Rodgers v ANZ Banking Group Ltd

Case [2005] QSC 365


SUPREME COURT OF QUEENSLAND

CITATION:

Rodgers v ANZ Banking Group Ltd & Anor [2005] QSC 365

PARTIES:

STEPHEN ALEXANDER RODGERS and ROSLYN RODGERS

(Plaintiffs/Respondents)

v  

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN 11 005 357 522)

(First Defendant/Applicant)

and  

MINTER ELLISON LAWYERS

(Second Defendant/Applicant)

FILE NO:

S319/2005

DIVISION:

Trial Division

DELIVERED ON:

8 December 2005

DELIVERED AT:

Rockhampton

HEARING DATE:

22 August 2005

JUDGE:

Dutney J

ORDER:

Action S319 of 2005 filed in Rockhampton Registry be struck out

CATCHWORDS:

PRACTICE – APPLICATION – STRIKE OUT – where the first defendant commenced an action against the plaintiff to recover money payable under a written guarantee and recovery of possession of mortgaged property – where the judgment was given against the plaintiff – where the plaintiff appealed against findings of fact – where appeal was dismissed – where the plaintiff sought special leave to appeal to the High Court – where special leave refused – where the plaintiff alleges orders in the original proceedings were obtained by fraud – where the plaintiff seeks to reopen decision of the trial judge and subsequent appeal and special leave application – whether the plaintiff’s pleadings are embarrassing – whether proceedings amount to abuse of process

PRACTICE – ACTION – SETTING ASIDE JUDGMENT – where the plaintiff alleges fresh evidence emerged after the conclusion of initial proceedings – where the fresh evidence does not establish the judgment was produced by the fraud of the first defendant – where new fresh evidence is not material to affect the outcome of the trial

ANZ Banking Group Ltd v Rodgers & Anor [2003] QSC 304, cited.

ANZ Banking Group Ltd v Rodgers & Anor [2004] QCA 186, cited.

Assets Co Ltd v Mere Roihi [1905] AC 176, cited.

Birch v Birch [1902] P 130 at 135, cited.

Boughen v Abel [1987] 1 Qd R 138, applied.

Butler v Fairclough (1917) 23 CLR 78, cited.

Charles Bright & Co Ltd v Sellar [1904] 1 KB 6, cited.

D’Orta-Ekenaike v Victorian Legal Aid (2005) 29 ALJR 755, cited.

Emanuel Management Pty Ltd v Foster’s Brewing Group Ltd [2000] QSC 430, cited.

Henderson v Henderson (1843) 3 Hare 100, cited.

Jonesco v Beard [1930] AC 298, cited.

McDonald v McDonald (1965) 113 CLR 529, cited.

McHarg v Woods Radio Pty Ltd [1948] VLR 496, cited.

Monroe Schenider Associates Inc v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, cited/applied.

Port of Melbourne Authority v Anshun (1981) 147 CLR 589, followed/applied.

Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188, cited.

The Ampthill Peerage Case [1977] AC 547, cited.

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, cited/followed.

Yat Tung Investment Co Ltd v Dao Hing Bank Ltd [1975] AC 581, cited.

Young v Hoger [2001] QCA 453, cited.

Uniform Civil Procedure Rules 1999 (Qld), r 171, 667.

COUNSEL:

Plaintiff/Respondent in person

Mr. J. D. McKenna…

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Rodgers v ANZ Banking Group Ltd [2005] QSC 365
Case
[2005] QSC 365
Decision Date

CaseChat Overview and Summary

Rodgers v ANZ Banking Group Ltd concerned an application by the plaintiff to strike out proceedings initiated by the first defendant, ANZ Banking Group Ltd, against the plaintiff to recover money payable under a written guarantee and the possession of mortgaged property. The plaintiff had previously appealed against findings of fact made in the lower court, and that appeal was dismissed. The plaintiff then sought special leave to appeal to the High Court, but this was also refused. The plaintiff now sought to reopen the decision of the trial judge and the subsequent appeal and special leave application on the basis of alleged fraud and newly discovered evidence. The legal issues for the court to decide were whether the plaintiff's pleadings were embarrassing and whether the proceedings amounted to an abuse of process.

The court held that the plaintiff's pleadings were indeed embarrassing as they did not provide a proper basis for the relief sought. The plaintiff had not presented any fresh evidence that established that the judgment was obtained by fraud. Furthermore, the new evidence presented was not material enough to affect the outcome of the trial. The court found that the plaintiff was attempting to relitigate issues that had already been determined by the higher courts. The court held that the proceedings amounted to an abuse of process, as the plaintiff was using the legal system for an improper purpose. The court concluded that the plaintiff's application to strike out the proceedings was well-founded and ordered the action to be struck out.

Orders

Orders of the court

Action S319 of 2005 filed in Rockhampton Registry be struck out

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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