly can. I am satisfied that the husband has become particularly antagonistic towards Ms Haynes and I am satisfied that as a result of this he has from time to time been concentrating more on his ongoing battle with her than in dealing with the application for property settlement before the court.
36. At this stage I should indicate that on everything, I have seen the wife’s solicitor has done no more than endeavour to obtain information by whatever means possible to place the true financial situation of the parties before the court. I am absolutely satisfied that she has not acted in any improper, malicious or personally vindictive way towards the husband.
28. The husband’s presentation in the witness box caused me concern. He was garrulous, insisting that he give long and often unresponsive answers to questions. He was dismissive of the wife’s action and indeed of the court process. He made it clear that he did not really care what happened in the proceedings. His evidence left me confused and bewildered. He is clearly a most intelligent man. However there are a number of matters that in my view have caused him to be a less than accurate historian and a person determined not to reveal his present situation, or indeed any information to the court.
58 The husband’s evidence however, as I say, was unreliable. He was at times determined not to answer questions. He was at times determined to give long and un-responsive answers. Additionally he made it clear that he did not wish to participate in the proceedings and that information and material in his control was his concern and nothing to do with the court.
75 This is a case where to my mind the husband has deliberately been dismissive of the court’s endeavours to ascertain the true financial situation of the parties. He has chosen for himself to not make what would normally be described as a full and frank disclosure of his financial position. I am satisfied that the husband has done this deliberately and in an endeavour to minimise his exposure to orders of this court.
Judgment of Collier J 28 June 2005, Family Court of
Australia, Parramatta Registry

7. Interim orders pronounced by Collier J on 19 August 2004 included an order that the plaintiff not withdraw any further monies from the amount then held in his account with the Hong Kong and Shanghai Bank in Australia (HSBC Bank). By the judgement on 28 June 2005, all previous orders were discharged. Nothing in the final orders restrained the plaintiff from operating upon his account at the HSBC Bank. The effect of the final orders was to confer on the plaintiff’s wife title in a property in New Zealand, property in Helensburgh New South Wales, and entitlement to a judgment debt arising out of proceedings in New Zealand against the tenant of the plaintiff’s and his wife’s joint property. In addition, the plaintiff’s wife was to receive a share of the plaintiff’s superannuation entitlements and a cash payment of approximately $87,800.00. I was informed during the proceedings that these orders had not been complied with and that enforcement proceedings were underway. The relevance of this information lies in the plaintiff’s complaint that he is still experiencing difficulty accessing his bank account, although as at the hearing of this matter, there were no orders in existence which prevented him access.

8. Three aspects of the Family court proceedings bear more detailed consideration. The first concerns the interpretation by the HSBC Bank of the interim asset preservation order to include the plaintiff’s safety deposit box. The second concerns the transfer of a Supreme Court file relating to the plaintiff’s claim under an insurance policy from the Supreme Court Registry to the Family Court Registry, where it was inspected by the wife’s solicitor. The third concerns the proposed provision of an indemnity by the plaintiff’s wife against any loss of income by the plaintiff arising from an application to restrain the plaintiff from leaving the country.

9. The interim orders of 19 August 2004 relating to the plaintiff’s account with the HSBC was notified to the bank by way of letter dated 6 September 2004 from the wife’s solicitor, annexing a copy of the complete orders and drawing the Bank’s attention to order 13. The Bank relied upon the definition of “account” in the Financial Transaction Reports Act 1988 (Clth) s 3(1)(c) to construe the relevant order as one encompassing the plaintiff’s safety deposit box. Accordingly, the plaintiff was denied access to his safety deposit box when he sought access on 24 November 2004. On 24 May 2005, the plaintiff again sought access to his safety deposit box. Access was granted on written acknowledgement that he would not remove any money from it.

