Owen v Australia and New Zealand Banking Group

[1996] QCA 25

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 99 of 1995.

Brisbane

BeforeDavies J.A.

Pincus J.A. Dowsett J.

[Owen v. ANZ]

BETWEEN:

RONALD OWEN

(Applicant) Appellant

AND:

AUSTRALIA & NEW ZEALAND

BANKING GROUP LIMITED

(Respondent) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 27/02/1996

I have read the reasons of Dowsett J and I agree with his reasons and the order

his Honour proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 99 of 1995

Brisbane

[Owen v. ANZ]

BETWEEN:

RONALD OWEN

(Applicant) Appellant

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

(Respondent)	Respondent
Davies JA Pincus JA Dowsett J

Judgment delivered 27/02/1996 concurring as to the order made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS: JUDICIAL REVIEW Sections 12, 13 and 48 Judicial Review Act 1991. Summary judgment for recovery of debt. Service - application dismissed in appellant's absence. No additional evidence. Trial Judge correct in striking out application upon the merits.

Counsel:	Appellant appeared on own behalf Mr G. O'Sullivan for the respondent
Solicitors:	James Watt & Co for the respondent
Date of Hearing:	6/11/1995
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 99 of 1995

Brisbane

Before Davies JA

Pincus JA

Dowsett J

[Owen v. ANZ]

BETWEEN:

RONALD OWEN

(Applicant) Appellant

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

(Respondent) Respondent

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 27/2/1996

This is an appeal from a judgment of Williams J given in the Trial Division on 3 May,

1995. His Honour was wrongly joined as a party to the appeal, but his name was deleted at the

commencement of the hearing at the request of the appellant. The appeal arises out of an

action in the Magistrates Court at Gympie in which the respondent sued the appellant for

$10,609.79 as moneys due and owing by him to it. Most, if not all of the indebtedness accrued

as a result of the appellant's use of a credit card. The respondent successfully applied for

summary judgment in the action. Although the appellant had a right of appeal to the District

Court against the Magistrate's decision pursuant to the Magistrates Courts Act 1921, he did not

exercise that right but rather applied for an order under the Judicial Review Act 1991. After some preliminary skirmishing, the respondent applied to strike out the application in reliance

upon ss.12, 13 and 48 of that Act, primarily upon the ground that the relevant appeal process to

which I have referred constituted adequate provision for review of the decision for the

purposes of s.12 or a basis for dismissal of the application pursuant to s.13 and/or s.48.

The respondent's application was filed on 3 April, 1995, returnable on 11 April. On that

day, the matter was adjourned to a date to be fixed. It was re-listed for hearing on 21 April. The

appellant did not attend on that day but filed an affidavit setting out his reasons for non-

attendance. The matter was adjourned to 3 May, 1995. The solicitor for the respondent wrote

to the appellant, advising that the matter had been adjourned to 10.00 a.m. on 3 May, 1995. An

affidavit deposing to the dispatch of that letter was before his Honour on 3 May when the

appellant, again, did not appear. In those circumstances, his Honour proceeded to determine

the matter upon the basis that the appellant had received proper notice of the adjourned date

of hearing.

The appellant says that on 11 May, he became aware that his application had been

dismissed in his absence. He enquired of persons at two addresses which were his addresses

for service and says that he was told that no papers had been received at, or delivered to either

address. This raises possible inferences that the letter was either not sent or was lost in the

mail. Obviously, there was room for dispute about the facts of the matter, but they have not

been investigated. The respondent submits that instead of appealing, the appellant should

have applied to set aside the order as contemplated in Taylor v. Taylor (1978-1979) 143 CLR 1 but

in any event, it also disputes the appellant's entitlement to have the order set aside, by

whichever method he may choose to proceed, because, the respondent says, the order was

regularly obtained.

The Court intimated to the parties at the hearing that rather than dispose of the matter
upon the point of service with the result that, if the appellant were successful, the matter

would have to be re-heard, we proposed to determine the respondent's application upon the

merits. Both parties agreed to that course. His Honour was clearly correct in striking out the

application. It is not necessary in this case that we examine the inter-relationship of ss.12, 13

and 48. It is sufficient to say that for the purposes of s.12, there was clearly adequate provision

made for review of the decision by the District Court, giving rise to a discretion to strike out the

application. Section 13 seems to compel that result.

At a more fundamental level, it is also clear that the appellant's attack upon the

decision of the Magistrate lacked substance. Williams J identified two possible grounds of

criticism of the Magistrate's decision, which grounds were concealed, rather than contained

in the appellant's material. The first was that the Magistrate should have disqualified himself

because in a previous case between the parties, he had made a decision favourable to the

respondent. Obviously, this was not a sufficient basis for insisting that the Magistrate

disqualify himself. Secondly, the appellant argued that the Magistrate wrongly refused to hear

oral evidence from him before giving summary judgment. The appellant's material suggests

that he wished to rely upon a mixture of anti-bank propaganda, misconceived references to

the Australian Constitution and other constitutional sources such as Magna Carta and theories

of credit-creation. It is impossible to discern any coherent basis for defending the action. The

Magistrate, apparently apprehending more of the same in oral evidence, said that he did not

want to hear any more of the appellant's credit-creation theories.

It is unfortunate that he so expressed himself. The proper course was to identify the

evidence which the appellant wished to lead and then rule on its admissibility. However, there

is nothing in the material put before us which can be described as additional evidence in

defence of the claim. The criticism was therefore only of the Magistrate's statement, and not
that the appellant was prevented from leading other relevant evidence.

It may be that a third possible ground of criticism can be detected in the appellant's

material, namely that he should have had an adjournment to allow him to further investigate

the respondent's claim. There was no suggestion that such a step would have assisted the

appellant in any way. It would merely have permitted a fishing expedition with no apparent

prospect of affecting the ultimate outcome of the proceedings.

The appeal is dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 99 of 1995

Brisbane

Before Davies J.A. Pincus J.A. Dowsett J.

[Owen v. ANZ]

BETWEEN:

RONALD OWEN

(Applicant) Appellant

AND:

AUSTRALIA & NEW ZEALAND BANKING GROUP LTD.

(Respondent) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 27th day of February 1996

I have read the reasons of Dowsett J. and I agree with them.