FEDERAL COURT OF AUSTRALIA

Freeman v National Australia Bank Limited [2012] FCA 866

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file an application for leave to appeal against the decision in Freeman v National Australia Bank [2012] FCA 659 and the application for leave to appeal against the decision in Freeman v National Australia Bank [2012] FCA 659 are dismissed.

2.    The applicant pay the costs of the respondents on an indemnity basis, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    By orders of Spender J on 22 December 2005 in National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 the applicant before me, Mr Freeman, was prevented, without leave of the Court, from commencing in this Court any proceeding against the National Australia Bank Ltd (“NAB”) (the first respondent to the current proceedings) or his then trustees in bankruptcy (the second respondent to the current proceedings). On 23 March 2012 Logan J heard an application by Mr Freeman for the orders of Spender J to be rescinded and for leave to commence a proceeding against NAB and his now former trustees. Logan J dismissed that application with costs (Freeman v National Australia Bank [2012] FCA 659).

2    Before me now are two interlocutory applications brought by Mr Freeman in relation to that decision of Logan J. The applications are for an extension of time in which to seek leave to appeal from the decision of his Honour, and leave to appeal from that decision. Neither the applicant nor the respondents disputed the approach of hearing the applications together. Given that similar principles apply in considering such applications and the common substratum, it makes sense for this to occur, and indeed such an approach is contemplated by r 35.14 note 1 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules 2011”).

3    I note that before Logan J, and in respect of the two interlocutory applications before me, Mr Freeman was self-represented, whereas the respondents had legal representation.

Background

4    The history of litigation between the parties, until the end of 2005, was summarised by Spender J in National Australia Bank Limited v Freeman (a Bankrupt). Pertinently, his Honour explained as follows:

[3] This application is part of extensive saga of litigation between the Bank, Mr Freeman and the Trustees. The saga has its origins in a mediation between the Bank and Mr Freeman conducted before the late Mr R R Douglas QC (as he then was) in December 1997, at which Mr Freeman was represented by counsel and solicitors.

[4] As a result of the mediation, the Bank and Mr Freeman executed an agreement on 4 December 1997 (“the mediation agreement”). The mediation agreement led to the establishment by the Bank of a bill facility of $1,020,000 in favour of Mr Freeman which was due for repayment on 6 April 1998. By the mediation agreement, Mr Freeman agreed to use his best endeavours to refinance the Bank’s debt or to sell the property ‘Glassford Vale’ by 4 March 1998. Settlement of any sale or refinancing was to be effected by 6 April 1998. The mediation agreement contained a provision (Cl 9.1) under which Mr Freeman released the Bank from claims which he had or might have had against the Bank in respect of a wide range of matters.

[5] Mr Freeman was unable to refinance the Bank’s debt, or sell ‘Glassford Vale’. On 14 May 1998 the Bank commenced proceedings (No 4013 of 1998) in the Queensland Supreme Court for possession of ‘Glassford Vale’ (which had been mortgaged to the Bank), and for moneys owing under the expired bill facility.

[6] The proceedings were heard before Ambrose J over a period of four days in September 2000, when Mr Freeman was represented by counsel. On 11 October 2000 Ambrose J gave judgment for the Bank for possession of ‘Glassford Vale’, and for the sum of $1,427,890.08 and indemnity costs. His Honour:

• rejected Mr Freeman’s case that he was mentally incompetent when the mediation agreement was concluded;

• found that the release was effective to release the Bank from all of the claims made by Mr Freeman in his counter claim; and

• held that in any event Mr Freeman had no real prospect of success in establishing those claims.

[7] On 2 November 2001 Mr Freeman unsuccessfully appealed to the Court of Appeal from the decision of Ambrose J (No 9718 of 2000). In the reasons for judgment of White J, [2001] QCA 473 her Honour concluded:

‘There is no substance in any of the grounds of appeal raised by the appellant in the extensive written submissions or in his oral submissions.’

[8] On 14 March 2003 the High Court refused special leave to appeal from the decision of the Court of Appeal. One of the matters relied upon in argument by counsel for Mr Freeman at the special leave application was an alleged failure on the part of the Bank to give proper discovery, a matter which had not been raised in the Court of Appeal. Special leave to appeal was refused by the High Court because no arguable error had been demonstrated in the courts below.

