Walker v Westpac Banking Corporation (ARBN 007 457 141)
[2001] FCA 746
•12 JUNE 2001
FEDERAL COURT OF AUSTRALIA
Walker v Westpac Banking Corporation (ARBN 007 457 141) [2001] FCA 746
KELL WALKER v WESTPAC BANKING CORPORATION
Q 114 OF 2001DRUMMOND J
12 JUNE 2001
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 114 OF 2001
BETWEEN:
KELL WALKER
APPLICANTAND:
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
12 JUNE 2001
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The applicant’s proceeding be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the proceedings.
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 114 OF 2001
BETWEEN:
KELL WALKER
APPLICANTAND:
WESTPAC BANKING CORPORATION (ARBN 007 457 141)
RESPONDENT
JUDGE:
DRUMMOND J
DATE:
12 JUNE 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Mr Walker has commenced an action in this Court against Westpac Banking Corporation claiming possession of a property at 15 Young Street, Southport and another property at 41 Helensvale Road, Helensvale. He seeks interlocutory relief, in effect, restraining Westpac from taking further action with respect to obtaining possession of both properties until the present action is determined. The bank, by a notice of motion, seeks an order pursuant to O 20 r 2 the Federal Court Rules permanently staying or dismissing Mr Walker’s action. It is appropriate to deal with the notice of motion first.
The registered proprietor of both properties is a Ms Tan. She granted a mortgage over each to Westpac in January 1998. Mr Walker is Ms Tan’s husband. After the mortgages were registered, he took a lease over each property from his wife. She went into default under both mortgages in April 1999. The total amount of her indebtedness secured by the mortgages was then well in excess of $1,000,000. The relevant sequence of events in relation to the Helensvale property is set out by Mr Meager in his affidavit of 30 May 2001; there is no challenge to the accuracy of what is there deposed to.
In April 2000, the bank commenced Supreme Court proceedings for possession of 41 Helensvale Road. In September 2000, Mullins J of that Court granted summary judgment in favour of the bank against Ms Tan. She filed a notice of appeal in October and a little while later, on the bank’s application, a warrant for possession by the bank of the Helensvale Road property was issued. Ms Tan’s response, in December 2000, was to apply for a stay of enforcement of the order for possession obtained by the bank under its summary judgment.
The stay application was dismissed in the Supreme Court on 14 December 2000. The next thing that happened was that claims were made by Mr Walker and a company with which he was involved, on the basis of them being lessees of the Helensvale Road property. In March 2001, Chesterman J in the Supreme Court dealt with these claims by Mr Walker and the company, and gave leave to the bank to issue an enforcement warrant directed to both Mr Walker and the company I have referred to, in relation to possession of the 41 Helensvale Road property as against them. On 15 March 2001, an enforcement warrant for possession directed to Ms Tan, Mr Walker, and the company, was issued out of the Supreme Court and, a few days later, the sheriff delivered up possession of that property to the bank. In May, Ms Tan’s appeal against the summary judgment for possession which the bank obtained against her back in September 2000 was dismissed.
So far as the other property - 15 Young Street - is concerned, the bank commenced proceedings in the Supreme Court in February of this year for possession of this property as against Ms Tan. Upon Mr Walker and the company with which he is associated, and to which I have already referred, claiming rights as lessees in respect of the property, subsequent to the commencement of proceedings by the bank for possession against Ms Tan, the bank joined Mr Walker and the company as defendants in the proceedings it had brought against Ms Tan in relation to 15 Young Street.
In April of this year, Mr Walker made application to the Supreme Court to transfer the proceedings in that Court into this Court. On 23 April, Moynihan J dismissed the transfer application. Immediately afterwards, the bank filed an application for summary judgment against Ms Tan and Mr Walker. That matter ultimately came on for determination before Mullins J on 22 May last and her Honour gave summary judgment in favour of the bank against Ms Tan with the latter’s consent. Mullins J also then granted the bank summary judgment of the Young Street premises as against Mr Walker. Mullins J ordered that the enforcement orders she then made were to be stayed until 6 July 2001. The foundation for the summary judgments in favour of the bank for possession of both premises was that under relevant Queensland statutory law, as their Honours observed, the bank would only have been bound by the leases upon which Mr Walker relied if it had consented to them being granted, the mortgages having been registered prior to the grant of the leases. Their Honours based summary judgment in both cases on the proposition that there was no basis for thinking that Mr Walker might be able to show that he had the bank’s consent to the grant of the leases to him.
Mr Walker’s contention is that the judgments for possession made against Ms Tan and himself in respect of both the Helensvale Road property and the Young Street property were made without jurisdiction, because he contended before those various orders were made that he wished to rely upon certain claims under federal law in respect of which only this Court has jurisdiction, and that the orders for possession subsequently made in the Supreme Court were therefore made without jurisdiction. The foundation for the action brought in this Court is the same. Mr Walker again contends that there are claims which, if well founded, would defeat the bank’s entitlement to possession of both premises, which he wishes to make under federal law. He says they are claims which are within the exclusive jurisdiction of this Court.
