Dowling v Commonwealth Bank of Australia

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 08 February 2008
• Neutral Citation: [2008] FCA 59

FEDERAL COURT OF AUSTRALIA

Dowling v Commonwealth Bank of Australia [2008] FCA 59

PRACTICE AND PROCEDURE – application for summary judgment –s 31A(2) Federal Court of Australia Act 1976 (Cth) – no claim identified – no factual foundation for a claim provided – no reasonable prospect of ever being able to identify a claim or factual foundation for a claim – no reasonable prospect of success

PRACTICE AND PROCEDURE – application s 31A(2) Federal Court of Australia Act 1976 (Cth) – whether hearsay affidavit evidence permitted

Federal Court of Australia Act 1976 (Cth)ss 22, 21 and 31A

Federal Court Rules O 20 r 5, O 11 r 16

Evidence Act 1995 (Cth) ss 69, 75, 170-172 and 183

Property Law Act 1974 (Qld)

Migration Litigation Reform Act 2005 (Cth)

Trade Practices Act 1974 (Cth) ss 86 and 52

Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401

Multi Modal Ltd –v- Polakow (1987) 78 ALR 553

ACCC –v- Billbusters Pty Ltd [2003] FCA 423

Warea Pty Ltd v Waterloo Industries Pty Ltd (1986) 12 FCR 152

Re Luck (2003) 203 ALR 1

Dai –v- Telstra Corp Ltd (2000) 171 ALR 348

Marketing Advisory Services (MAS) v Football Tasmania Ltd [2002] FCAFC 165

Egglishaw-v- Australian Crime Commission [2007] FCAFC 183

White Industries Aust Limited v Commissioner of Taxation (2007) 160 FCR 298

Swain v Hillman [2001] 1 All ER 91

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

ED & F Man Products Ltd v Patel [2003] EWCA Civ 742

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Dey v Victorian Railway Commissioners (1949) 78 CLR 62

General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720

Hocking v Bell (1947) 75 CLR 125

Salomon v A Salomon & Co Ltd [1897] AC 22

SUSAN DOWLING v COMMONWEALTH BANK OF AUSTRALIA

NTD17 OF 2007

REEVES J

8 FEBRUARY 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD17 OF 2007

BETWEEN:	SUSAN DOWLING Applicant
AND:	COMMONWEALTH BANK OF AUSTRALIA Respondent

JUDGE:	REEVES J
DATE OF ORDER:	8 February 2008
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1. Judgment be entered for the respondent against the applicant on the whole of the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2. The applicant pay the respondent’s costs of 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
NORTHERN TERRITORY DISTRICT REGISTRY	NTD17 OF 2007

BETWEEN:	SUSAN DOWLING Applicant
AND:	COMMONWEALTH BANK OF AUSTRALIA Respondent

JUDGE:	REEVES J
DATE:	8 february 2008
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1 From about 1995 to 2002 Ms Dowling was a customer of the Commonwealth Bank of Australia Limited (‘CBA’). During that period she borrowed approximately $750,000 from the CBA. She used this money to buy and develop one property and to develop a number of others. In due course she defaulted on some of her loan agreements and the CBA eventually forced the sale of two of her properties to repay the outstanding loans. During and since that process, Ms Dowling has pursued a number of grievances she has against the CBA in a range of different forums. These proceedings are the most recent step in that pursuit.

2 The CBA’s immediate response to these proceedings was to file this application for summary judgment. It has been made under section 31A (2) of the Federal Court of Australia Act 1976 (Cth) on the ground that Ms Dowling has no reasonable prospect of successfully prosecuting these proceedings. In the alternative the CBA has applied to have the proceedings dismissed under O 20 r 5 of the Federal Court Rules on the grounds that they are frivolous, vexatious, or an abuse of the process of the Court. In the further alternative the CBA has applied to strike out the whole of Ms Dowling’s statement of claim under O 11 r 16 of the Federal Court Rules on the grounds that it does not disclose a reasonable cause of action, or that it will cause prejudice, embarrassment or delay in the proceedings, or that it is otherwise an abuse of the process of the Court.

3 The critical issue in this application is whether any of Ms Dowling’s grievances amount to a valid claim at law that this Court can determine and, if so, whether Ms Dowling has any reasonable prospects of successfully prosecuting that claim in these proceedings.

