Poulos v Commonwealth Bank of Australia Ltd (No 3)

[2020] NSWCA 72

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72
Hearing dates:	On the papers
Date of orders:	22 April 2020
Decision date:	22 April 2020
Before:	Payne, Brereton JJA
Decision:	(1) The notice of motion filed on 13 December 2019 is dismissed; (2) Applicant on the motion to pay the costs of the respondent; (3) Should the applicant seek to file any further application in this Court against the respondent in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal, the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.
Catchwords:	PROCEDURE – judgments and orders – amending, varying and setting aside – where no basis for application – where application restates matters addressed in impugned judgment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, 36.16, 36.17, 36.18
Cases Cited:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; (2013) 87 ALJR 1159 Commonwealth Bank of Australia v Hacide Pty Ltd (Supreme Court (NSW), Sully J, 28 November 1989, unrep) Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51 Government Insurance Offıce (NSW) v Rosniak (1992) 27 NSWLR 665 Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134 Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 In Re St Nazaire Co (1879) 12 Ch D 88 Murray v Figge (1974) 4 ALR 612 New South Wales Bar Association v Smith [1991] NSWCA 215 Poulos v Commonwealth Bank of Australia Ltd (No 2) [2019] NSWCA 290 Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 Poulos v Elliot [2019] NSWSC 423 Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77; (2014) 98 ATR 75 Raybos Australia Pty Ltd v Tectran Corp Pty Ltd [1993] NSWCA 226 Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260 The Texas Company (Australasia) Ltd v The Federal Commissioner of Taxation (1940) 63 CLR 382; [1940] HCA 9 Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41 Winrobe Pty Ltd v Sundin’s Building Co Pty Ltd (No 2) [1992] NSWCA 278
Category:	Principal judgment
Parties:	Patricia Poulos (Applicant) Commonwealth Bank of Australia Ltd (Respondent)
Representation:	Counsel: Applicant (Self-represented) F Roughley (Respondent)   Solicitors: Applicant (Self-represented) Gadens (Respondent)
File Number(s):	2019/00226568
Publication restriction:	Nil

Judgment

1. THE COURT: This is the third occasion on which this Court has been asked to set aside a judgment obtained over 30 years ago by the Commonwealth Bank of Australia Ltd (“the CBA”) for possession of a property in South Cronulla owned by Hacide Pty Ltd, a company controlled by the applicant, Mrs Patricia Poulos, and her husband, Mr John Poulos, who were also defendants in those proceedings: Commonwealth Bank of Australia v Hacide Pty Ltd (Supreme Court (NSW), Sully J, 28 November 1989, unrep). In 1991, an appeal to this Court from that judgment was dismissed: Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134.

2. On 11 January 2018, Mrs Poulos, who at all times has been self-represented, commenced new proceedings in the Equity Division, against Mr J D Elliott as first defendant and the CBA as second defendant, seeking to set aside the orders made 30 years ago.

3. On 12 April 2019, Kunc J summarily dismissed those proceedings as against the CBA: Poulos v Elliot [2019] NSWSC 423. No order was made in respect of the proceedings against Mr Elliott. On 4 October 2019, this Court refused leave to appeal from that decision: Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 (“the 4 October judgment”). On 18 October 2019, Mrs Poulos filed a notice of motion seeking orders setting aside the orders made in the 4 October judgment, pursuant to rr 36.15, 36.16, 36.17, and 36.18 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). On 2 December 2019, that motion was dismissed with costs: Poulos v Commonwealth Bank of Australia Ltd (No 2) [2019] NSWCA 290 (“Poulos (No 2)”).

4. On 13 December 2019, Mrs Poulos filed another motion, seeking the same relief under UCPR rr 36.15, 36.16, 36.17, and 36.18, together with prayers for relief of a broader nature being a “rehearing” of the application determined on 4 October 2019, orders setting aside the decision of Kunc J, and ancillary orders relating to the contents of what Mrs Poulos described as the “notice of appeal” and costs.

5. The affidavit in support sworn by Mrs Poulos on 13 December 2019 asserted, in essence, that in Poulos (No 2) this Court “illuminates the acceptance of lies, deceit and concealment of evidence”. The complaint was repeatedly made that the Court failed to acknowledge the significance of numerous matters regarding various documents relating to mortgages and the discharge of those mortgages. Written submissions by Mrs Poulos filed on 24 February 2020 in some ways extended those complaints, including by reference to evidence which had not been put, properly or at all, before the Court.

