Otta v Australia and New Zealand Banking Group Ltd - [2022] SASC 153

Supreme Court of South Australia
(Appeal to a Single Judge)
OTTA & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
[2022] SASC 153
Judgment of the Honourable Justice McDonald
16 December 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS
The appellants and the respondent entered into two loan agreements in 2014. Each loan was secured by a registered mortgage. The loans were for a property in South Australia which is the appellants’ principal place of residence and also an investment property in Queensland. The loan repayments fell into arrears and the respondent issued proceedings in 2019. The matter came on for hearing on 13 November 2019. The appellants did not appear at that hearing. An order for possession was made in relation to each of the properties in their absence. Since making the order for possession the appellants have made a number of interlocutory applications. On 16 March 2022, Judge Dart delivered his decision in relation to the fourth interlocutory application and his reasons for arriving at that decision. His Honour declined to set aside the order for possession. On 18 May 2022, the appellants filed a notice of appeal relating to the decision of Judge Dart on 16 March 2022 and purports to be brought under s 18 of the Competition and Consumer Act 2010 (Cth). Section 18 of that Act relates to the timing and location of meetings of the Commission under that Act. It has no relevance to the proceedings before this Court or the applications made before Judge Dart.
The respondent filed an interlocutory application to strike out the notice of appeal filed by the appellants on 27 June 2022. The application was made pursuant to r 12 and r 34.1(1) of the Uniform Civil Rules 2020 (SA) (“the Rules”). Counsel for the respondent submitted that given this was an appeal from an interlocutory order of a Master of the Supreme Court, leave to appeal was required under r 213.1(1)(a) of the Rules. No application for leave had been made. The appellants also required an extension of time as the appeal was clearly brought out of time. In addition, it was submitted that not only was the notice of appeal non-compliant, but also that it failed to identify the specific paragraphs of the reasons of Judge Dart that were said to be erroneous, nor did it set out a basis for which the appellants contend that his Honour erred.
Held, striking out the notice of appeal:
1.    In circumstances in which no arguable error has been identified, let alone established, the notice of appeal should be struck out as an abuse of the Court’s process.
2.    The appellants’ notice of appeal filed on 27 June 2022 (FDN4) be struck out.
3.    The appellants pay the respondent’s costs of and incidental to this interlocutory application to be taxed failing agreement.
Competition and Consumer Act 2010 (Cth) s 18; Uniform Civil Rules 2020 (SA) rr 12, 34.1(1), 213.1(1)(a), 213.2, 213.3, referred to.

OTTA & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
[2022] SASC 153
Civil: Appeal to a Single Judge
McDONALD J.

The respondent in this matter, (Australia and New Zealand Banking Group Ltd (“ANZ”)), has filed an interlocutory application to strike out the notice of appeal filed by the appellants, Mr and Mrs Otta, on 18 May 2022. The application is made pursuant to r 12 and r 34.1(1) of the Uniform Civil Rules 2020 (SA) (“the Rules”).
There is a lengthy history to these proceedings. The appellants and the respondent entered into two loan agreements in 2014. Each loan was secured by a registered mortgage. The loans were for a property in South Australia which is the appellants’ principal place of residence and also an investment property in Queensland. The loan repayments fell into arrears and the respondent issued proceedings in 2019. The matter came on for hearing on 13 November 2019. The appellants did not appear at that hearing. An order for possession was made in relation to each of the properties in their absence.
Interlocutory history
Since making the order for possession the appellants have made a number of interlocutory applications. I have conveniently adopted a summary of those proceedings from the reasons of Judge Dart:[1]
[1]     Australia and New Zealand Banking Group Ltd v Otta & Anor (Supreme Court of South Australia, Judge Dart, 16 March 2022) at [3]-[12].
[3]Since the making of the order for possession, the [appellants] have pursued a number of interlocutory applications. The first application, filed 21 November 2019, sought to set aside the order for possession.[2] It was listed for hearing on 11 December 2019. The [appellants] did not appear and the application was dismissed.
[4]A second interlocutory application was filed on 13 February 2020.[3] The parties filed affidavits in respect to that application, which also sought the setting aside of the order for possession.
[5]It appears there was an attempt to file a third interlocutory application on 12 March 2020. It is not clear whether that was actually accepted for service.
[6]The hearing of the second interlocutory application was voluntarily delayed because of a COVID-19 moratorium put in place by the [respondent]. It was listed for argument on 23 June 2021. The [appellants] did not appear at the argument. The application was dismissed and I published brief reasons for doing so.[4] I noted in those reasons that the [appellants] had purported to provide to the [respondent] what appeared to be a home-drawn money order payable to the [respondent] in the amount of $240,000. Whatever that document was, it was of no legal effect.
