Rodgers v ANZ Banking Group Ltd

[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…