Trezise, J.C. v National Australia Bank Ltd

[1995] FCA 64

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )          No. 372 of 1994
  )
GENERAL DIVISION                 )

B E T W E E N:

JOHN COLIN TREZISE & ORS
  Applicants
  - and -

NATIONAL AUSTRALIA BANK LTD & ORS
  Respondents

JUDGE:    Heerey J

DATE:     16 February 1995

PLACE:    Melbourne

EX TEMPORE REASONS FOR JUDGMENT

The respondent National Australia Bank Limited (the Bank) applies for summary dismissal of the claim against it.  I need not traverse the complex history of this matter.  Much of it is set out in the reported decision of the Full Court of this Court in Trezise v National Australia Bank Limited (1994) 50 FCR 134, which was an appeal from a decision giving summary judgment in favour of the Bank in an earlier proceeding brought by Mr John Trezise, members of his family and a family company (collectively "the Trezises").

At the forefront of the argument of the Bank for the order presently sought is the principle laid down in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. It was said that the present proceeding seeks the same relief that was sought in the earlier claim, that is to say orders setting aside a deed of settlement of earlier litigation between the Trezises and the Bank (No VG 200 of 1992), that there was nothing in the present case as pleaded that could not have been raised in the earlier proceeding, and that no "special circumstances" exist within the meaning of the Anshun rule which would allow the Trezises, or some of them, to seek the same relief in a further proceeding. 

It is necessary to bear in mind, of course, that the Court should only terminate a case and deny a party's right to trial of the action in circumstances where a claim is shown to be "absolutely hopeless" or "manifestly groundless" or "foredoomed to fail" .  The principles are well established:  see Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 and General Steel Industries Inc v The Commissioner of Railways (NSW) (1964) 112 CLR 125 at 128-130. Recently Dawson J has said:

"Where, as in this case, the applicant seeks to have the court exercise a summary jurisdiction effectively terminating an action, great caution is to be exercised.  It must be quite clear that the plaintiff does lack a cause of action before he is denied access to the court upon that ground.  Where any real question of fact or law emerges upon which the rights of the parties depend, then that question must be determined and it is not possible to stay the action as frivolous or vexatious."

(Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388. See also Walton v Gardiner (1993) 177 CLR 378 at 393)

Therefore, since the Anshun rule would be raised as a defence to the present claim, the Bank has to show at the outset that the applicants would have no chance of showing that there were "special circumstances" within the meaning of that rule.
I am not satisfied that that is the case.  It seems to me at least open to reasonable argument that the arguing by the Trezises of knowledge of the full extent of the relationship between Williams and Williams and the Bank was a special circumstance in the sense of being something outside the ordinary run of things.  In the Full Court decision there was reference to the fact that, as is common ground, the Trezises were aware that their solicitors were customers of the Bank and that Mr Williams had made passing mention of using the costs obtained from the settlement towards satisfaction of liability to the Bank.

In the joint judgment of Sweeney J and myself it was said (150 FCR at 147):

"Likewise the allegation about Mr W's mortgage with the Bank cannot be sufficient even accepting that the knowledge of the Bank as a corporation that Mr W was its mortgagor is to be imputed to its employees who were responsible for instructing solicitors and counsel in the first proceeding.  There is no suggestion that Mr W was in default or had any particular difficulty in relation to the mortgage.  The bare fact that Mr W had given a mortgage to the Bank cannot rationally lead to the inference that he was likely because of that fact to exercise improper influence on his client to achieve the settlement which was in the Bank's interest and against that of his client.  (Emphasis added)

By contrast, the undisputed facts now are that the position of Williams and Williams vis-à-vis the Bank was a very serious one indeed, involving an undisputed claim by the Bank for more than $700,000 in respect of which the Bank in the early part of 1993 was threatening to exercise its full legal rights. 

It was also argued that there was not, and could not be, sufficient evidence to support the case that is put, in various ways, against the Bank.  But that is not something which should lead to the Court exercising its discretion to dismiss summarily the applicants' claim at this stage.  Since the applicants' claim is essentially one of wrongful dealings between the Bank and Williams and Williams to the prejudice of their interests and without their knowledge, it is perhaps not surprising that they do not, at least at this stage, proffer any direct evidence or provide particulars as to conversations, correspondence, etc, of those dealings.  Essentially their case is a circumstantial one.   It is no part of my function at this stage to assess the applicants' chances of success.  All I can say is that the Court's decision at trial must depend at least in part on a careful analysis of the evidence as to what was passing between the various parties at each stage of the earlier litigation, and what inferences are to be drawn as to their respective states of mind.  It would be wrong to anticipate some future possible application for discovery and/or interrogation by the applicants and come to a hypothetical determination that such an application would be fishing.

For much the same reasons, I do not think any complaint about inadequate particulars in the amended statement of claim should lead to the conclusion that the action be summarily dismissed.  Counsel for the applicants has already indicated that further particulars will be provided including, amongst other things, various items of correspondence which have been disclosed in the affidavits filed on behalf of the Bank in support of the present application.  So for those reasons the application is dismissed.

I order that the Bank pay the costs of the applicants of the notice of motion dated 1 February 1995 including reserve costs, if any.  I order under O 62 r 3 that the costs be paid forthwith.

I grant the applicants leave to file and serve a further amended statement of claim and/or further and better particulars, if so advised, by 9 March 1995.  I order the applicants pay any costs thrown away by reason of any such amendment.

I direct the respondents file and serve a defence within 28 days of such amended statement of claim and, if none is filed and served by 9 March 1995, then within 28 days of that date. 

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated:

Associate

Appearances

Counsel for the applicant:       Mr A Myers QC with Mr R

Greenberger

Solicitor for the applicant:     Harrison & Associates

Counsel for the first            Mr R Garratt

respondent:

Solicitor for the first              Mallesons Stephen Jaques

respondent:

Date of hearing:                 16 February 1995