[9] On 11 March 2002 Mr Freeman commenced proceedings against the Bank in the Supreme Court of Queensland (No 2339 of 2002) seeking damages for the sale of his property ‘Glassford Vale’ at an alleged undervalue. The property had been sold by Receivers appointed by the Bank in July 2001, hence one of the issues in the proceedings was whether the Bank was responsible for any default on the part of the Receivers who were deemed by the mortgage documents to be the agents of the Bank.

[10] The first proceedings in the Federal Court began on 18 January 2001 when the Bank issued a Creditor’s Petition against Mr Freeman based upon the failure of Mr Freeman to comply with a warrant of execution issued by the Supreme Court on 31 October 2000. In dismissing a notice of motion filed by Mr Freeman seeking further discovery from the Bank, I noted:

‘In this case, Mr Freeman is seeking to re-litigate the question of whether he owes a debt to the National Australia Bank.’

[11] On 12 March 2002 I made a sequestration order in relation to Mr Freeman’s estate on the application of the Bank. I held that a prima facie case of fraud, or collusion, or miscarriage of justice had not been made out, so as to impeach the judgment of Ambrose J. I also found that any claim by Mr Freeman asserting a sale of the mortgaged property at an undervalue was a claim against the Receivers, and not against the Bank. On 9 April 2002 I stayed the sequestration order pending an appeal to the Full Court.

[12] On 7 May 2002 Muir J dismissed an application by the Bank for summary dismissal of proceedings No 2339 of 2002, upon the basis that there was a triable issue as to whether the Bank had intermeddled in the Receivers’ sale so as to render it liable for any default on the part of the Receivers.

[13] On 26 August 2003 the Full Court of the Federal Court (French, Cooper, R D Nicholson JJ) dismissed Mr Freeman’s appeal from the making of the sequestration order. Mr Freeman unsuccessfully sought to adduce further evidence before the Full Court, which the Court declined to receive because it could have been placed before the Court when the sequestration order was made.

[14] On 27 August 2003 Mr Freeman commenced further proceedings in the Queensland Supreme Court under Rule 668 of the Uniform Civil Procedure Rules 1999 (Qld) seeking orders setting aside the judgment in action SC4013 of 1998 on the basis of fresh evidence. The application was heard and dismissed by de Jersey CJ on 15 October 2003 on the ground that Mr Freeman did not have standing to pursue the application in view of his bankruptcy.

[15] On 14 October 2003, the Trustees elected not to adopt Mr Freeman’s proceedings against the Bank. On 31 October 2003, Mr Freeman filed a motion seeking to compel the Trustees to commence actions against the Bank. I declined to make any orders on the motion. I then noted:

‘While this court has, on the present motions, been subjected to a considerable volume of material, most of it is directed at issues which are not central to the applications which Mr Freeman wishes the court to consider today or the orders he wishes the court to make. Much of the material seeks to re-canvass the question of whether the judgment of Ambrose J was correct, and whether the consequential proceedings in the Court of Appeal, in the High Court, the making of a sequestration order, and the unsuccessful appeal from the making of that order are consequently tainted.’

[16] Mr Freeman appealed to the Full Federal Court, who dismissed his appeal on 1 December 2004. Their Honours (Lee, Merkel and Hely JJ) noted:

‘The appellant [Mr Freeman] placed a large volume of material before us which was primarily directed towards establishing that the decision of Ambrose J was wrong, ... there was little focus on the issues...’

[17] On 6 February 2004 Dowsett J rejected an application made by Mr Freeman under s 153B of the Act to annul the sequestration order of 12 March 2002. An appeal to the Full Federal Court was stayed on 7 May 2004, pending the payment by Mr Freeman of $5000 as security for the Bank’s costs. In my reasons in staying the appeal pending the provision of security, I said:

‘In my judgment there is no question of legal principle involved in the appeal from the judgment of Dowsett J.

...

As the submissions by Mr Freeman on his own behalf ... confirm, what he is seeking to do is to demonstrate what he has been unsuccessful in demonstrating thus far in many proceedings, namely that decisions in favour of the National Australia Bank from the time of the first trial before Ambrose J and in successive proceedings, have been erroneously determined in favour of the bank and adversely to Mr Freeman.’

[18] An application for leave to appeal the security for costs order was dismissed by Tamberlin J on 7 July 2005.

[19] On 11 March 2005, Mr Freeman filed an application seeking an order that the Trustees assign to him two actions commenced by him in the Supreme Court prior to his bankruptcy. The application was dismissed by Tamberlin J on 6 May 2005. A subsequent appeal to the Full Federal Court (Spender, Kiefel, Dowsett JJ) was dismissed on 8 August 2005.