[7]On 1 July 2021 the [appellants] filed a further interlocutory application.[5] The application sought to set aside the possession order. The supporting affidavit[6] was largely incomprehensible. A further affidavit[7] was clearer in explanation of the [appellants’] position.
…
[10]The [appellants] complained about the [respondent] to the Financial Ombudsman Service (“FOS”). FOS suggested a resolution which was to the effect that the investment property be sold and that the [respondent] retain the proceeds of sale in full satisfaction of any obligations owed by the [appellants] in respect of that loan. It was necessary for the [appellants] to accept that proposed resolution for it to be operative. They did not do so and the resolution lapsed.
[11]The fourth application was argued on 11 August 2021. During the hearing it became apparent that the [appellants] were agreeable to the Queensland property being sold. The matter was adjourned off to allow the parties to have discussions as to the terms on which that would occur. The Court was told on 27 January 2022 that the parties had not been able to reach any resolution. It is necessary, therefore, to decide the fate of the fourth application.
[12]The most recent information before the Court as to the position with the accounts is contained in an affidavit filed on 22 June 2021.[8] As at that date, the arrears over the two loans were approximately $100,000. The total amount owing was about $650,000.
[2]     FDN10.
[3]     FDN13.
[4]     Extempore reasons of 23 June 2021, FDN27.
[5]     FDN28.
[6]     Affidavit of Paul William Otta, filed 1 July 2021, FDN29.
[7]     Affidavit of Paul William Otta, filed 15 July 2021, FDN30.
[8]     Affidavit of Julian Alexander Byers, FDN25.
On 16 March 2022 Judge Dart delivered his decision in relation to the fourth interlocutory application and his reasons for arriving at that decision. His Honour declined to set aside the order for possession. He did so on the basis that he was not satisfied that there was a good defence in law to the respondent’s entitlement to a possession order. Judge Dart made the observation that whilst the appellants had made wide-ranging allegations against the respondent, these were difficult to follow to the point of being incomprehensible.
Judge Dart did however make an order that the order for possession of the South Australian property be stayed pending the sale of the property in Queensland. Upon that occurring the position could then be reviewed by the parties and the Court. It appears that Judge Dart reached this compromise position on the basis that the parties were in negotiations and had determined that the Queensland property be sold first. The sale of that property was likely to discharge a good proportion of the remaining debt. That would then give the appellants the opportunity to negotiate with the respondent about restoring the loan on the South Australian property or attempt to refinance it.
During the course of his reasons Judge Dart made the following observation:
[14]I note that the present application is the fourth interlocutory application seeking to set aside the possession order made in 2019. The order has not been the subject of an appeal. There must come a point at which persistent interlocutory applications for the same order, which have previously been refused, becomes an abuse of process. The [respondent] does not seek to have the application dealt with on that basis.
I understand Judge Dart to there be referring to an appeal of the initial 2019 decision to make the order for possession.
The notice of appeal
On 18 May 2022, the appellants filed a notice of appeal in this Court.[9] That Notice relates to the decision of Judge Dart on 16 March 2022 and purports to be brought under s 18 of the Competition and Consumer Act 2010 (Cth). Section 18 of that Act relates to the timing and location of meetings of the Commission under that Act. It has no relevance to the proceedings before this Court or the applications made before Judge Dart. It is also not clear as to precisely what aspect of Judge Dart’s ruling is being challenged, as whilst the appellants refer to the ruling generally, they set out in full detail paragraphs [14], [17], [18] and [19] of his Honour’s reasons.
[9] FDN1.
The grounds of appeal are:
1.Grounds and reasons under the Australian Consumer Law, Section 18, under the Competition and Consumer Act 2010 (Cth).
18 Misleading and deceptive behaviour on the part of the applicant, ANZ Bank representatives, Thomson Geer and solicitor, Lauren Rowen.
2.ANZ Bank has themselves acted contrary and illegally to the above ‘Reasons’ of Judge Dart, from 16^th March 2022 and the ‘Granted Order’ of Judge Dart, from 16^th April, both in the Supreme Court of South Australia.
On 27 June 2022, the appellant filed an amended notice of appeal.[10] The only variation appears to be that the original appeal was to the Court of Appeal which was varied to a single Judge in the amended version. That would appear to have come about because of communications from the Registry to the appellants, advising them that they were in error in initially appealing to the Court of Appeal.
[10] FDN4.
Attempts to have the appeal listed
On 29 June 2022, my Chambers advised the parties that I was to hear the appeal and that it was proposed that the matter be listed for submissions at 10.00 am on 28 July 2022. The parties were requested to confirm their availability.
On 11 July 2022, the respondent contacted the Registry and requested that the matter be listed for a directions hearing in relation to appeal preparation orders prior to the appeal date. The matter was consequently listed for a directions hearing on 15 July 2022. Both parties were advised of this hearing date. Counsel for the respondent advised that they were available at that time.