There are a number of problems with Mr Walker’s submission. Firstly, it is settled law that the decision of a superior court, such as the Supreme Court of Queensland, even if in excess of jurisdiction is, at worst, voidable and is valid unless and until it is set aside. See Cameron v Cole (1944) 68 CLR 571 at 590. The orders for possession affecting Mr Walker that have been made in the Supreme Court in respect of both properties have never been successfully challenged by him on appeal. They therefore remain of full force and effect, even if it be the case that they were made without jurisdiction because Mr Walker has a good claim under federal law which answers the bank’s entitlement and which can only be brought in the Federal Court.
It was said in argument that even if that be so, it may be open to Mr Walker at this late stage, nevertheless, to obtain an injunction in this Court to vindicate, or at least to protect until final determination of the action brought by Mr Walker in this Court, the claims he makes to possession as against the bank. It was said that an interlocutory injunction could not be issued by this Court to restrain the bank from proceeding further with respect to its claims for possession to both properties.
A difficulty in relation to Helensvale is that the bank has already gone into possession, although it has not yet gone into possession of Young Street. Be that as it may, the fundamental difficulties Mr Walker faced both in all the proceedings in the Supreme Court before Chesterman, Moynihan and Mullins JJ, and in the proceedings today before me, is that he has never attempted to go beyond asserting that there are claims he can make under Federal law, which are within the exclusive jurisdiction of this Court to determine. He has never gone so far as to put evidence on to indicate that he has an arguable case in respect of any such claims. Moreover, as I understand things, in the Supreme Court he contented himself merely with asserting that he had claims under various Federal statutes which can only be brought in this Court. He did not even descend to identifying the particular provisions of the various federal statutes that he wanted to rely upon, let alone go into evidence to show that he might have an arguable case in respect of any such claims.
Chesterman J, in giving judgment for possession against Mr Walker, said this in relation to the assertion that there were claims Mr Walker had which went to answer the bank’s claim for possession, but which were within the exclusive jurisdiction of this Court:
“The submission that this Court should not proceed to hear the matter because the Federal Court might have jurisdiction if the mortgagor decides to bring an action in that Court is, I think, without substance. In any event it is clear that any such suit brought in the Federal Court would not be within the exclusive jurisdiction of that Court.”
His Honour was clearly enough referring to the fact that, while Mr Walker had asserted there were federal claims available to answer the bank’s claim to possession, nothing had been put before him to show that there might be some substance in such claims. When Moynihan J dismissed Mr Walker’s application to transfer the proceedings from the Supreme Court in to this Court, he said:
“The issue of transfer of proceedings to the Federal Court seem to have been raised in earlier proceedings before Justice Chesterman between the bank and the first defendant [ie, Ms Tan]. His Honour there remarked that there appeared to be nothing which had the consequence that the matter could not be heard in this Court or supporting its transfer to the Federal Court.
The situation which arises now is little different. In my view there is nothing disclosed in the material which warrants a transfer of the proceedings to the Federal Court.”
His Honour can only be taken there to have been remarking upon the absence of any material to show that Mr Walker might have an arguable case for the proposition that he had a claim under Federal law exclusively within the jurisdiction of the Federal Court which, if well founded, would answer the bank’s claim to possession. Mullins J, in giving summary judgment for possession of the Young Street premises earlier this year, said:
“The issues raised in the second defendant’s [ie, Mr Walker’s] material relative to his dealings with Westpac, appear to relate to matters that arise from alleged conduct by Westpac, in respect to the leasing by the first defendant to the second defendant in the subject premises for a term of three years, from 1 December 1999.
It is not apparent to me that those matters are not within the jurisdiction of the Supreme Court. In any case that issue between the parties on this application has been determined by Justice Moynihan.”
Her Honour again can, I think, only be taken there as referring to the absence of any basis for thinking that Mr Walker might have an arguable case that he has defences under federal law exclusively within the jurisdiction of this Court to the bank’s claim for possession.
So far as the position today is concerned, Mr Walker frankly conceded that he had no material before this Court to suggest that he may have a good claim in relation to either property based on federal law that is within the exclusive jurisdiction of this Court. He orally indicated that he intended to make a claim against Westpac under s 46 the Trade Practices Act 1974 (Cth). He did not attempt to formulate the basis upon which he might wish to make such a claim. Nor did he put any material before the Court to suggest that there might be any substance, even arguably, to such a claim.
The only other matter upon which he relied in support of the proposition that he may have a good claim against the bank, even at this late stage, in respect of possession to both properties based on federal law, was the Australian Prudential Regulation Authority Act 1998 (Cth). When asked, he was unable to identify any particular provision or provisions of that Act upon which he might wish to rely and made no attempt to put evidence before the Court to suggest that he might factually have an arguable case based upon that Act which might serve to enable him to keep the bank out of possession of either of these properties.
I should say for completeness that Mr Walker did mention, without specifying them, that there were other federal claims that he would wish to make in the present proceedings, but they were not claims in respect of which he wanted to say the Federal Court alone had jurisdiction to deal.
In my opinion, the proceedings brought by Mr Walker are, for the reasons given, within O 20 r 2 the Federal Court Rules as being frivolous or vexatious. I will therefore make an order in terms of par 1 of Westpac’s notice of motion dismissing the proceeding.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate:
Dated: 18 June 2001
Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: C Wilson Solicitor for the Respondent: Allen Allen & Hemsley Date of Hearing: 12 June 2001 Date of Judgment: 12 June 2001
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