National Australia Bank Ltd v McFarlane

[2003] VSC 19

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8713 of 2002

NATIONAL AUSTRALIA BANK LTD & ORS	Plaintiffs
v
MALCOLM JAMES MCFARLANE & ANOR	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2003
DATE OF JUDGMENT:	29 January 2003
CASE MAY BE CITED AS:	NAB v McFarlane
MEDIUM NEUTRAL CITATION:	[2003] VSC 19

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PRACTICE and PROCEDURE - Interlocutory injunction - discontinuance of criminal charges laid

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. H. Garde QC and Mr A. T. Schlicht	Russell Kennedy
For the Defendant	In person

HIS HONOUR:

1. This is an application brought by the National Australia Bank Limited, Francis John Cicutto and Michael Douglas Main as plaintiffs against Malcolm James McFarlane and Jill Elizabeth McFarlane for interlocutory relief arising out of an action brought by them in this Court alleging abuse of process and malicious prosecution.

1. It is sufficient if I refer to the fact that in December of last year and January of this year, the defendants or as in the cases I am dealing with the second defendant purported to bring charges in the Magistrates' Court of Victoria alleging criminal offences against the second and third plaintiffs, Mr  Cicutto and Mr Main.  The defendant had earlier brought proceedings alleging criminal offences against them and the Director of Public Prosecutions for this State, Mr  Paul Coghlan of Queen's Counsel.

1. The purported charges appear to arise out of matters in this Court and in the Court of Appeal which commenced with a hearing before Byrne, J. in which His Honour gave judgment on 11 April 2002 for the first plaintiff, the bank, against Mr  and Mrs  McFarlane in respect of mortgages which it held over three parcels of land in northern Victoria of which the defendants or one of them was the registered proprietor.

1. The case took some four days before Byrne, J.  Various matters were raised by the now defendants including bizarre assertions relating to the nature of credit and the way in which banks lend money.  His Honour found that those contentions had no basis in common sense or, indeed, in reality.

1. The defendants, undaunted by His Honour's judgment, went to the Court of Appeal on an application for leave to appeal against it out of time.  On 20 September last year the Court of Appeal, (consisting of Ormiston and Vincent, JJA.) dismissed that application, again finding that there was no substance in it.  It appears that an application for special leave to appeal to the High Court has been lodged, but has not yet been heard.

1. Some of the argument before me this morning revolved around the issue as to whether judgments of this Court were in some sense only temporary or pending judgments until they were confirmed by the High Court.  Any such proposition is, of course, incorrect as a matter of law.  Judgments of this Court are final unless and until they are set aside on appeal.  The distinction, obvious to a lawyer, appears to be lost on Mr and Mrs McFarlane.

1. On 13 December 2002, Mrs  McFarlane brought a purported criminal prosecution in the Magistrates' Court against the third plaintiff, Mr Main, in the following terms: 

"On 11 April 2002 in a judgment of Byrne, J. in the Supreme Court of Victoria and by your part as solicitor for the bank and Francis John Cicutto's refusal to give evidence on the fraudulent practice of unlawful credit creation on promissory notes, without the knowledge of the registered proprietors, you aided and abetted the obtaining of property by deception".

1. On the same day, a similar charge was laid against the second plaintiff,

   
   

   Mr  Francis John Cicutto.  In that case the charge was in these terms: 

"On 11 April 2002 in a judgment of Byrne, J. in the Supreme Court of Victoria and by your refusal to give evidence on the fraudulent practice of unlawful credit creation on promissory notes without the knowledge of the registered proprietors you obtained property by deception". 

1. It is those charges which were the subject of an interim ex parte application to Beach, J. in this Court on 20 December when His Honour ordered that there be a stay on the prosecution of those charges pending the hearing of this interlocutory application.

1. The tragedy of persons engaged in the legal process who become so entrenched in what are often misconceived, erroneous views about the law or the facts of their case which can neither be substantiated in law or in common sense is well known.  It is an unfortunate syndrome which affects some litigants.  It seems particularly to affect those who decide or are compelled by circumstances to act for themselves.  The defendants in this case are clearly afflicted by this condition.  Nonsensical argument is piled on nonsensical argument.  It is the recitation of a series of unconnected phrases which the litigant believes are of some legal origin and can , by some alchemy, be converted into an exposition of sensible principle.

1. In this instance, having read all of the material filed in support of the plaintiff's applications and having heard everything that Mr  McFarlane wished to say, it is impossible not to come to a very firm conclusion that there is no basis whatsoever for the contentions which the defendants advance. 

1. Their refusal to accept the finality of the orders of this Court is but the commencement point of their delusion.  They then construct, by a series of ill-conceived and in many instances self-contradictory propositions, a purported case of criminality against the plaintiffs and, indeed, anyone else who in any way denies the justice of their original case; which case has, of course, been conclusively ruled upon by this Court as having no merit whatsoever.