[20] As noted above, this application seeking orders pursuant to O 21 r 2 that Mr Freeman be declared vexatious and be required to obtain the Court’s leave before commencing any further proceedings was filed on 3 June 2005, after the dismissal of Mr Freeman’s application by Tamberlin J on 6 May 2005, and before the dismissal of Mr Freeman’s appeal by the Full Court on 8 August 2005.

5    As I have already observed, NAB and Mr Freeman’s trustees in bankruptcy sought – and obtained – orders from Spender J in this court wherein, in effect, Mr Freeman was declared a vexatious litigant as against NAB and the trustees, requiring leave of the Court to commence legal proceedings against them. It is not controversial that the regime in the Federal Court Rules pursuant to which Spender J made relevant orders in 2005 has continued in operation in Pt 6 Div 6.1 of the Federal Court Rules 2011.

Relevant principles

6    First, it is clear that an order of this Court declaring a litigant to be vexatious and restraining the litigant from instituting further proceedings is an interlocutory decision rather than a final decision: Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 at [86]-[107]. It follows that dismissal of an application to rescind such an order is similarly an interlocutory decision. Indeed, it is not in dispute that the decision of Logan J to dismiss Mr Freeman’s applications for rescission of the orders of Spender J and to commence proceedings against NAB and the trustees was an interlocutory decision. Accordingly, it follows that leave of the Court is required before Mr Freeman can appeal the orders of Logan J: s 24(1A) Federal Court of Australia Act 1976 (Cth) (“the Act”).

7    Second, the decision of Logan J was delivered on 23 March 2012. Mr Freeman’s interlocutory applications for an extension of time to file a notice of appeal and for leave to appeal were filed on 20 April 2012 – clearly more than 14 days from the decision of his Honour (cf r 35.13 and r 35.14 Federal Court Rules 2011).

8    Third, there is considerable overlap in principles applicable to consideration of an application for an extension of time in which to file an application for leave to appeal, and consideration of an application for leave to appeal. In respect of both types of application a key consideration in determining whether to grant the orders sought is whether the proposed grounds of appeal have merit.

9    In relation to the issue of merit, as Rares J recently observed in Croker v Minister for the Department of Finance and Deregulation [2011] FCA 1418 at [4] in respect of applications for extensions of time pursuant to r 36.05 of the Federal Court Rules 2011:

An application for an extension of time in which to bring an appeal is governed by the considerations identified by in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540-541 [66(4)] per Kirby J, who approved what Lord Denning MR said in Reg v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

10    In addition to stating briefly, but specifically, the facts on which the application relies (r 35.14(3)(c)(i)) it is incumbent on the applicant for an extension of time in which to file an application for leave to appeal to explain why the application for leave to appeal was not filed within time (r 35.14(3)(c)(ii)).

11    During the hearing on Tuesday I informed the parties that I was satisfied that there was a reasonable explanation why the application for leave to appeal was not filed within time by Mr Freeman. In particular:

    The decision of his Honour, whilst delivered on 23 March 2012, was ex tempore. Written reasons were not provided to the parties until after fourteen days from delivery of judgment had passed.

    Mr Freeman is a self-represented litigant. I am satisfied that Mr Freeman’s ability to properly formulate proper grounds of appeal would be, to some extent, prejudiced by the absence of written reasons for judgment.

12    Further, in relation to applications for leave to appeal the Full Court recently observed in Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 at [26]:

In this court, it is well established that the relevant test (or “litmus test”) for whether leave to appeal from an interlocutory judgment will be granted, comprises the following two integers:

(1) whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2) whether substantial injustice would result if leave were refused supposing the decision to be wrong.

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; 104 ALR 621 at 622–4; 23 IPR 1 at 3–5 (Décor).

Consideration

13    In considering both interlocutory applications together, it is useful to commence by:

    having regard to the decision of his Honour; and

    having regard to the grounds of appeal proposed by Mr Freeman.

Decision of his Honour

14    A copy of the transcript of the proceedings before his Honour in QUD 106/2012 on 23 March 2012 was annexed to the affidavit of Mr Philip Pan sworn 4 July 2012. From perusal of this transcript, in my view the following is clear:

    His Honour endeavoured to facilitate the filing of material by Mr Freeman, including the amended outline prepared by Mr Freeman (TS p 5 ll 40-44).

    His Honour explained to Mr Freeman that Mr Freeman needed to persuade the Court that his application was not an attempt to relitigate matters which had been determined against Mr Freeman in the past (TS p 7 ll 7-8).

