FEDERAL COURT OF AUSTRALIA

Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228

THE COURT ORDERS THAT:

1.    Summary judgment be given to the respondent in relation to the whole of the proceeding.

2.    The applicant pay the costs of the respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    On 9 August 2012, pursuant to programming orders made on 26 July 2012, the Commonwealth of Australia (the Department of Human Services) (the respondent) filed an interlocutory application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA). The application was made on the basis that the originating application filed by Mr Tommy George Ioannou (the applicant) has no reasonable prospect of success. Alternatively, pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules), the respondent seeks summary judgment on the basis that the applicant’s application:

(a)    has no reasonable prospect of success;

(b)    is vexatious or frivolous;

(c)    discloses no reasonable cause of action; and

(d)    is an abuse of process.

2    For the reasons that follow, the respondent’s interlocutory application for summary judgment against the applicant must succeed with costs.

THE APPARENT NATURE OF THE ORIGINATING APPLICATION

3    The nature of the applicant’s originating application is confusing, to say the least. The originating application filed on 12 March 2012 by the applicant, who is self-represented, is pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) and names the Commonwealth as the first and only respondent. Section 46PO of the AHRC Act relevantly provides:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE or 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint

…

4    Citing the Disability Discrimination Act 1992 (Cth) (the DD Act) in its entirety, the applicant seeks $100,000 to $1,000,000 in ‘compensation for harsh harassment, stress, injuries suffered’ as a result ‘persecution’ and ‘ill treatment’ by Centrelink after he made his original complaint to the Australian Human Rights Commission (the AHRC). He also claims that when his mother was hospitalised, $20,000 - $30,000 was ‘secretly transferred’ by Centrelink from their joint deeming account. He claims that Centrelink has ‘used every possible means to cause [him] stress [and] harm’ and that their conduct has made him ‘a cripple’.

5    In its helpful submissions filed in support of its summary judgment application, the respondent refers to the former complaint as the ‘victimisation allegation’ and the latter as the ‘transfer allegation’. For consistency and brevity, I will adopt the respondent’s terminology in these reasons.

6    Annexure A to the applicant’s affidavit accompanying the originating application, sworn and filed on 12 March 2012, sets out a Notice of Termination purportedly issued by the Delegate of the President of the AHRC on 28 February 2012 (the Purported Termination Notice). In the Purported Termination Notice, the matter number is ‘2029377FC’, the complainant is ‘Tommy George Ioannou’ and there are two named respondents, the ‘Commonwealth of Australia (Department of Human Services - Centrelink)’ and ‘Hellenic Community Aged Care’ respectively. (The second respondent appears to be unevenly copied and pasted into the Purported Termination Notice.)

7    Pursuant to s 46PH(1)(c) of the AHRC Act, the Delegate was satisfied that the applicant’s complaint lacked substance. Relevantly in her reasons, the Delegate stated that to support a claim of direct discrimination on the grounds of disability, a complainant should provide, or point to, information that shows they were treated less favourably than another person in the same or similar circumstances, on the grounds of disability. The Delegate noted that while there was a significant reduction in the balance of the joint deeming account that the applicant shared with his mother between 5 March 2010 and 5 August 2011, from $20,955 to $3.94, the applicant had not explained why Centrelink was responsible for that reduction or how the alleged misappropriation of funds could be less favourable treatment on the grounds of disability. In relation to the applicant’s allegation that his mother’s pension payments had not been made into the joint deeming account, the Delegate reasoned that it was not clear how Centrelink’s alleged failure to pay the mother’s pension into the joint account was less favourable treatment of the applicant on the grounds of his disability.

8    The Delegate noted that if the applicant’s mother was concerned about her pension payments, it was open for her to contact Centrelink directly or to nominate a third person to contact Centrelink on her behalf. In relation to the applicant’s allegation that Centrelink reduced his pension payment after becoming aware that the applicant had lodged a complaint with the Commission (the victimisation allegation), the Delegate noted that the Department denied that there was any change to his pension payment since September 2011, and that the applicant had provided no evidence that his payment had been reduced. The Delegate further noted that the bank statements provided by the applicant were for the period 9 August 2006 until 5 August 2011, and that Centrelink was notified of the applicant’s complaint on 15 November 2011. The Delegate also noted that the applicant was provided with a further opportunity to provide additional information to support his allegation of victimisation but nothing further was provided. The Delegate’s reasons do not make any reference to the second respondent that appears in the Purported Termination Notice, Hellenic Community Aged Care.