10. In 2001 the plaintiff commenced proceedings in the Common Law Division of this Court, which resulted in a settlement, in April 2003, of the plaintiff’s claim under an insurance policy. As is usual in such cases, the terms of settlement included a stipulation that the terms not be disclosed. The wife’s solicitor consulted the court list (published generally) to ascertain the file number. In due course, the file was transferred to the Family Court registry where the wife’s solicitors were able to inspect the file. At pars. 70-72 of Collier J’s judgement, the following appears:

70 Exhibits ‘PP’ and ‘QQ’ particularly deal with the resolution of the husband’s claim for indemnity under a policy of insurance. It is clear from those documents that the husband received $300,000 inclusive of his costs. An amount of $100,000 was applied towards his costs and therefore it is clear that the husband received $200,000. This amount is in no way properly accounted for by the husband. He tells me in a most offhanded manner, indeed indicating quite clearly that it was none of the court’s business, that the money had been spent on living expenses, payment of medical fees, travel expenses and so forth. His evidence given on a number of occasions was that there was approximately $15,000 left.
71 However there is the fundamental question of how I deal with the damages received by the husband. The wife asserts that I should treat it as any other asset and that the wife has made contribution to it by virtue of premiums paid from joint funds when the parties lived together.
72. The question of personal injuries verdicts or settlements is one of some difficulty. However I am satisfied that by virtue of the decision of the High court in Williams v Williams (1958) FLC 91 that an award of damages is property for the purposes of section 79 of the Family Law Act

11. The circumstances leading to the proposed provision of an indemnity by the plaintiff’s wife commenced with a visit to the plaintiff’s home by the wife’s niece on 1 September 2003. The plaintiff was absent, but a woman sharing the premises at that time volunteered to the wife’s niece that the plaintiff was shortly to travel overseas. The niece, Ms Gale, swore an affidavit on 4 September 2003 to this effect. That affidavit formed the basis of an application to the Family Court by the wife’s solicitors, seeking orders restraining the plaintiff from leaving the country, pending the hearing and resolution of the wife’s claim. That injunction was foreshadowed on 4 September 2004, on condition that the plaintiff’s wife indemnify the plaintiff against any loss. An indemnity was provided by the plaintiff’s wife on 4 September 2004, handwritten by the wife’s solicitor on a court form, which was adapted for that purpose. Collier J expressed some dissatisfaction with the wording of the indemnity and the matter was stood over to 5 September 2003 to allow the plaintiff to be served. (T/s of 4 September 2003; App O to S/C). No injunction was issued on 4 September 2003 and I saw no evidence of any injunction issued on any subsequent date restraining the plaintiff from leaving the country. That application would appear to have floundered, given the wife’s reluctance to indemnify the plaintiff against any losses, when the full implications of that undertaking were explained to her by Collier J on 4 September 2003. In any event, it does not appear to me that the proposed injunction or indemnity played any further part in the proceedings.

12. As I attempted to explain to the plaintiff, the jurisdiction of this Court cannot be invoked in order to address alleged errors of fact and/or law committed in the course of the Family Court proceedings. In recording the matters above, I express no view as to the legitimacy or otherwise of the plaintiff’s grievances, arising out of the conduct of the proceedings before Collier J. It is, however, necessary to explore that background in order to demonstrate the correspondence between the issues litigated in the Family Court and the pleadings in this Court.

The Statement of Claim

13. The Statement of Claim is 107 pages in length. There are 28 claims set out between p. 17 and 97 inclusive. What follows is an analysis of those claims according to their subject matter.

14. Claims 1 to 4 inclusive arise out of the plaintiff’s restricted access to his safety deposit box at HSBC Bank. Claims 1 and 2 allege contraventions of the Crimes Act, in that the first and/or second defendants knowingly made false and misleading statements to gain a pecuniary advantage, and contraventions of the Family Law Act by unlawfully distributing copies of the interim orders of 19 August 2004. Claim 3 alleges a conspiracy between the first, second and fifth defendants to deny the plaintiff access to his safety deposit box. Claim 4 alleges unlawful disclosure by the fifth defendant to the first and/or second defendant of the plaintiff’s safety deposit box.

15. Leaving to one side whether any of the alleged “offences” were committed by the first, second and fifth defendants, these claims do not disclose any cause of action, nor is there any evidence of damages arising therefrom, apart from a number of generalised assertions made by the plaintiff regarding flights from Thailand to Sydney to access his safety deposit box and the absence of certain valuables, said to have been in the safety deposit box prior to 24 May 2005.

