O'Donnell v National Australia Bank Ltd

[1994] FCA 1113

JUDGMENT No. ..~&A..J dk...

IN THE FEDERAL COURT OF AUSTRALIA )

WALES DISTRICT REGISTRY ) No. NG 324 of 1994

1

Between:  BARBARA ANNE 0 ' DONNELL

OF AUSTRALIA Applicant

A W 2003

And :  NATIONAL AUSTRALIA BANK LTD

LIBRARY Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 15 JUNE 1994

Leave for short notice having been given by Justice Beaumont last Friday, 10 June, an application and a motion for interlocutory relief have come before the Court today seeking various orders arising from the applicant's relationship with the respondent bank with whom she conducts two accounts. According to an affidavit in support filed by the applicant, the documentation in the case was served by her, at approximately 4.15 pm on the day on which short notice was granted, upon Stephanie Cave, branch administration officer of the Law Courts branch of the National Australia Bank at 169 Philip Street, Sydney. Mrs O'Donnell informed me today that the reason why she served the documents at that branch rather than at the Haymarket or Newtown branches at which the relevant bank accounts are operated is because she wanted to serve them as quickly as possible to give the maximum possible notice to the bank, and because her disability and lack of funds as described in the affidavit prevented her from serving it on the Haymarket and Newtown

branches that particular day.

The application contains a notification to the person upon whom it was served that the hearing would take place at 9.30 am today. The original of the motion leaves the time blank but fixes 10 June as the time at which the orders set out in the motion would be sought. However, the applicant has also handed me a stamped copy of the motion which fixes 9.30 am today as the hearing of the motion and she says that it was a copy of that document rather than the original that was served upon the bank. Hence, although a communication breakdown within the bank may have occurred, the bank was clearly on notice that a hearing was to take place today in relation to this matter. Yet when the matter came on for hearing today, there was no appearance by the National Australia Bank and no notice of appearance has been filed.

It is only fair that I note, however, that the application is addressed to the bank at Centennial Plaza, 300 Elizabeth Street, Sydney, although the documents were actually served, as I say, at 169 Phillip Street. The applicant points out in this regard that her disability and lack of electronic facilities should not

