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:

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.

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 19
Decision Date: 29 January 2003

CaseChat Overview and Summary

The matter before the court involved National Australia Bank Ltd as the plaintiff, and McFarlane as the defendant. The dispute centred around the bank's application for an interlocutory injunction to prevent the publication of information concerning a series of criminal charges that had been laid against McFarlane. The case was heard in the Federal Court of Australia. The bank sought to restrain McFarlane from publishing details of the criminal proceedings until the charges were resolved, arguing that the publication could prejudice the fair trial of the criminal proceedings and harm the bank's reputation.

The court was required to determine whether the bank had a sufficient case to warrant the grant of an interlocutory injunction. Specifically, the court needed to assess whether the publication of the information would cause irreparable harm to the bank's reputation, whether the balance of convenience favoured the grant of the injunction, and whether the bank had a serious question to be tried on the merits. The court also needed to consider the public interest in the free flow of information and the right to a fair trial.

The court found that the bank had established a prima facie case for an interlocutory injunction. The publication of the information could indeed cause irreparable harm to the bank's reputation, and the balance of convenience favoured the grant of the injunction. The court also found that there was a serious question to be tried on the merits, given the potential impact of the publication on the fair trial of the criminal proceedings. However, the court ultimately declined to grant the injunction, taking into account the public interest in the free flow of information and the right to a fair trial. The court found that the discontinuance of the criminal charges against McFarlane meant that the need for the injunction was no longer pressing, and that the public interest in the free flow of information outweighed the potential harm to the bank's reputation.

Orders