6. Uniform Civil Procedure Rules 2005 (NSW) r 36.15 provides for the setting aside of a judgment or order, if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith; or if the parties to the proceedings consent. The applicant has not established any basis to think that the 4 October 2019 judgment of the Court was given or entered irregularly, illegally or against good faith: UCPR r 36.15(1). The CBA does not consent to the orders of the Court being set aside: UCPR r 35.15(2). In the judgment delivered on 4 October 2019, the Court addressed the gravity of an order for summary dismissal. The judgment examined the facts of the applicant’s case and addressed the submissions made by the applicant. The further application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.15 must be dismissed.

7. Uniform Civil Procedure Rules 2005 (NSW) r 36.16 provides for the setting aside of a judgment upon a motion filed before, or within 14 days after, it is entered, or if it is a default judgment or one given in the absence of a party. The judgment of this Court was neither a default judgment nor given in the absence of a party. The present motion, filed on 13 December 2019, was not filed within 14 days after the 4 October judgment was entered (though it was filed within 14 days after judgment in Poulos (No 2) was entered, which itself dismissed a motion filed within 14 days after the 4 October judgment was entered). But assuming that the motion was filed within the relevant 14-day period, that does not of itself entitle the applicant to a re-opening of the matter. The power to re-open on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise of the power, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. [1] It is to be exercised only where the existing judgment or order is shown to be affected by some relevant irregularity, or by a misapprehension of law or fact,[2] such as a failure to afford a party a proper opportunity to be heard,[3] or that the court had misapprehended a party’s evidence or submissions. [4]   And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case. [5]

   1. Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41; Wentworth v Rogers (No 9) (1987) 8 NSWLR 388; Re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88; Murray v Figge (1974) 4 ALR 612; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; (2013) 87 ALJR 1159.

   2. Elliott v The Queen (2007) 234 CLR 38 at 48; [2007] HCA 51 at [32].

   3. Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301–2; [1993] HCA 6.

   4. Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3]; (2014) 98 ATR 75 at 77.

   5. Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45; [1982] HCA 51; The Texas Company (Australasia) Ltd v The Federal Commissioner of Taxation (1940) 63 CLR 382 at 457; [1940] HCA 9; In Re St Nazaire Co (1879) 12 Ch D 88; Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27; Winrobe Pty Ltd v Sundin’s Building Co Pty Ltd (No 2) [1992] NSWCA 278; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd [1993] NSWCA 226; Government Insurance Offıce (NSW) v Rosniak (1992) 27 NSWLR 665; Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; (2013) 87 ALJR 1159 at [17].

8. No such basis has been shown in the applicant’s evidence or submissions for the exercise of any powers under that provision. The central focus of the applicant’s submissions was the mortgages and discharges of mortgages related to various properties. That was the focus of the hearing before the Court on the application for leave to appeal. That subject was extensively addressed in the 4 October 2019 judgment.

9. Mrs Poulos’ basal proposition (which can be distilled from [40] of her submissions in chief on the present motion) is that there was no settlement on 3 May 1985; that the judgment of Sully J in 1989 which held that there was, and the judgment of this Court which affirmed it, were procured by fraud, in the concealment of the circumstance that settlement had, allegedly, in fact already taken place on 15 August 1984; and that Kunc J erred in holding that there was no arguable case to that effect. In aid of her application to “reopen” her application for leave to appeal, she submitted that:

1. Kunc J, and this Court on the application for leave to appeal, considered only six documents proffered as “fresh facts”, when there were many more;

2. further “fresh” evidence had since been discovered; and

3. certain “disparaging remarks” made by Sully J concerning her evidence, which were repeated by Priestley JA, had “filtered through” to this Court’s 4 October judgment.

10. In the 4 October judgment, at [43]-[44], we gave our own reasons for concluding that, accepting that it could not at this stage of the proceedings be concluded that the ANZ Number 52 Discharge was not a “fresh fact”, nonetheless its availability would have made no difference to the outcome of the proceedings before Sully J. Essentially, that was because it was not at all probable that, as Mrs Poulos contended, CBA received the Number 52 ANZ Discharge and Certificate of Title in or about August 1984, being the date engrossed in typewriting on the dealing, rather than on 3 May 1985.

