Dennis v Commonwealth Bank of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 16 December 2019
• Neutral Citation: [2019] FCAFC 231
• Date: 16 December 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Dennis v Commonwealth Bank of Australia [2019] FCAFC 231

Appeal from:	Dennis v Commonwealth Bank of Australia [2018] FCCA 1159
File number:	QUD 318 of 2018
Judges:	GREENWOOD, BESANKO AND REEVES JJ
Date of judgment:	16 December 2019
Catchwords:	ADMINISTRATIVE LAW — appeal by leave from orders made by the Federal Circuit Court of Australia — where the respondent made an application for summary dismissal of the appellant’s claim — where the primary judge made orders dismissing the appellant’s application on the basis that the claim had no reasonable prospect of success — apprehended bias — whether a fair-minded lay observer might reasonably apprehend that the primary judge might not have brought an impartial and unprejudiced mind to the application — consideration of the difference between prejudgment and predisposition — whether it is necessary to consider the other grounds of appeal dealing with the merits
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 13.10 National Consumer Credit Protection Act 2009 (Cth) ss 47, 125, 128, 129, 130, 131, 160D, 178
Cases cited:	Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 Dennis v Commonwealth Bank of Australia [2018] FCA 1908 Dennis v Minister of Finance [2017] FCCA 45 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337 Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 371 ALR 426 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Date of hearing:	15 May 2019
Date of last submissions:	9 August 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	51
Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Mr M Alexander
Solicitor for the Respondent:	Gadens Lawyers

ORDERS

		QUD 318 of 2018
BETWEEN:	SUSAN KAY DENNIS Appellant
AND:	COMMONWEALTH BANK OF AUSTRALIA Respondent

JUDGES:	GREENWOOD, BESANKO AND Reeves JJ
DATE OF ORDER:	16 December 2019

THE COURT ORDERS THAT:

1. The appeal be allowed and the orders made by the Federal Circuit Court of Australia on 27 April 2018 be set aside.

2. The respondent’s application for summary dismissal be remitted to the Federal Circuit Court of Australia constituted by a different judge for rehearing.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This is an appeal by leave from orders made by the Federal Circuit Court of Australia.

2. On 19 January 2018, the appellant instituted a proceeding in the Federal Circuit Court against the Commonwealth Bank of Australia. The first return date for the appellant’s application was 12 March 2018. Shortly prior to that date, the respondent indicated to the appellant, who at all times has appeared in person, that it intended to bring an application for the summary dismissal of her claim. On 12 March 2018, the Court discussed various procedural issues with the parties and fixed 27 April 2018 for the hearing of the respondent’s application for the summary dismissal of the appellant’s claim.

3. On 27 April 2018, the respondent’s application for summary dismissal came on for hearing. The appellant appeared in person and the respondent appeared by counsel. After hearing submissions, the primary judge delivered reasons and made orders dismissing the appellant’s application filed on 19 January 2018 pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Dennis v Commonwealth Bank of Australia [2018] FCCA 1159). The basis of the primary judge’s order was his conclusion that the appellant’s claim had no reasonable prospect of success. The primary judge also made an order that the appellant pay the respondent’s costs.

4. On 11 May 2018, the appellant sought leave to appeal from the orders of the Federal Circuit Court.

5. On 30 November 2018, a judge of this Court granted leave to appeal against the orders made by the Federal Circuit Court. The judge delivered reasons for his decision (Dennis v Commonwealth Bank of Australia [2018] FCA 1908). In summary, the judge considered that there was an arguable case of apprehended bias and he granted leave to appeal. His Honour identified arguments which were relevant to the merits of the appellant’s claim under the National Consumer Credit Protection Act 2009 (Cth) (the NCCP Act), but did not express an opinion on those merits. He did not consider that he should do so and, in that respect, he relied on observations made by the High Court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 (Concrete Pty Ltd) at [2] per Gummow ACJ; at [172] per Callinan J; at [117] per Kirby and Crennan JJ. In forming his opinion that there was an arguable case of apprehended bias, the judge had regard to a transcript of the hearing before the primary judge on 27 April 2018. He also listened to an audio recording of the hearing because of a contention made by the appellant that the transcript did not capture the tone and volume of the primary judge’s voice.

6. On 19 December 2018, the appellant filed a Notice of Appeal which contains seven grounds of appeal.

7. Each party to the appeal filed an outline of submissions in support of their respective cases. The appellant did not appear at the hearing of the appeal. She asked the Court to take into account her submissions and affidavits. The respondent appeared by counsel at the hearing and made submissions in support of the respondent’s contention that the appeal should be dismissed. We have considered the submissions and other material. We have also listened to the audio recording of the hearing on 27 April 2018.

The Appellant’s Substantive Claim

8. The appellant filed a number of affidavits in support of her claim and, as far as we can see, the respondent filed one affidavit in opposition to the appellant’s claim.

9. The judge who heard the application for leave to appeal found it useful in order to identify the background to the appellant’s claim to quote from passages in a previous judgment of the Federal Circuit Court. That is a convenient course. The judgment is Dennis v Minister of Finance [2017] FCCA 45 in which the Federal Circuit Court judge said (at [11], [12], [14]‑[16]):

11. Ms Dennis lives alone with a number of companion animals in a rural setting to the south of Brisbane. Her companion animals (two dogs and three horses) are her family. As she points out, she had and continues to have a legal obligation, as well as a moral obligation, to provide for their care.

12. On 9 October, 2015 Ms Dennis’ companion dog, an English Setter named Hobson, was diagnosed with hemangiosarcoma. Although Hobson had been unwell for other reasons for some time, he was responding well to his treatment and the care that Ms Dennis was providing for him. However, the diagnosis of hemangiosarcoma was both unexpected and serious. According to Ms Dennis and the veterinary advice that she obtained, Hobson could not be left alone and required her constant care and...