orders contained in the motion and the application because the	in the circumstances disqualify her from proceeding to seek the
bank does have access to sufficient facilities to transmit the material promptly to the proper place(s).
The motion for interlocutory relief seeks, in effect, three orders. One is that all the funds contained in the applicant's accounts with the bank at Haymarket and Newtown branches be immediately releasedto her; second, that the bank, its servants and agents be restrained from approaching her or trespassing on the property where she lives; and third, that the bank accept no further funds from the Department of Social Security for her disability pension and pharmaceutical benefits. The application seeks three other orders. One is to dispense with compliance with the rules and the other two relate to directions for the further conduct of the proceedings.
Rather than engage in an ex parte application for orders that the bank release what on the face of it would seem to be unquestionably the applicant's money, requiring some cost and delay in implementation and enforcement, I directed a registrar to inquire of the Haymarket and Newtown branches of the National Australia Bank as to whether there was any matter they wished to put to the Court today as to why these moneys could and should not immediately be released to the applicant. The inquiries reveal that at the Newtown branch, the applicant has a current balance of $66.24 and at the Haymarket branch $1,136.46. The information given to the registrar was that there was no bar to
accounts. In the case of the Haymarket branch she could do so her withdrawing all or any of the funds in either of the
by accessing an automatic telling machine up to the limit of the machine, and withdraw the rest over the counter at any branch upon production of sufficient identification. In relation to the Newtown branch, there was no access via an automatic teller machine, but she could withdraw the funds at any branch upon production of sufficient identification.
I therefore adjourned to permit the applicant to seek her funds from a branch of the National Australia Bank proximate to the Court. She reported back some time later that such moneys as she was seeking had been released to her.
The Haymarket account is significantly if not entirely funded by payments from the Department of Social Security. In October 1993, the affidavit reveals that it was a special benefit, in May 1994 it was a disability pension plus pharmaceutical and other associated benefits. In each case the payments were made by Reserve Bank cheques of the Department of Social Security.
The affidavit filed in support of the motion evidenced that on two occasions, the applicant has been denied access to the funds in these accounts. The applicant said in court in supplementation of her affidavit that when funds were denied to her in October 1993, she protested and they were released some eight days later. In May 1994, despite a protest to an officer at the Newtown branch which resulted in an undertaking that the money would be released from the Haymarket branch in particular,
made in the ensuing days. she was unable to obtain that access upon a number of attempts
The evidence provided to me in this regard was a little strange. There were no tickets from automatic telling machines rejecting a withdrawal but there were five receipts presented from a place called the St Peters Inn dated 28 May in the late hours of the evening when an attempt to withdraw $10 was refused. The applicant explained that this was not an automatic telling machine, which on my understanding normally refuses any withdrawal of less than $20, but some form of EFTPOS machine which normally has paid her in the past sums as little as the $10 rejected here. There may be an explanation as to why the $10 was refused and there is no evidence at all that on any subsequent occasion between 28 May and today, some 18 days later, any further efforts to withdraw moneys elsewhere have been made or that any telephone complaints have been made to ascertain why her funds were not available to her. The applicant says that she could not afford a telephone call but she has been to Court twice and it is difficult to imagine that a phone would not have been available to her without charge for one or two local calls.
Her pension being her sole form of income, the complaint is, and it is understandable, that being denied access to it has meant that she has been left entirely without funds for this very
lengthy period. Precisely why the funds were refused between 26
and 28 May but granted today upon a telephone call from a registrar of the Court is at the moment a complete mystery.
However, their release today means that there is no warrant for an interlocutory order that the bank pay the money out to the
applicant.
The second order that the bank be restrained from approaching the applicant or trespassing on her property turns on a paragraph in the affidavit, which says that on 25 May a male person not known to the applicant came to her residence at 10 pm stating that he was from the courthouse. She refused this man entry to her premises but says from the bar table in court today that she did in fact leave the premises by another exit and watched this man's activities from another vantage point. She saw that the man went to the electricity box in her premises and turned the electricity off, later leaving his card in the letter box. She says that the card, which she did not produce today because it was still at her home, discloses that the visitor was a representative of a collection agency of some kind. The applicant frankly says in her affidavit and again from the bar table more than once that there is no evidence that this person was an employee or agent of the bank although she believes that he was despite not knowing of any business of the bank which would have justified a visit to her home by a bank agent, let alone an unauthorised interference with her electricity supply. The affidavit says that the actions of this man, together with the refusal of access to her account on the days following, show a contempt and disregard for her rights so as to place her in reasonable fear of further intimidation. In my opinion there is insufficient evidence for an injunction of the kind sought at this stage but
stage some such order may be appropriate. I will, of course, leave an open mind as to whether at a later
The third order sought is a mandatory injunction that the bank accept no further funds from the Department of Social Security on the applicant's account. The situation here is that the applicant has instructed the department to pay her entitlements into the Haymarket branch of the National Bank. She accepts my advice in this regard that all she has to do to prevent further payments going into the bank is to instruct the Department of Social Security to pay them somewhere else. She says that is precisely what she will do. I do not think it is possible in the presence of the existing authority to the Department of Social Security to order the bank not to accept the funds. All that would do at best would be to make sure that the applicant's money became caught up in some bureaucratic no-man's land such as to deprive her of her funds altogether. In the circumstances, it is not appropriate to make the order sought but the same result can be achieved by the applicant merely advising the department of a fresh place or mechanism for transmitting her entitlements to her. If, for some reason or other, that becomes impossible to achieve, then I will consider an appropriate order at a later time .
Those, then, are the matters that have been brought forward for decision today. I am pleased that the applicant has been able to get access to her funds which was the immediate purpose of the proceedings, and I trust that there will be no further
Following upon the registrar's advising to the managers of the interference with her access to her pension entitlements.
two branches where the bank accounts are conducted, it would normally be expected that the bank would be present on the next occasion this matter ia listed and the future of this litigation will be determined at that time. The registrar will be drawing the attention of the managers of the two branches to the need for the bank to file a notice of appearance and thereafter I shall deal with the matter in the ordinary way.
The application and the motion are adjourned to 9.30 am on Tuesday June 28 1994. The registrar is to bring this judgment to the notice of the bank managers concerned and to invite them to cause the bank to file a notice of appearance. Costs are reserved.

I certify that this and the

Justice Einfeld