    His Honour allowed Mr Freeman the opportunity to voice his concerns in relation to:

    the alleged corporate culture of NAB and issues relating to his account with NAB (TS p 6 ll 12-45);

    alleged falsification of interest in customers’ accounts by NAB (TS p 7 ll 40-42);

    events from 25 August 2005 involving alleged refunds made by NAB to customers (TS p 8 ll 12-16, 35-45);

    the judgment of the Queensland Court of Appeal in Freeman v National Australia Bank [2006] QCA 329 (TS p 8 l 20);

    the amount of money Mr Freeman claimed was refundable by NAB to him (TS p 9 ll 8-12);

    the quantum of debt which Mr Freeman claimed ought to have been owing by him to NAB (TS p 9 ll 16-28); and

    the inappropriate charging of interest by NAB (TS p 9 ll 25-26).

    His Honour sought to make Mr Freeman focus on a key document containing a “magic bullet” which would justify his Honour in granting leave (TS p 7 ll 26-28).

15    His Honour’s decision is relatively brief, concluding in orders dismissing Mr Freeman’s application and ordering that he pay the costs of each respondent on an indemnity basis, to be taxed if not agreed. After introductory comments and reciting the orders of Spender J in respect of the parties in 2005, his Honour said:

[6] Both the bank and the trustees in bankruptcy oppose that application for leave. They seek, pursuant to r 5.08 of the Federal Court Rules 2011 (Cth), that the application be heard and determined at the directions hearing. It is convenient to do that. The bank’s submission, which is adopted by the bankruptcy trustees, is that an analysis of the material upon which Mr Freeman relies, in other words, his affidavit filed on 17 February 2012, discloses the following issues as the basis upon which he maintains that the orders for a grant of leave should be granted:

(a) there is fresh evidence;

(b) there was no debt at the time of bankruptcy;

(c) all judgments are based on incorrect evidence;

(d) the bank has admitted a corporate culture of maximising profits and not providing and controlling information to other parties;

(e) the bank did not discover documents;

(f) the bank discovered documents advantageous to the bank but disadvantaged the others;

(g) the bank issued incorrect documents, including bank statements; and

(h) the bank’s representatives gave incorrect information that all judgments in the federal jurisdiction are unjust on the grounds of discovered new evidence, material nondisclosure of new evidence, and are fraudulent.

[7] Regard to the statement of claim, as well as Mr Freeman’s affidavit, discloses that there is substance in each of the bases apprehended by the bank upon which Mr Freeman seeks a grant of leave. Each of those is a feature of the affidavit, as is underscored as well by the way in which that material is developed in the outline Mr Freeman has lodged.

[8] It is not my purpose today to recite again the history of disputation as between the bank and Mr Freeman. That has been amply done by Spender J in his reasons for judgment. Further, today is not a hearing of whether or not, in relation to the bank and the bankruptcy trustees, Mr Freeman is to be regarded as vexatious, having regard to the principles set out in cases such as Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 and Kowlaski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153. He already has that status in relation to those parties. Rather, the question for today is whether, notwithstanding his possession of that status, there is anything warranting a grant of leave.

In the course of his oral submissions supplementing the written submissions, Mr Freeman was asked by me to identify with precision a particular feature of his affidavit which was new. He drew my attention, by way of response, to an announcement made by the National Australia Bank in July 2005 in respect of a refunding of what the bank acknowledged to be incorrectly debited bank accounts debit tax to particular accounts.

[9] That particular body of evidence seems to have been the subject of agitation at the time when Spender J made his determination. I can see nothing in the evidence today which would warrant a grant of leave more particularly, nothing which would support even an arguable case that any prior judgment was obtained by fraud. The application is dismissed.

Grounds of appeal

16    The basis upon which Mr Freeman seeks to appeal his Honour’s decision is somewhat unclear. Nonetheless from his amended outline of submissions filed on 18 July 2012 and his oral submissions in Court on Tuesday, I understand that his proposed grounds of appeal are, in substance, as follows:

1.    The original judgment obtained against him by NAB was fraudulent.

2.    His Honour failed to have regard to the discovery of new evidence and fraud in relation to, inter alia:

(a)    public admissions by NAB concerning its corporate culture in November 2005;

(b)    public admissions by NAB concerning unlawfully charged interest and fees since 26 September 2006;

(c)    the finding in Freeman v National Australia Bank Ltd [2006] QCA 329 of the account value of $770,000 on 1 September 2006 and interest paid at the time; and

(d)    the inaccuracies of the bankruptcy trustees, resulting in an incorrect judgment debt.

