WISNIEWSKI v Australia and New Zealand Banking Group

[2015] FCCA 2186

FEDERAL CIRCUIT COURT OF AUSTRALIA

WISNIEWSKI v AUSTRALIA AND NEW ZEALAND BANKING GROUP [2015] FCCA 2186

Catchwords:
HUMAN RIGHTS – Abuse of process – whether there is any basis for a claim of contravention of the Disability Discrimination Act 1992 – no conduct identified – de minimis non curat lex – abuse of process – application dismissed.

Legislation:

Disability Discrimination Act 1999, ss.5, 6, 11, 24, 29A, 123

Federal Circuit Court Rules 2001, rr.1.03(4), 13.10 (c)

Human Rights and Equal Opportunity Commission Act 1986, s.49B

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
King v Blakely Ex Parte Association of Architects & Ors of Australia (1950) 82 CLR 54
Old UGC v IRC (2006) 225 CLR 274

Pinho v Andre [1994] VicSC 817 (20 December 1994), unreported

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Residual Assoc Group v Spalvins (2000) 202 CLR 629
Williams v The Queen (1978) 140 CLR 591 at 602

Applicant: JOHN WISNIEWSKI

Respondent: AUSTRALIA AND NEW ZEALAND BANKING GROUP

File Number: SYG 1913 of 2015

Judgment of: Judge Street

Hearing date: 13 August 2015

Date of Last Submission: 13 August 2015

Delivered at: Sydney

Delivered on: 13 August 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr Cavanagh
HWL Ebsworth Lawyers

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the Respondent’s costs of today as assessed or agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1913 of 2015

JOHN WISNIEWSKI

Applicant

And

AUSTRALIA AND NEW ZEALAND BANKING GROUP

Respondent

REASONS FOR JUDGMENT

1. This is an application purportedly within the Court’s jurisdiction under s.49B of the Australian Human Rights Commission Act 1986 in respect of an alleged contravention of the Disability Discrimination Act 1992.  The application refers to ss.5, 6, 11, 24, 29A and 123.  The application sets out what is alleged to have happened:

   to start with i got vision impairment and that I had clearly at the very beginning indicated to the banking officer at ANZ's branch in Liverpool, NSW .... then as he informed me about ANZ's $ 32 fee for this type of transaction I had decided to go ahead with the transaction {international money transfer to Poland ... ) and so I handed over to him earlier prepared all needed for the transaction information. So as he drafted the contract I had pointed out onto him the end point amount to be deposited into beneficiary's account in Poland asking him :"will the beneficiary in Poland receive this amount of money?" and the banking officer said yes and encircled with his own pen the end point amount on the contract's docket (that's the amount which beneficiary in Poland was to get) .... and clearly he added that no any extra fees or charges will be taken from the end point amount to be transmitted to nominated by me account in Poland .Then he stapled onto the contract 5 A 4 pages with densely printed on them ANZ's terms and conditions, which I could not read, because of my vision impairment what I had clearly mentioned to the officer earlier.

   Some 2 or 3 weeks later I learnt with horror, that ANZ's the so called “correspondent” bank in Poland deducted ,by proverbial stealth (that's without my knowledge) from the transmitted payment certain amount of money (to cover their own expanses and atop of $32 charged by ANZ at the very beginning), what in effect ruined the entire transaction (because the contract stipulated that agreed payment must be paid in full and on time ... ) ... So I had contacted ANZ's officer who ,,,. ·drafted the contract to tell him what happened. He the officer ,visibly confused ,grabbed immediately the booklet with ANZ's terms and conditions and started reading them while shaking his head in an apparent bewilderment. Then i (

   contacted ANZ to complain .A few days later ANZ responded with laughable offer of$ 50 in compensation.And as my demand to compensate me for the losses i suffered was rejected soi had contacted “ombudsman” (the banking one ) .... but sadly this supposedly independent referee backed up ANZ completely.Then I requested ANZ (and ombudsman too) to disclose CCTV footages to show that ANZ's officer encircled himself with his own pen amount to be deposited into beneficiary's account in Poland and on the second footage his confusion while reading ANZ's terms and conditions with which he himself was not familiar at the time he drafted the contact for me,customer with vision impairment ... But sadly ANZ responded by inform in g me that CCTV footages wi 11 not be presented ,because they were al ready destroyed ... despite the fact that such evidence must be kept for 6 months or so (and I did demand disclosure of CCTV footages immediately after this dispute emerged }.Then ANZ ,long time thereafter.induced (what looks to me like a duress) the banking officer T who drafted the contract to come up with his "recollections" of what happened when the contact was drafted ... and so he came up with his concocted chaotic and lacking sanity "recollections" .... so he reveals in a kind of delirium that he informed ·me about "multiple" conversion charges.whereas one only can be charged per single transaction ..... besides if he informed ne about any other charges (I mean the "backstabbing" unethlcal charges to be imposed by stealth by their "correspondent bank in Poland) I would go elsewhere .... for even ANZ's own$ 32 fee is one of the highest (competitors (charge for the similar size transaction about$ 10-15 .. .let alone another similar unexpected (unannounced, robbery '  ·,. type) fee sliced from what was to be paid to the beneficiary .... thus making ANZ the most expensive and dishonest bank on the stage .... CBA(Commonwealth Bank) which l contacted last year responded to me (as I did approach them for their opinion on this issue) saying in their letter that they present customer with clear upfront fee and no any other ones thereafter .... and ANZ prides itself under the slogan :'We are living in your world" ..... to end up ANZ to this very moment refuses to admit that they are at fault in what myself ,customer with vision impairment ,was not informed about their unethical described herein practice and presented me with their booklet with ANZ's terms and conditions,which I could not read (for obvious reasons) .... and I had stated clearly to the banking officer at the very begging of the transaction my vision impairment ... then ANZ destroyed incriminating them (the video footages would reval which side is telling the truth!!!!) CCTV footages ..... it seems to me that English system (which is in here )is full of injustice and double standards or hypocrisy for one tier of “justice” is for the rich and connected {celebrities and alike staff) and the other for the rest ... "courts" are inhumanly expensive ... besides if you got money you can hire snake charmer like “QC”... and they would tell you that everyone is "equal" before the law .... all people I discussed my case with said to me.that ANZ is at fault.but because they are big and powerful bully there will not be any justice .... and people told me.that even writing this letter is nothing but wastage of time .... perhaps .... please comment ..... regards PS ... ANZ offered to me .$1000 (which does not cover my loses ,as I spent on phone calls alone over the last 2 years aprox. $1000),which in itself says a lot for if they were not at fault in any way they would not offer to me a penny.let alone $1000 ....