1. The laying of criminal charges is itself a serious matter.  Mr Main, in his affidavit, refers to the fact that persons who seek insurance or who seek visas to enter foreign countries sometimes have to disclose criminal charges that have been laid against them.  Of course, it might be a doubtful question as to whether charges framed in the nonsensical way that these charges are framed actually constitute criminal charges but that is not a matter that I need go into now.  Whatever the defendants (or the second defendant particularly) have filed must be withdrawn.  One would have thought that there would be a good chance of establishing that the mere filing of a piece of paper in a Magistrates' Court containing, as these do, a series of words which make no sense either as a matter of English or as a matter of law would not constitute a charge but that is, as I say, not a matter I have to determine now. 

1. There is no doubt that the plaintiffs have been subjected to vexation and unjustified oppression by the actions of the defendants with the consequence that the grant of interlocutory relief in relation to the action which they have brought is entirely justified not only in relation to the purported criminal charges but also in relation to their activities in interfering with the first plaintiff's exercise of its rights under a judgment of this Court.

1. Mr  Garde, in his submissions, referred to the fact that as in this instance mandatory injunctions are being sought, the Court must be satisfied to a high degree of satisfaction that ultimately the relief sought in the principal proceeding will be granted.  One could not imagine that the actions of the defendants, insofar as they constitute the invoking of the jurisdiction of the Magistrates' Court in its criminal jurisdiction, did not constitute an abuse of the process of that Court but, again, I don't have to decide that question finally now, that is a matter ultimately for the trial.  Certainly on the face of everything I have so far seen there would appear to be no justification whatsoever for the actions of the second defendant in issuing these proceedings.  The high degree of satisfaction required for a mandatory injunction is clearly satisfied.

1. The first plaintiff, whilst not the subject of any criminal allegations at this stage, also seeks injunctions in the same terms and it would appear that as it is the principal target of the defendants’ discontent, it ought also to have the benefit of  those injunctions, particularly the injunction which prohibits the defendants from seeking to disrupt the first plaintiff's exercise of it rights in respect of the properties the subject of the original proceedings heard by Byrne, J.

1. I raised with Mr Garde the question of the position of the Director of Public Prosecutions and indicated in the course of argument with him that I would not make any order which affected the defendant's rights in respect of charges against Mr Coghlan. Mr Coghlan has ample power under the Public Prosecutions Act to deal with matters in the event that anything untoward was further alleged against him.

1. I should also point out that having regard to the orders of this Court and the judgment of Byrne, J., what appears on the material before me to be attempts to subvert the authority of this court and the rights of the first plaintiff in enforcing that judgment could, themselves, constitute serious contempts of court, punishable in the extreme case, by imprisonment.  However, again, that question is not before me today so that I need say nothing further in respect of it.

1. I am satisfied that there is a serious issue to be tried raised by the plaintiffs in their statement of claim.  Indeed, as I have already said, it would be difficult to see how they could not succeed ultimately in the causes of action which they allege.  Further, the balance of convenience favours relieving the second and third plaintiffs from any further vexation pending the determination of the proceeding, and favours also the granting of relief to the first plaintiff lest the defendants take any further step in the direction of seeking to charge it with any criminal offence.  As the evidence before me discloses, they have asserted that they "still have plenty of blank forms left".

1. Accordingly, there will be interlocutory orders largely in terms of the summons issued 20 December 2002, in these terms: 

1.That on or before 5 February 2003 the second defendant perform all actions necessary to effect the discontinuance of the charges brought by her against Michael Douglas Main and Francis John Cicutto on 13 December 2002 in the Magistrates' Court of Victoria. 

2.That the said charges be stayed until they are discontinued in accordance with paragraph 1 of this order. 

3.That the defendants, whether by their servants or agents or howsoever otherwise be restrained, until the trial of this action or further order, from laying or preferring any charges for summary or indictable offences in the Magistrates' Court of Victoria or in any other court against the first plaintiff, its solicitors or estate agents or any employee, servant or agent of the first plaintiff, its solicitors and estate agents or against the second plaintiff or the third plaintiff. 

4.That the defendants, whether by their servants and agents or howsoever otherwise be restrained, until a trial of this action or further order, from taking any steps whatsoever to hinder or prevent the advertising or sale or the taking of possession by the first plaintiff of the property known as Angle Road, Kunat being the lands more particularly described in Certificate of Title by volume 7504 folio 4119 or the property known as Mystic Park, Kunat and being the lands more particularly described in the Crown grant by volume 6632 folio 238 and Crown grant volume 7750 folio 008 and from publishing or distributing any notice or article or document to members of the public or erecting any sign concerning or affecting the advertising, sale or taking of possession by the first plaintiff of any of the properties. 

5.        That there be liberty to the parties to apply generally. 

6.That this order be drawn up by the solicitors for the plaintiff and signed by a Judge pursuant to O.60.04 of the Rules of Civil Procedure.

I will hear the parties on the question of costs.

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