Numerous attempts were made to contact the appellants to ensure that they were aware of and available to attend at that hearing. Emails were sent to them by my Chambers on 29 June 2022, 13 July 2022 and 14 July 2022. Two voice messages were also left on Mr Otta’s telephone. The appellants did not respond to any of these messages. My Chambers confirmed with the parties that despite the appellants’ failure to respond, the directions hearing would still proceed at 9.00 am on 15 July 2022.
The appellants failed to appear at the directions hearing. On that occasion the respondent advised that they were going to seek instructions to make an application to have the notice of appeal struck out. The directions hearing was adjourned until 22 July 2022 in order for the respondent to seek those instructions and for the Court to send the appellants a letter by registered post advising them of the new date and indicating that if they failed to attend on the next occasion the matter would be dismissed.
On the morning of the directions hearing, at 9:38 am on 15 July 2022, an email from the appellants was received by the Registry. It said:
Dear Registry staff,
I have just now seen this hear [sic] and it’s scheduled time.
Obviously I could not attend.
I did not ask for this Directions meeting it was the other party.
As far as I know the Appeal is scheduled for the 28th of July 2022.
The other party cannot be allowed to gain an advantage through this very early notice.
Any decision that has been made in my absence must be disregarded in this case.
Yours sincerely
Paul William: Otta
As foreshadowed, a letter was sent to the appellants by registered post advising of the new directions hearing date, of the various attempts to contact them and the consequences of them failing to attend on that date.
On 20 July 2022, the appellants contacted the Registry and advised that they had recently experienced a family tragedy. As a consequence, they requested that the directions hearing scheduled for 22 July 2022 and the appeal hearing on 28 July 2022 be rescheduled to a date in the middle of August. The two July dates were vacated and a directions hearing was listed on 5 September 2022.
On 29 August 2022, the respondent filed an interlocutory application[11] along with a supporting affidavit[12] for the notice of appeal to be struck out.
[11] FDN8.
[12] FDN9.
On 3 September 2022, the first appellant contacted the Court and requested further time. On that basis, the hearing date of 5 September 2022 was vacated and the matter was relisted for 20 September 2022. The parties were advised that there was an expectation that they would attend in-person on that date and be in a position to make submissions on the interlocutory application filed by the respondent.
Hearing on 20 September 2022
On 20 September 2022, submissions were made on the interlocutory application. Ms Flaherty who appeared for the respondent submitted to the Court that the notice of appeal should be struck out. She put that there were two preliminary hurdles for the appellants. These were that given this was an appeal from an interlocutory order of a Master of the Supreme Court, leave to appeal was required under r 213.1(1)(a) of the Rules. No application for leave had been made. The appellants also required an extension of time as the appeal was clearly brought out of time.
In addition, it was put to the Court that not only was the Notice non‑compliant but also that it failed to identify the specific paragraphs of the reasons of Judge Dart that were said to be erroneous, nor did it set out a basis for which the appellants contend that his Honour erred.
It was submitted by the respondent that for this Court to set aside a previous order there must be a proper basis. No proper grounds could be discerned from the notice of appeal and as a consequence it should be struck out as it is “frivolous, vexatious or an abuse of the process of the Court”.[13]
[13] Uniform Civil Rules 2020 (SA) r 34.1.
The first appellant, Mr Otta, appeared representing both himself and the second appellant. I bear in mind the difficulties faced by an individual who attempts to navigate the complexity of the legal system without the assistance of a lawyer. It was however the case that the appellant’s submissions were very difficult to follow. This was not assisted by the first appellant’s obvious belief that he was entitled to have his appeal heard regardless of the shortcomings of the notice of appeal. He attempted to emphasise this point by becoming louder and more aggressive in his submissions.
It became readily apparent during the submissions that the appellants had a misunderstanding about what could be achieved by the appeal processes. The appellants appeared to have an expectation of the Court conducting some form of roving enquiry into all of the allegations that they have made about misconduct engaged in by the ANZ since as early as 2014. In particular, their concerns appeared to relate to conduct alleged to have occurred subsequent to the hearing before Judge Dart in March 2022 - conduct which clearly could not be the subject of an appeal of a decision that preceded it.
The following passages from Mr Otta’s submissions highlight the extent of his misunderstanding of the role of this Court:[14]
[14] T9-10.
MR OTTA: … So, Judge Dart had actually specified that they could only move on the Monto property but that was conditional upon four-months' time there would be a review or another directions hearing to see where both parties had come to. That was again, on the proviso that I would be the one to initiate the sale of that property.