9    Before turning to the respondent’s summary judgment application, it is first necessary to give consideration to a preliminary matter. That is a request by the applicant for a further adjournment of this proceeding on medical grounds until December 2012. The applicant supports his application with a short medical certificate issued by his general practitioner. Notwithstanding the accepted authenticity of this medical certificate, for the reasons that follow, I am of the opinion that it is not in the interests of justice to grant the applicant a further adjournment until December or to otherwise amend the orders I made programming the respondent’s summary judgment application for determination on the papers.

PROCEDURAL HISTORY

10    It is necessary to set out the somewhat tortuous procedural history of this matter in some detail, as it sets the applicant’s latest adjournment application in context and demonstrates that he has already received multiple indulgences from both the Court and the respondent.

11    At the first directions hearing on 11 April 2012, I ordered that the applicant file and serve an amended application that set out the grounds of his claim and the particulars of the claim for damages by no later than 9 May 2012 and relisted the matter for directions a week thereafter.

12    On 7 May 2012, the applicant sought a three month adjournment of the proceeding ‘to give the Australian Federal Police time to investigate [his] allegations about Centrelink withdrawing money from [his] joint deeming account’. He claimed that it would take 90 days for the Australian Federal Police to complete their investigation.

13    On 14 May 2012, the respondent wrote to the Court, stating that it did not consent to the adjournment sought by the applicant because inter alia it was concerned about incurring further costs due to the applicant’s continuous correspondence. The respondent also drew attention to the Purported Termination Notice, which differed from the Original Termination Notice issued by the AHRC by the inclusion of Hellenic Community Aged Care as a second respondent to matter number 2029377FC. The respondent also drew attention to a ‘doctored’ version of a letter that it had sent to the applicant dated 1 May 2012, which the applicant included in a fax sent to the Court on 7 May 2012. The applicant’s version omitted the last paragraph of the original letter. The respondent also stated that it had advised the applicant that it was prepared to consider an adjournment of the proceeding on medical grounds, provided that he could show evidence to support his claim that he was required to attend a medical appointment on the day of the directions hearing and undergo a subsequent medical procedure.

14    On 16 May 2012, the directions hearing proceeded and I made programming orders giving the applicant a further week to file and serve an amended originating application setting out the grounds of his claim and the particulars of his claim for damages and adjourning the directions hearing to 6 June 2012.

15    On 30 May 2012, the applicant sought a six week adjournment of this proceeding on medical grounds. The applicant supported his application with a short medical certificate from his general practitioner dated 29 May 2012, stating that he was unable to attend hearings for six weeks.

16    On 1 June 2012, the respondent communicated to chambers that it would consent to the six week adjournment on medical grounds even though it had not been copied in to the applicant’s communication to the Court. On 1 June 2012, the Court wrote to the applicant reminding him again that all of his correspondence with the Court should be copied to the respondent’s solicitors and that it was not appropriate for him to telephone chambers to discuss substantive issues. His was also informed orally by my chambers numerous times – for example, on 1 May 2012 and 3 May 2012 – that all of his correspondence with the Court should be in writing and copied to the respondent’s solicitors. Nevertheless, the directions hearing listed for 6 June was adjourned for six weeks until 19 July 2012.

17    On 11 July 2012, the applicant wrote to chambers requesting a further adjournment of the proceeding until December 2012. This request was supported by a medical certificate issued by his general practitioner on 22 June 2012, certifying that he was ‘unfit for work and to attend court hearings until 1 December 2012’.

18    On 12 July 2012, I made orders from chambers programming the respondent’s foreshadowed summary judgment application for determination on the papers.

