Von Risefer v Permanent Trustee Company Pty Ltd

[2001] FCA 1286

von Risefer v Permanent Trustee Company Pty Ltd [2001] FCA 1286

von Risefer v Permanent Trustee Company Pty Ltd [2001] FCA 1286

EUSTACE VON RISEFER AND ELIZABETH VON RISEFER v PERMANENT TRUSTEE COMPANY PTY LTD AND LATROBE HOME LOANS AUSTRALIA PTY LTD

Q 106 OF 2000

DOWSETT J

24 AUGUST 2001

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 106 OF 2000

BETWEEN:

EUSTACE VON RISEFER

FIRST APPLICANT

ELIZABETH VON RISEFER

SECOND APPLICANT

AND:

PERMANENT TRUSTEE COMPANY PTY LTD

FIRST RESPONDENT

LATROBE HOME LOANS AUSTRALIA PTY LTD

SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

24 AUGUST 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.       The application is dismissed.

2.       The applicants to pay the respondents' costs of the proceedings, including reserved costs.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 106 OF 2000

BETWEEN:

EUSTACE VON RISEFER

FIRST APPLICANT

ELIZABETH VON RISEFER

SECOND APPLICANT

AND:

PERMANENT TRUSTEE COMPANY PTY LTD

FIRST RESPONDENT

LATROBE HOME LOANS AUSTRALIA PTY LTD

SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	24 AUGUST 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1       This has proved to be a difficult and extended matter, partly as a result of the applicants not having legal representation, and partly because of their absolute conviction that they are the victims of some sort of conspiracy. I have previously struck out a statement of claim and, more recently, refused to permit them to deliver a new statement of claim because of its form. I have on these occasions given reasons for my decisions.

2       Today I have before me an application to dismiss the action, presumably pursuant to O 20 r 2. The applicants have sought to avoid the consequences of that motion by seeking leave to deliver a further statement of claim which is part of exhibit 1. That document, as I have previously indicated, is, in my view, embarrassing, vexatious, argumentative and, in other respects, quite offensive, and ought not to be received. It revisits many of the issues which were dealt with in the draft statement of claim which I have previously refused leave to deliver. To the extent that it repeats those issues, it is not necessary that I say any more about it. Indeed, I must confess that I have difficulty in commenting upon this pleading and upon its predecessors using the concepts and language which are common to the law. These documents are unrecognisable as statements of claim.

3       To the extent that the draft produced today adds anything to the previous attempts, those additions appear to me to be irrelevant and even more offensive than the content of its predecessors. Aspersions are cast upon judges and others with no apparent basis and with virtually no particularity. I do not think that any useful purpose would be served by my seeking again to analyse the content of the proposed amended statement of claim. It is sufficient to say that it is not a document which can properly serve as a pleading in this Court.

4       I have, nonetheless, given the applicants opportunities to address me orally as to their causes of action. I have no doubt that they understand precisely what it is that they must tell me. I have explained to them that what is involved is a statement of their complaints about the conduct of the respondents, coupled with some indication of the ways in which they claim to have suffered loss.

5       Much of what they seek to do involves revisiting proceedings which were disposed of in the Supreme Court last year, and have been the subject of an appeal. I have tried to explain that such matters cannot be properly ventilated here; they must be ventilated in the Supreme Court or elsewhere by way of appeal. I have also pointed out that at least as between the applicants and the first respondent, Permanent Trustee Company, there are issues of res judicata and issue estoppel. Nonetheless, the applicants have been reluctant to accept that they cannot revisit those proceedings.

6       There is one potential cause of action which was eventually identified by Mrs von Risefer in the course of her address to me. It was an assertion that La Trobe Homes, the second respondent, had provided to an agency, apparently called the Credit Rating Authority, a report of the applicants' default under the mortgage pursuant to which Permanent Trustee Company is the mortgagee and La Trobe Homes the mortgage manager. It was alleged by Mrs von Risefer that the applicants were not then in default and that, as a result of that representation, they suffered loss in that very substantial funding, in the order of millions of dollars, was withdrawn. A second notice was given to the Credit Rating Authority for what I imagine was the total amount of the loan, namely, $369,042. The first of these notices was given on 30 April 1998 and the second on 22 July 1998.

7 To the extent that the applicants were able to identify any provision of the Act which might have been relevant, they seemed to rely on s 52, although there were some oblique references to other sections. There may be some doubt as to whether any such representations could constitute misleading and deceptive conduct causing damage to the present applicants for the purposes of s 52 and s 82 of the Trade Practices Act 1974 (Cth) (the "Act"). I am willing to assume for present purposes that such conduct could, in an appropriate case, be the subject matter of such a claim, provided that it could be shown, using the language of s 82, that any loss or damage was suffered "by conduct of another person" in contravention of a relevant provision of the Act.

8       It seems quite unlikely that the report of a default in the amount of $125 could lead to the withdrawal of funds totalling millions. Such a decision must have been based upon much wider considerations so that it could not be said that any loss suffered by the applicants was caused by the conduct of the respondents. As to the second notice in the sum of $369,042, it must be kept in mind that the Supreme Court has held, in the action to which I have referred, that the applicants were indebted to the first respondent in that amount. Now it may be that this finding is not binding upon the present applicants as between themselves and La Trobe Homes, or at least as much may be arguable. However it may also be arguable that Latrobe Homes was a privy of Permanent Trustee Company so that there is such an estoppel by virtue of the judgment. Even if that is not so, it is inconceivable that the relevant questions of fact could be decided differently in these proceedings as between Latrobe Homes and the applicant from the way in which they were resolved as between Permanent Trustee Company and the applicants in the Supreme Court proceedings. For the applicants to assert any basis for believing that the issue might be resolved differently in these proceedings is, to my mind, fanciful. It seems likely that the witnesses will be the same, and the issues are precisely the same. In any event, the notice merely recorded what the Supreme Court has found to be the case.

9       For that reason, I consider that this cause of action is also quite fanciful and that to allow it to be prosecuted would be to permit vexatious litigation, particularly in view of the absence of any viable pleading. In the circumstances, for these reasons and for the reasons given previously, I consider that the applicants have failed to demonstrate any viable cause of action. I also consider that the proceedings are shown to be frivolous and vexatious. The application will be dismissed.

10       I will order the applicants to pay the respondents' costs of the proceedings, including reserved costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        24 August 2001

#DATE 24:08:2001

The Applicants appeared In Person.
Counsel for the Respondent:	Mr M J Drysdale
Solicitor for the Respondent:	MacGillivrays
Date of Hearing:	24 August 2001
Date of Judgment:	24 August 2001