So, what I understand as well, the ANZ, behind my back as under contract law, has gone to the Queensland property and told the tenants that they have to leave. They gave notice to the tenants without my knowledge, which they've done from the beginning. All of their misleading and deceptive behaviour has happened right from the beginning, it goes all the way back to 2014.
I've been dealing with this bank since 2014, I've been asking questions and I've been doing the right thing and there's been a lot of favour with this bank, but I haven't received anything from the bank regarding their inflating of the earnings that my wife and I earned when we applied for the loan. There was a $35,000 inflation on those earnings. Also the value of the land was overestimated, nearly 100%, the value of the land with 35,000, it was sold to us for 62,000. ANZ never said a word until four years later in 2018 we approached FOS and FOS was able to uncover those documents.
So, from my perspective, from a contract perspective the contract is null and void through misleading and deceptive behaviour from the ANZ bank. That's why I'm appealing, that's why –
And further:[15]
MR OTTA:The order for possession, the order for possession is I'm standing against the order for possession for the Monto property and for this property. Since I initiated this notice of appeal there should have been a stop put on any movement forward by ANZ bank. They just carte blanche gave us 14-days' notice to take possession of both properties. That's not right, that's not honourable, that's not ethical, that's immoral, that is underhand and misleading behaviour.
For the court to grant this interlocutory on my appeal, which is my way of bringing justice to bear upon this bank and their actions towards our family, right. This appeal needs to go through and I reject this interlocutory application totally on the grounds that Judge Dart, he made the decision, I don't disagree with his decision, but I disagree with the way that the ANZ has interpreted that decision and that's why those orders need to be - the order for possession needs to be stopped until an appeal can bring out what's been happening with ANZ in regard to our properties.
[15] T10-11.

In relation to the issue of the requirement of an extension of time, it appeared that Mr Otta accepted that he required an extension of time in which to file the notice of appeal. No proper basis for an extension of time was put forward. As best as I could understand it, Mr Otta appeared to be submitting that the reason that he had not filed the notice of appeal within time was because “[he] had spent time pursing another interlocutory which wasn’t successful”.[16] It was difficult to determine what Mr Otta meant by this, particularly in circumstances in which it was not apparent as to which order was the subject of the appeal.
[16] T8.
Not only was there no real explanation for the late filing of the Notice, but there has been an absence of any explanation for why it was that the appellants failed to respond at all to the Court’s initial attempts to contact them.
The history of this matter demonstrates that the first appellant is someone who holds the view that he can pick and choose when he comes to court and when he does or not does not respond. That has continued for some years now, with the current proceedings before this Court the most recent manifestation of that attitude.
Leave to appeal
It appeared that Mr Otta did not accept that he required leave to appeal. He put to the Court “just that I was able to put through the notice of appeal shows that that was [sic] the potential to be granted”.[17]
[17] T8.
Mr Otta relied upon r 213.2 and r 213.3 of the Rules in support of his argument that he did not require leave. It was clear that Mr Otta had a misunderstanding of the effect of these rules. Rule 213.2 sets out the requirements for a notice of appeal in circumstances in which leave is required. Rule 213.3(1) provides for an application for leave to appeal against an order or judgment of a Master or Judge of the Supreme Court to be made in the first instance to that Master or Judge by an oral application in certain prescribed circumstances. Rule 213.3(2) sets out the power to institute an appeal in circumstances in which the original Master or Judge has either refused or granted leave to appeal. The appellants made no application for leave to appeal before Judge Dart. This section therefore has no application.
Contrary to what was put by the appellants, leave to appeal is required pursuant to r 213.1 of the Rules. When considering whether to grant leave to appeal, this Court acts in the interests of justice and by reference to three inter‑related questions:
1.whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
2.whether the decision raises an issue of principle or general importance; and
3.whether allowing the decision to stand would work a substantial injustice to the appellant.
No proper basis was advanced as to why the appellants should be granted leave.
The merits of the appeal
In my view this appeal is unmeritorious. It became apparent in submissions that there was an absence of clarity in the first appellant’s own mind as to which decision he was appealing. Whilst the notice of appeal clearly relates to the decision of Judge Dart on 16 March 2022, during submissions it appeared that on occasions he was referring to an appeal against the initial 2019 decision.
As I mentioned previously, the first appellant confirmed during submissions that the basis of his grievance is conduct that he alleges that the respondent has engaged in before and subsequent to the ruling of Judge Dart, although he was not able to explain with any precision what that conduct was.
In circumstances in which no arguable error has been identified, let alone established, the notice of appeal should be struck out as an abuse of the Court’s process.
Orders
I make the following orders:
1.The appellants’ notice of appeal filed on 27 June 2022 (FDN4) be struck out.
2.The appellants pay the respondent’s costs of and incidental to this interlocutory application to be taxed failing agreement.