16. None of these claims disclose an action known to the law, with the possible exception of the alleged defamation. As to that, the first and second defendants are protected by the privilege attaching to the publication of statements by legal representatives in the course of judicial proceedings: see D’Orta-Ekenaike v Victoria Legal Aid and Anor [2005] HCA 12: Dragan Markisic & Anor v Middleton Lawyers & Ors [2005] NSWSC 258. The same may be said of Claims 9 and 10.

17. Claims 5 to 8 inclusive refer to the transfer of the Supreme Court file to the Family Court registry. Claim 5 alleges a breach of the Supreme Court Rules 1970 Part 65, Rule 7, PN 97 by the Supreme Court Registry staff, acting on the instructions of the first and/or second defendants. Claim 6 alleges a failure by the sixth defendant to implement adequate procedures to advise and train Supreme Court staff, to monitor procedures and to control facilities, such as photocopiers and facsimile machines. Claim 7 merely makes a statement as to the effect of the relevant Supreme Court rule, then goes on to allege a failure by the seventh defendant to provide the Family Court with sufficient resources. Claim 8 alleges defamation and violation of the plaintiff’s privacy by the first and/or second defendants “via the unlawful and malicious distribution of the terms of settlement”.

18. Claims 9 and 10 allege intimidation and threatening phone calls on the part of the first and/or second defendants towards the plaintiff. Curiously, the plaintiff pleads the actions of the first and second defendants caused him to accept a significantly reduced sum as settlement of his Supreme Court action (Claim 9). The plaintiff’s annexures to the Statement of Claim reveal that it was not until early April 2003 that the wife and the wife’s solicitor was made aware of the existence of the proceedings, the plaintiff having earlier informed his wife that the proceedings had failed (Appendices L and R to the Statement of Claim). The settlement was effected on 23 April 2003 (Appendix A1 to Statement of Claim). The plaintiff was legally represented by senior counsel on that day.

19. Claims 11 to 14, 19 to 24, 27 and 28 allege negligence, conflict of interest, duress, fraud, unlawful detention, invasion of privacy and unfair practices variously on the part of the first, second, third, fourth and seventh defendants arising out of the application for an injunction on 4 September 2003 and the proposed indemnity. Claims 11 and 12 allege unlawful detention by the seventh defendant on the assumption that the plaintiff was restrained from leaving the country. As I have already noted, there is no evidence before me of such an order having issued from the Family Court. Claims 13 and 14 allege invasion of privacy by the fourth defendant who, it is said, acted maliciously in assisting the third defendant. The well-settled law in relation to witness immunity provides an answer to these latter claims R v Beydoun (1990) 22 NSWLR 256; Mann v O’Neill (1997) 191 ALJR 204. There is, as yet, no recognition in the courts of this state of a tort of breach of privacy.

20. Claims 19, 20, 21, 22 and 23 relate to the indemnity sought from the wife on 4 September 2003. Claims 19 and 20 allege that the failure on the part of the wife’s solicitor to provide the court with an appropriate indemnity on 4 September 2003 constitutes negligence and/or contempt. Claim 22 then goes further and alleges that the indemnity signed by the wife was fraudulent. Claim 21 alleges a conflict of interest between the first and/or second defendant and the third defendant. Claim 23 alleges that the third defendant signed the indemnity of 4 September 2003 under duress and that the seventh defendant failed to provide the court with sufficient resources to allow for an impartial, unbiased hearing. Claim 24 does not identify a responsible defendant; it alleges invalid court procedures and unlawful detention. It would appear to be directed at the seventh defendant. All these claims, with the exception of Claims 23 and 24, assert potential causes of action (albeit of a dubious nature) between the plaintiff’s wife and her solicitors. They have no place in a Statement of Claim filed by the plaintiff.

21. In a similar vein, Claims 27 and 28 allege excessive legal fees were generated by the actions of the first and/or second defendants and that these defendants engaged in unfair practices. They disclose no cause of action in the plaintiff.