3.    His Honour failed to have regard to the principles in Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234.

17    I note that the decision of the Full Court in Monroe Schneider involved consideration by the Full Court of principles pertaining to the setting aside of a decision of a Court because of, inter alia, the discovery of fresh evidence. At 238 their Honours observed that the relevant principle was as follows:

In Commonwealth Bank v Quade (1991) 65 ALJR 674 at 676, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, referred to these authorities as establishing that:

“the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict”.

Their Honours described this as a “stringent rule”.

18    The Full Court in Monroe Schneider also referred to the decision of the House of Lords in Owens Bank Ltd v Bracco [1992] 2 AC 443 at 483.

Submissions of the respondents

19    Both NAB and the former trustees in bankruptcy of Mr Freeman opposed the interlocutory applications before me. In particular, NAB opposed both applications on the basis that they were without any basis and entirely unmeritorious because:

    Mr Freeman is attempting to re-agitate and re-ventilate issues in relation to the original judgment debt against him that were considered in detail in numerous court cases.

    Many of the pieces of “new evidence” allegedly discovered by Mr Freeman since the trial in 2000 have no identifiable characterisation or relevance.

    Mr Freeman is raising the same scandalous and unfounded allegations against NAB as he has raised previously, namely claimed false and illegal accounting, withholding documents from discovery and giving false evidence.

Findings

20    In my view the interlocutory applications ought be dismissed. I form this view for the following reasons.

21    First, I am not satisfied that Mr Freeman’s grounds of appeal represent anything other than an attempt to reagitate issues determined many years ago in the course of numerous hearings, both in this Court and in the State Courts. Mr Freeman claims that he has “new evidence” warranting revisit of the decision of Spender J to declare him a vexatious litigant, however:

    Mr Freeman’s evidence is vague and of uncertain provenance;

    this “evidence” seems to constitute general allegations and bits and pieces of publicly available information scraped together in an endeavour to present a case of substance, rather than properly supported factual material;

    some of Mr Freeman’s allegations are scandalous; and

    importantly – on the case put by Mr Freeman I am not persuaded that such material as that to which he directed my attention would have produced an “opposite verdict” in respect of either the original debt he claims was fraudulent, or the decision of Spender J. Accordingly, to that extent I am not persuaded that Mr Freeman is assisted by the decision of the Full Court in Monroe Schneider.

22    Second, I am not persuaded that his Honour failed to have regard to the issues upon which Mr Freeman relied in the application on 23 March 2012. Although his Honour’s judgment is not lengthy, nonetheless it is clear that:

    his Honour gave Mr Freeman a fair opportunity to present his case, including permitting Mr Freeman to ventilate concerns regarding matters of some considerable history; and

    in the judgment at [6] his Honour listed the matters to which his Honour had regard, and upon which Mr Freeman relied, notwithstanding Mr Freeman’s claim that his Honour did not have regard to those matters.

23    I am not satisfied that Mr Freeman’s grounds of appeal against the decision of his Honour have any prospect of success. I am not satisfied that his Honour’s decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court.

24    Finally, I am not satisfied that his Honour erred in ordering Mr Freeman to pay the respondents’ costs on an indemnity basis. The Court has a broad discretion pursuant to s 43 of the Act to award costs in proceedings, and costs on an indemnity basis may properly be awarded where there is some special or unusual feature in the case justifying the Court exercising its discretion in that way: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233. In this proceeding Logan J clearly considered that the application before him was without merit and, as was also clear on the face of the transcript, warranted an order for indemnity costs. As explained by the High Court in House v R (1936) 55 CLR 499 at 504-505 it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course – rather it must appear that some error has been made in exercising the discretion. In this case no error in exercising his Honour’s discretion as to the award of costs has been substantiated.

Costs

25    The respondents also seek indemnity costs in relation to the two interlocutory applications before me. While I do not consider that Mr Freeman has acted in bad faith in respect of these proceedings, nonetheless:

    he is the subject of an order proscribing him from commencing or continuing a proceeding against NAB or his former trustees in bankruptcy without the leave of the Court;

    I am of the view that there is no merit in respect of these interlocutory applications;

    Mr Freeman’s claims include scandalous allegations against the respondents; and

    importantly – the respondents have no interest in these proceedings, which were finally determined many years ago. To that extent they are prejudiced by Mr Freeman seeking to reagitate issues long settled.

26    In my view the respondents are entitled to the award of costs on an indemnity basis.

Associate:

Dated:    16 August 2012