Napier S.M. v National Australia Bank Ltd

[1992] FCA 756

7s-6 9 2

JUDGMENT No. ........ ........ J .......,.,,

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) No. QG 8 of 1992
GENERAL DIVISION	1

BETWEEN: SHARON MARY NAPIER

Applicant

AND:  NATIONAL AUSTRALIA BANK LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	9 SEPTEMBER 1992
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    Paragraphs 4(a) (b) (c) and (d) and 21 through to 39 (inclusive) of the applicant's statement of claim, together with the documents marked 'alpha' to 'foxtrot' (inclusive) annexed to the statement of claim, be struck out.

2.    The applicant in the principal proceedings pay the respondent's costs of the motion, the costs of the motion to include the costs of the mention on 29 July

1992, to be taxed if not agreed.

THE COURT DIRECTS THAT:

3.    The matter be listed for directions at 9.30 a.m. on Thursday 8 October 1992.

REGISTRV

NOTE:	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

- 7 OCT 1992

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) No. QG 8 of 1992
GENERAL DIVISION	1

BETWEEN: SKARON MARY NAPIER

Applicant

AND :  NATIONAL AUSTRALIA BANK LIMITED

Respondent

CORAM :	SPENDER J.
PLACE :	BRISBANE
W:	9 SEPTEMBER 1992

EX TEMPORE REASONS FOR JUDGMENT

I have before me a notice of motion filed 30 July 1992 which seeks various orders. The orders sought in paragraphs 1, 2 and 3 of that motion are not pressed today, but the relief claimed in paragraph 4 is the basis of today's proceedings. By that paragraph, the National Australia Bank Limited seeks that

paragraphs 4(a), (b), (c) and (d), 21, 22, 23, 24, 25, 26, 27,

28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 of the applicant's statement of claim, together with the documents marked 'alpha' to 'foxtrot' annexed to the statement of claim, be struck out.

There was an earlier application by the National Australia Bank Limited to strike out a statement of claim filed on 16 January 1992. I struck out that statement of claim on 16 April 1992 and gave reasons ex tempore for that decision. In

those reasons, I referred to the observations of Dixon J., as he

then was, in v. Victorian Railways Commissioners (1949) 78

C.L.R. 62, particularly at 91 and 92.

It is clear from authority which includes General Steel Industries Inc. v. Commissioner for Railways ( N . S . W . 1 (1964) 112 C.L.R. 125, that the power to strike out is to be exercised sparingly and only where the claim is so obviously untenable that it cannot possibly succeed. Where the statement of claim includes objectionable matter whlch is so closely intertwined with other matters that the pleading as a whole may tend to embarrass the fair trial of the action, the striking out of the whole of the statement of claim is permitted. In this particular case, only the nominated paragraphs are sought to be struck out.

In respect of the material which is pleaded In those paragraphs, for present purposes it is sufficient to say that it is almost identical to the material that was the object of a strikeout application before French J., in Fisher v. Westpac

Paragraphs in the Fisher statement of claim bear a striking	Bankina Cor~oration, (unreported judgment of 18 August 1992).
similarity to the impugned paragraphs in the present statement of claim and the attachments in the Fisher statement of claim, also numbered 'alpha' through to 'foxtrot', are the same as the present attachments.
As a matter of principle, it seems to me that a single judge of this Court ought follow a decision of another judge who has dealt with the same matter. This case involves precisely the
question dealt with by French J. and for the reasons given in his judgment on 18 August 1992, I will make orders in terms of paragraph 4 of the notice of motion.
It is not simply a matter of comlty or principle that compels me to that course. Were the matter tabula rasa, it seems to me that, pursuant to the provisions of 0 11, r. 16 of the Federal Court Rules, those paragraphs ought be struck out. All
I can say, in that regard, is to adopt what was said by
French J., at page 15 of his reasons for judgment of 18 August 1992. I have no doubt of the bona fides of Mrs Napier in this regard, but French J.'s observations at that page seem to me to be apposite.
The orders that I make are that paragraphs 4(a), (b), (c) and (d), 21 through to 39 of the applicant's statement of claim, together with the documents marked 'alpha' to 'foxtrot' annexed to the statement of claim, be struck out. I order that the applicant in the principal proceedings pay the respondent's
costs of the motion, to be taxed if not agreed.
The order for costs of the motion is to include the costs which I reserved on 29 July 1992.
The matter will be listed for mention at 9.30 a.m. on Thursday 8 October 1992. If there is to be a further amended statement of claim, that ought to be the subject of a motion with supporting material filed and served in sufficient time for the
Nat ional A u s t r a l i a Bank L imi ted t o meet t h a t m a t e r i a l b e f o r e 8
October 1 9 9 2 .

I cer t i fy t h a t t h i s and the

preced ing t h r e e (3) pages a r e a

t r u e c o p y o f t h e reasons f o r

judgment herein o f t h e Honourable

M r J u s t i c e Spender.

Date: 9 September 1992 4 ""vte

i.

Mrs S . M . Napier appeared i n person.

Counsel f o r the responden t	Mr G.	H .	Brandis
i n s t r u c t e d by	Flower	&	Hart

Date o f Hearing 9 September 1992