MATERIALS RELIED UPON – INITIALLY AND SUBSEQUENTLY

4 At the hearing of this application Mr Farquhar, for the CBA, relied upon the amended notice of motion filed on 12 December 2007. The CBA’s original notice of motion filed 16 November 2007 was amended in accordance with the leave I gave on 11 December 2007 (see further below). Mr Farquhar also relied upon parts of the affidavit of Ms Meghann Louise Everett sworn on 16 November 2007. In response Ms Dowling, who appeared in person and represented herself, relied upon some thirty affidavits that she had filed since she first commenced these proceedings on 25 October 2007. Whilst all of these documents were entitled “affidavit”, many of them were not in fact written statements of evidence sworn on oath but instead chronologies, submissions, or requests directed to the Court or the CBA. To add to this avalanche of material, Ms Dowling appears to have filed at least seven further affidavits since I reserved my decision on 20 December 2007. I have not taken these affidavits into account in reaching this decision. I have attached to these reasons marked “Annexure A” a summary of the thirty affidavits Ms Dowling has relied upon. During the hearing of the application Mr Farquhar did not object to the contents of any of Ms Dowling’s affidavits. I presume he took this course in the interests of saving time and avoiding confusion.

5 The hearing of the CBA’s application proceeded over a part of each of three days: on 11, 17 and 20 December 2007. On the first day I gave Mr Farquhar leave to file and serve an amended notice of motion which relied upon section 31A(2) of the Federal Court of Australia Act as the CBA’s primary application and, in the alternative, relied upon O 20 r 5 and O 11 r 16 of the Federal Court Rules. This issue arose during submissions because the CBA’s original notice of motion filed on 16 November 2007 made no mention of section 31A of the Federal Court of Australia Act, nor O 11 r 16 of the Federal Court Rules, yet the CBA’s written submissions filed on 4 December 2007 relied upon both of these provisions. There is, of course, a significant difference in the nature and effect of an application under section 31A of the Federal Court of Australia Act on the one hand, and an application under O 20 r 5, or O 11 r 16, on the other. The former application strikes at the heart of the whole proceedings and, if successful, can only result in a judgment to the opposite party, whereas the latter type of application is usually directed to the way in which the case has been pleaded and more often than not, dealt with by allowing the offending party to file an amended pleading: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19] to [21] per French J.

6 In addition to procedural fairness considerations, Ms Dowling’s status as a self represented litigant, dictated that she should be told in the clearest possible terms the precise applications the CBA was making and the grounds of each application. Moreover, during the hearing of the application Ms Dowling claimed not to have any legal training or experience and claimed not to have been able to obtain any assistance from a legal practitioner in relation to her proceedings. Consistent with these claims, Ms Dowling presented as a person who did not have appear to have an understanding of the legal and factual issues involved in her proceedings and did not appear to have an understanding of the legal intricacies of evidence or the Court’s practice and procedures. To the extent possible, given Ms Dowling’s lack of legal training, experience and understanding mentioned above, I consider the CBA’s amended notice of motion filed and served on 12 December 2007 achieved the purpose of giving Ms Dowling the necessary notice referred to above.

7 On the first hearing day, as well as granting Mr Farquhar leave to file and serve an amended notice of motion and an adjournment to undertake those steps, I granted Ms Dowling an adjournment to allow her to file a further affidavit which annexed and explained a further document she said she wished to rely upon. Furthermore, Ms Dowling also said that in this further affidavit she would identify precisely what she was claiming against the CBA and what materials she intended to rely upon in support of those claims. Ms Dowling gave this indication after I told her during submissions on the first hearing day, among other things, that I was having considerable difficulty identifying exactly what it was she claimed the CBA had done to wrong her and how that amounted to a valid basis for a claim in this Court.

8 By the second hearing day on 17 December 2007, Ms Dowling had filed and served (although it emerged at the hearing she had not served all of them) not one, but four further affidavits. Each of these documents suffered from the same deficiencies as all the earlier ones in that none of them explained how the CBA had wronged Ms Dowling and how that amounted to a valid basis for a claim in this Court. During the second hearing day, in the hope that Ms Dowling may be able to explain orally what she had thus far failed to...