22. Claims 15 and 16 relate to the property in New Zealand, the subject of final orders by Collier J. These claims allege that the actions of the first, second, third and/or fourth defendants incurred losses to the plaintiff, in that the tenant of the property was instructed by the first and second defendants to withhold rent, and the application on 4 September 2003 prevented the plaintiff from attending the sale of the New Zealand house.

23. Claim 17 alleges that the plaintiff’s estate was diminished by the constraints placed upon the plaintiff by the first and second defendants which prevented the plaintiff from taking up employment in parts of South East Asia affected by the tsunami on Boxing Day 2004. The plaintiff pleads the loss of an opportunity to benefit from a life and income protection insurance policy, had he been injured or killed on 26 December 2004. This is not a cause of action known to the law.

24. Claim 18 alleges a failure by the seventh defendant to provide an unbiased forum and sufficient resources, in that the indemnity provisionally supplied to the Family Court on 4 September 2003 was insufficient. The plaintiff complains that the application of 4 September 2003 ought not have been made without a properly worded indemnity. This claim in effect duplicates Claims 23 and 24. Again these are not causes of action known to the law.

25. Claims 25 and 26 were also the subject of comments made by Collier J in the course of his judgment on 28 June 2005 (see par 6 above). Claim 25 alleges defamation of the plaintiff by the first and/or second defendants in the conduct of the proceedings. Claim 26 alleges deceptive conduct by the first and/or second defendants in order to delay the proceedings and enrich themselves at the expense of the third defendant. These pleadings are also defeated by the immunity attaching to advocates (see par 19) and by the absence of any cause of action in the plaintiff relating to the solicitor/client relationship between the first and second defendants and the plaintiff’s wife.

Principles Applicable to Summary Dismissal

26. It is appropriate that I briefly review the principles to be applied in any consideration of a summary dismissal application. The authorities were collected and examined by Wood CJ at CL in Preston v Star City Pty Ltd [1999] NSWSC 1273.

27. The Court’s power is reserved for plain and obvious cases, that is, where the plaintiff’s action is “so obviously untenable that it cannot possibly succeed”, where it is manifestly groundless and to allow it to stand would involve useless expense: General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125.

The issue is whether the material before me demonstrates that the action should not be permitted to go to trial because it is apparent that it must fail: Webster v Lampard (1993) 177 CLR 598. I bear in mind the need to exercise exceptional caution and the fact that the test is a demanding one. The onus is upon the defendants to demonstrate that the plaintiff’s action is untenable.

28. In my view the defendants have each discharged that onus. The plaintiff cannot possibly succeed against any of the defendants, either because the claims disclose no reasonable cause of action and/or because they are defeated by recognised immunities. The defendants are entitled to the orders they seek under r 13.4. There is another basis upon which the plaintiff’s Statement of Claim should be dismissed or permanently stayed, namely the inherent jurisdiction of this Court to stay proceedings where they:

Will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them (923) See, generally Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.). Yet again, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings ((24) See, e.g., Reichel v Magrath (1889) 14 App Cas 665, at p 668: Connelly v DPP (1964) AC 1254, at pp 1361-1362.). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police ((25) as ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.

Walton v Gardiner (1993) 177 CLR 378 at 393

29. It is unnecessary for present purposes to consider whether estoppel arises in relation to some or all of the plaintiff’s claims. The plaintiff’s remedy, if there be one, lies in an appeal to the Full Court of the Family Court. The plaintiff acknowledged that this was so, but preferred to collaterally attack Collier J’s decision by instituting proceedings in this Court. It is difficult to think of a more transparent example of abuse of the processes of this Court.

30. The plaintiff’s Notice of Motion must fail, given the absence of any evidentiary basis for the asserted denial of access to the plaintiff’s account with HSBC Bank; even if there was such a basis, it would not be within my power to override orders validly made by a court of federal jurisdiction.

31. Accordingly, I make the following orders:-

1) The proceedings are dismissed.

2) The plaintiff’s Notice of Motion is dismissed.

3) The plaintiff is to pay the costs on the Notices of Motion filed by each of the defendants.

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