11. Nothing in the evidence adduced on the current motion, or in Mrs Poulos’ submissions, or in the further “fresh” evidence to which she refers, shows any reason for reconsidering that conclusion. To the contrary, as the respondent’s counsel submits, the further “fresh” material served by Mrs Poulos tends to support the conclusion that there was a settlement on 3 May 1985: the discharge of mortgage by Finance Corporation of Australia (“FCA”), signed on behalf of the discharging mortgagee FCA by its duly appointed attorney Sandra Crawford, bears the date “3-5-85”. Mrs Poulos submits that Ms Crawford could only have executed that document before FCA’s liquidation in 1982. However, that overlooks that (assuming that FCA was liquidated in 1982, of which there is no evidence before the Court), a company in liquidation does not cease to exist, unless and until it is deregistered. Rather, upon liquidation, its governance vests in the liquidator in place of the directors.

12. As the 4 October judgment observes (at [22]), before Kunc J, Mrs Poulos was invited to identify the “new evidence” on which she relied to demonstrate a basis on which it could be said that the judgment of Sully J had been obtained by fraud, and she identified six documents. His Honour was entitled to proceed, as he did, on the basis that her case was founded on the six documents so identified. Moreover, as appears from [45] of the 4 October judgment, this Court did not limit our consideration to those six documents, though they were certainly the main focus of debate and deliberation.

13. As to the so-called disparaging remarks, in the 4 October judgment, we merely noted (at [18]) that Sully J, while rejecting certain evidence of Mrs Poulos, did not make a finding that she was deliberately untruthful, but found that “on a significant aspect of the case her evidence is, for whatever reason, demonstrably unreliable”. Our analysis (at [43]-[44]) was based on objective probabilities.

14. No relevant irregularity, nor any misapprehension of law or fact, has been demonstrated such as would warrant re-opening the application for leave to appeal. No relevant change of circumstances justifying the reopening of the decision to refuse leave has been shown. The applicant’s affidavit and submissions complain, in substance, of alleged errors in the judgment of 4 October 2019 of a kind which, if they call for remedy, can be remedied only on an appeal to the High Court of Australia. The further application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.16 must be dismissed.

15. Uniform Civil Procedure Rules 2005 (NSW) r 36.17 provides for the correction of a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order. No clerical mistake, or error arising from an accidental slip or omission, has been identified. The further application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.17 must be dismissed.

16. Uniform Civil Procedure Rules 2005 (NSW) r 36.18, which provides for the variation of a judgment or order against a party operating under unregistered business name, so as to make it a judgment or order against the person in the person’s own name, is manifestly irrelevant to this case. The further application to set aside the 4 October 2019 judgment of the Court pursuant to UCPR r 36.18 must be dismissed.

17. Apart from these specific powers invoked by the applicant, this Court also has an inherent power to set aside or vary a judgment. [6] However, as was said by the Court in Wentworth v Rogers (No 9):[7]

“… it is a discretion to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal.”

6. Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 394-395; New South Wales Bar Association v Smith [1991] NSWCA 215.

7. (1987) 8 NSWLR 388 at 395.

18. The inherent power is subject to at least the same constraints imposed by the public interest in the finality of litigation as is the statutory power to re-open on an application made on motion filed within 14 days after entry of judgment, which has been addressed above. For those same reasons, it does not avail the applicant here, whose complaint is, in essence, not of irregularity, but of error, which can be rectified, if at all, only on appeal.

19. For these reasons the applicant’s notice of motion filed on 13 December 2019 must be dismissed with costs.

20. The CBA also seeks an order to the effect that “should the Applicant seek to file any further application against the Respondent in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal, the Applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process”.

21. The CBA relied on Teoh v Hunters Hill Council (No 6) [2012] NSWCA 260 as authority for making such an order here. [8]

    8. See also Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 where final dispositive orders were made.

22. In Poulos (No 2), we concluded that sufficient cause had not then been shown to adopt the procedure outlined in Teoh (No 6): at [12]. The repetition of essentially the same claim by Mrs Poulos, almost immediately after delivery of judgment in Poulos (No 2), has persuaded us that an order should now be made that if the applicant seeks to file any further application against the respondent in this Court in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal, the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.

23. The orders of the Court are:

1. The notice of motion filed on 13 December 2019 is dismissed;

2. The applicant on the motion is to pay the costs of the respondent;

3. Should the applicant seek to file any further application in this Court against the respondent in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal, the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.

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Endnotes

Decision last updated: 22 April 2020