19    On 25 July 2012, the respondent wrote to the Court, copying the applicant, stating that while it did not formally oppose or consent to the applicant’s application to adjourn proceedings until December, it was concerned inter alia about the length of the proposed adjournment, the lack of detailed medical evidence in support of the adjournment application, the mounting costs that the respondent was incurring in the proceeding and the applicant’s conduct in prosecuting the proceeding. The respondent stated that it was not opposed to the applicant being afforded another six weeks to respond to any summary judgment application.

20    On 26 July 2012, programming orders were made from chambers giving the respondent until 9 August 2012 to file and serve its foreshadowed summary judgment application, along with supporting affidavits, and giving the applicant eight weeks thereafter to file any responsive submissions and affidavits.

21    On the same day, the parties were notified of the orders made from chambers. They were also informed that any further request for an extension of time by the applicant on medical grounds would need to be supported by appropriate affidavit evidence from a medical professional.

22    Notwithstanding this, on 1 August 2012, the applicant sent a nine-page facsimile to the chambers. It included inter alia:

    A copy of the medical certificate issued by his general practitioner on 22 June 2012.

    A poor quality photocopy of a medical report from the Perth Radiological Clinic which appears to be altered with a handwritten annotation. In the first page of the report there is a sentence that reads: ‘No evidence for anterior abdominal wall or groin hernia’. However, a handwritten ‘t’ appears between the words ‘No’ and ‘evidence’ so the sentence reads: ‘Notevidence (sic) for anterior abdominal wall or groin hernia’.

    A handwritten letter from the applicant addressed directly to me stating that he was seeking ‘mercy’ and ‘help’ from this Court.

    A photocopy of a handwritten District Court Appeal Notice dated 23 July 2012.

    A photocopy of what appears to be a letter from the District Court Principal Registrar to the applicant outlining the following matters:

o    requesting the applicant not to ask Court staff for legal advice;

o    stating that his abusive, threatening behaviour towards Court staff is unacceptable;

o    that his calls will only be taken by certain Court staff; and

o    that his initial hearing date is listed for Monday 3 December 2012 in accordance with the applicant’s medical certificate.

    A handwritten letter from the applicant, addressed to my associate, which includes the following: scandalous allegations about Centrelink and AHRC officials and the respondent’s solicitors; accusations that that Centrelink has cancelled his pension to deny him ‘justice in the Federal Court’ and also denied him ‘life supporting drugs’; that he is very ill, in great pain and requires an operation.

23    On 2 August 2012, the applicant sent a further 10 page facsimile to chambers. It contained inter alia the following documents:

    The same handwritten letter addressed to me as appeared in the 1 August facsimile.

    The same handwritten letter addressed to my associate as appeared in the 1 August facsimile.

    A photocopy of a letter purportedly dated 11 April 2012 addressed to the applicant from his former solicitor, with misaligned, mismatched text that appears to be copied and pasted in to the body of the letter.

    The same photocopy of the District Court Appeal Notice as appeared in the 1 August facsimile.

    The same photocopy of the letter from the District Court Principal Registrar.

    A photocopy of a letter purportedly sent by the Director of the Complaints Handling Section of the AHRC addressed to the applicant, which again appears to have uneven text copied and pasted in to the body of the letter. Essentially this letter appears to respond to the applicant’s complaint about the AHRC’s numerical referencing system of complaints, which the applicant alleges is a ‘conspiracy’ against him. It also asks the applicant to stop making repeat calls to various sections of the AHRC because it is not an efficient way for the AHRC to provide service to him.

    A photocopy of the Purported Termination Notice which appears in the applicant’s first affidavit, in which Hellenic Community Aged Care appears to be unevenly ‘copied and pasted’ in as a second respondent to the complaint.

24    Chambers received similar facsimiles from the applicant directly on 13 August 2012 (8 pages), 18 August 2012 (7 pages), 3 October 2012 (10 pages), 19 October 2012 (5 pages) and 22 October 2012 (7 pages). None of these documents were filed formally. In his facsimile dated 18 August 2012, the applicant enclosed an unreadable photocopy of a Westpac debit card purportedly issued to a Centrelink official to withdraw money from the joint deeming account the applicant shared with his mother and a photocopy of an unofficial Westpac bank statement from 30 March 2012 to 24 July 2012, which again appears to have uneven text copied and pasted into it. The applicant claims that this is ‘evidence’ of unauthorised withdrawals from the account. The 18 August 2012 facsimile also contains an odd-looking Centrelink document with various dates, handwritten annotations and medication labels photocopied on to it. The document states inter alia:

Customer requested review of decision regarding urgent payment being denied. I have reviewed decision, customer unable to provide script for medication required today 10/08/2012, has given me permission to contact his Doctor… Doctor has finished work for the day. Unable to grant urgent payment as evidence not sighted 10/08/12 for medication.

