Pavlomanolakos, E.R. v National Australia Bank Ltd
[1993] FCA 332
•11 MAY 1993
EVANGELOS ROBERT PAVLOMANOLAKOS v. NATIONAL AUSTRALIA BANK LIMITED; MURRAY
LONGMUIR and BRENTON JOHN CLARK
No. SG2 of 1992
FED No. 332
Number of pages - 2
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Gummow(1), Hill(2) and Cooper(3) JJ
CATCHWORDS
Practice and Procedure - application for leave to appeal from orders striking certain paragraphs in amended statement of claim - no basis to certain claims to relief - leave to replead other claim - previous decision on issues of law followed by primary Judge.
Arnold v State Bank of South Australia (Full Court of the Federal Court, 18 November 1992, unreported).
Warner v Elders Rural Finance Limited (Full Court of the Federal Court, 26 March 1993, unreported).
HEARING
ADELAIDE, 11 May 1993
#DATE 11:5:1993
Applicant for leave appeared in person.
Counsel and solicitors for the respondents: Dr R.J. Baxter instructed
by Finlaysons.
ORDER
THE COURT ORDERS THAT:
(1) The application for leave to appeal be dismissed.
(2) The applicant pay the costs of the respondents.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
GUMMOW J This is an application for leave to appeal from orders made by a Judge of this Court (O'Loughlin J) on 12 February 1993. His Honour ordered that certain paragraphs be struck out of the applicant's amended statement of claim, which he had filed on 26 October 1992.
However, the primary Judge also ordered that the applicant be at liberty to file and serve a further amended statement of claim in terms not inconsistent with the reasons published by his Honour on that day.
The effect of the orders made by the primary Judge was to leave unchallenged paras 1, 2, 3, 4, 5 and 6. Paragraphs 7, 8, 9, 10, 11, 13, 14 and 15 dealt with what his Honour described as "the book entry credit argument". His Honour ordered that those paragraphs be struck out. He also ordered that para 12 be struck out. This was not because the paragraph was fatally bad in law as was the position with the book entry credit allegations. The point here was that para. 12 alleged to claim in negligence which, whilst defective as it stood, should not be struck out with no opportunity to replead it.
Paragraph 16 also was struck out. This raised a point as to the proper execution of the mortgage in question under the statute law of South Australia, in particular, the Real Property Act 1886 (S.A.), ss. 246, 247, 267, 268 and 269. The issue already had been dealt with by a Full Court of this Court in Arnold v State Bank of South Australia (18 November 1992, unreported). O'Loughlin J referred to this decision in his reasons for judgment as indicating why para. 16 raised a point which was bad in law and therefore should be struck out.
Paragraphs 17 and 18 remained. They plead a case of misrepresentation. Paragraphs 19-21 were struck out. They dealt with what was said to be the binding effect in the legal system of this country of Magna Carta and of certain passages in the Bible. Allegations to like effect had been dealt with in Arnold's Case supra. They have been dealt with further, since the delivery of O'Loughlin J's reasons for judgment, by the Full Court in Warner v Elders Rural Finance Limited (26 March 1993, unreported).
In addition to what is said in these authorities as to the complete lack of substance in what I might call the Magna Carta point, I would refer also to what was said by Wilson J in the High Court in Re Cusack (1985) 60 ALJR 302 at 303-4. Wilson J there refers to what was said by Griffith CJ in Chia Gee v Martin (1905) 3 CLR 649 at 653.
Paragraph 22 was struck out. This involved an argument as to the operation of the time limitation provisions in the Trade Practices Act 1974. Again, this paragraph clearly was badly pleaded in accordance with the decisions referred to by the primary Judge.
The present is not a case where the applicant for leave complains of the striking out of the whole of a pleading, so that there is no case to go forward. The position is that those portions of the amended statement of claim which were clearly bad have been struck out, but in the case of one claim - that based on negligence - it is conceivable that the applicant might be able to replead a good case and leave has been reserved to enable this to be done. Likewise, the misrepresentation claim remains on foot and was untouched by the orders of the primary Judge.
The points of law which were dealt with by the primary Judge were clearly covered by earlier authority. No case has been made out for the interference by this Court in a decision upon matters of practice and procedure.
I would dismiss the application for leave to appeal.
The appropriate order is that the applicant for leave pay the costs of the respondents on the motion.
JUDGE2
HILL J I would agree that the application for leave to appeal be refused.
I would add just this. It should by now be clear that howsoever it be pleaded, a case cannot be made out in Australia that mortgages are invalid on the ground that the operations of banks or finance companies in making loans involve the creation of credit. Particularly the decision in First National Bank of Montgomery v Jerome Daly (1968), County Court, Credit River, Minnesota, whether or not correctly decided under the law of Minnesota, is not part of the law of Australia.
If the various matters sought to be argued in cases such as Arnold v State Bank of South Australia (Full Court, unreported, 18 November 1992) and Warner v Elders Rural Finance Limited (Full Court, unreported, 26 March 1993) are henceforth sought to be reargued in this Court, it is my view that the party seeking to reargue these matters may face an order for indemnity costs.
JUDGE3
COOPER J I agree that the application for leave to appeal should be dismissed for the reasons given by my brothers. I have nothing further to add.
(The parties addressed on costs.)
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