2. The substance of the application concerns an alleged inadequate explanation by a bank officer of a charge to the applicant who alleges he has a visual impairment.  There is nothing in the content of the application that identifies any basis for a claim of contravention of the Disability Discrimination Act1992.  It is in those circumstances that the Court takes into account the amount involved in respect of the alleged charge of which the applicant asserts he was not properly informed.  The amount of that charge was $32.

3. This is not a case where there is any issue of substance involved in relation to an alleged contravention of the Disability Discrimination Act 1992.  There is no conduct identified, either directly or indirectly, in relation to the services offered by the respondent to the applicant.  It is in those circumstances that it is appropriate to take into account the fact that the law is not concerned with trifles: see Williams v The Queen (1978) 140 CLR 591 at 602 and Pinho v Andre [1994] VicSC 817 (20 December 1994), unreported.

4. Justice Smith cited the principle from Francis Bennion on statutory interpretation relevantly as follows:

   It is essential to the working of a legal system that it should adopt the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters). {Cro Eliz 353; Hob 88.} There are a number of reasons for this. Litigious persons and unnecessary litigation must be discouraged: bond judicis est lites dirimere (the good judge prevents litigation). {4 Co Inst 15.} Time must not be wasted. Costs must be kept down. The dignity of the law must be preserved.

   Parliament is presumed to have regard to all these matters, and by implication to intend that its enactments shall not apply in a de minimis case."

5. The Federal Circuit Court Rules2001 identify the object, relevantly, in r.1.03(4) as follows:

   (4)  To assist the Court, the parties must:

   *         avoid undue delay, expense and technicality

   *        consider options for primary dispute resolution as early as possible.

6. It is entirely consistent with the objects of the rules and the jurisdiction conferred on this Court in respect of the Disability Discrimination Act1992 that the principle identified by Justice Smith has application in circumstances where the proceedings involve no matter of substance and fail to disclose any reasonably arguable case of contravention of the Disability Discrimination Act 1992 and where the amount involved is trifling. This is a case where application of the principle identified by Justice Smith applies. Further on the face of the proceedings given the amount involved, the absence of any reasonable prospect of success and what appear to be oppressive demands by the applicant the proceedings are vexatious and an abuse of process within Rule 13.10 (c) of the Federal Circuit Court Rules. I have taken into account in this regard the principles in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 and I am clearly satisfied these proceedings are vexatious with no reasonable prospect of success. I also note that in modern litigation with pressure for the limited Court resources and a need to minimise cost and expense as well as efficient utilization of Court time, it is appropriate for Court’s to be pro-active in case management, Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at [57]. That pro-active approach is also consistent with the first duty upon a Court to be satisfied that the Court has jurisdiction, the King v Blakely Ex Parte Association of Architects & Ors of Australia (1950) 82 CLR 54 at 70; Residual Assoc Group v Spalvins (2000) 202 CLR 629 at [68]; Old UGC v IRC (20060 225 CLR 274 at [52]. Where after hearing from the applicant the Court is satisfied, as in this case, the jurisdiction that has been invoked is a vexatious proceeding and as such an abuse of process under r.13.10(c) it is appropriate for the Court to be pro-active in the prompt exercise of its ample powers to prevent an abuse of process.

7. It is particularly troubling in the proceedings that the applicant saw fit to disclose negotiations that had been advanced by the applicant. The applicant in the initiating process referred to an offer of $1000 that he had rejected. It is even more troubling that the claims for relief advanced by the applicant include a claim for $50,000. This is a patently vexatious and oppressive use of Court process. There was nothing in the initiating process that could possibly support this type of relief and it in an abuse of process to make excessive demands for relief particularly where the underlying proceedings have no reasonable prospect of success and where there is no matter of substance other than a trifle concerning $32. There is no reasonably arguable issue of breach of the Disability Discrimination Act1992 provisions as alleged in the initiating process. The applicant confirmed the triviality of the amount giving rise to the bringing of these proceedings and the kernel of the complaint being alleged inaccurate information as to that charge. Upon the Court raising concerns as to the potential appearance of an abuse of process with the applicant, nothing was said by the applicant to identify any arguable issue within the Court’s jurisdiction or as to why these proceedings were not vexatious. Court process should not be used in an oppressive manner for which meritless claims which are advanced to vex and annoy other parties with excessive demands for relief. I am satisfied that the proceedings are entirely without merit and that in this case the proceedings are in fact vexatious. The proceedings are summarily dismissed as an abuse of process under r.13.10(c).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 August 2015