25    Presumably the applicant relies on this record in support of some kind of victimisation claim.

CONSIDERATION OF THE APPLICANT’S FURTHER ADJOURNMENT APPLICATION

26    The granting on an adjournment application is discretionary in nature. As can be seen from the procedural history canvassed above, the applicant has received multiple indulgences from both the Court and the respondent. I note a recent decision of the Court of Appeal of England and Wales, Tinkler v Elliott [2012] EWCA Civ 1289 in which Kay LJ, with whom Munby and Lewison LJJ agreed, in the context of an application by a self-represented litigant to set aside a default judgment, noted:

I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person…

Applicant’s apparent capability to read and respond to material filed by the respondent

27    In this proceeding, the applicant has demonstrated that he is abundantly capable of reading the respondent’s summary judgment application and supporting material and preparing responsive material. As noted above, the applicant has compiled and faxed significant amounts of handwritten material to chambers since producing his medical certificate. While the medical certificate issued by the applicant’s general practitioner states that the applicant is ‘unfit for work and to attend court hearings until 1 December 2012’, the programming orders do not require the applicant to attend Court. Even if the reference in the medical certificate as to the applicant’s unfitness to ‘attend court’ is understood to relate to his capacity to properly and effectively prosecute proceedings, an interpretation I can well appreciate, further delay will not solve the problem of the applicant’s deficient application. As Gilmour J noted in disallowing an adjournment application by a self-represented litigant in O’Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152 (at [9]): ‘there is a very real public interest in the timely disposition of matters before this Court, where the respondents… are also entitled to a timely resolution of the case.’

Applicant’s conduct and credit

28    The nature of the applicant’s conduct throughout the course of this proceeding is a further factor weighing heavily against granting a further adjournment. Section 37(M) FCA relevantly provides that the ‘overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law and (b) as quickly, inexpensively and efficiently as possible’. Section 37(N) FCA provides that the ‘parties to a civil proceeding before the Court must conduct the proceeding … in a way that is consistent with the overarching purpose’.

29    Even taking into account the fact that the applicant is self-represented, his conduct has been directly at odds with these provisions and falls well within the realm of vexatious conduct. As stated above, the applicant has been reminded on numerous occasions, both orally and in writing, that it is not appropriate for litigants to telephone chambers to discuss substantive issues and that all of his correspondence with the Court should be in writing and copied to the respondent. Notwithstanding these requests, the applicant has attempted to telephone my associate directly on over thirty (30) documented occasions and left numerous voicemail messages making scandalous allegations about the respondents, the respondent’s solicitors, registry staff and various government officials as well as threatening to report my associate to the Australian Federal Police. Not only does this conduct serve to undermine the impartiality of the Court (John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221) but it also stretches the Court’s limited resources when it is already under considerable pressure to resolve disputes of a seriously arguable nature.

30    The applicant’s written communications with chambers are equally unimpressive and contain duplicated, frequently irrelevant and scandalous material, as well as what appear to be inauthentic copies of correspondence previously sent to the applicant by this Court. For example, in the facsimile sent by the applicant on 23 July 2012, there is a copy of a letter purportedly sent by a Registrar of this Court on 18 July 2012, which explains to the applicant why particular affidavits he attempted to file with the registry were not accepted for filing and returned to him. My associate’s email signature appears to be copied and pasted at the bottom of the copy of the letter when it does not appear in the original letter. The crucial sentence ‘Accordingly the affidavits have not been accepted for filing and I return them to you’ also appears to be missing from the copy in the facsimile, when compared to the original letter on the Court correspondence file.

31    Another example of altered correspondence from the Court appears in the facsimile sent by the applicant on 13 August 2012. In this facsimile appears a letter purportedly addressed to the applicant from my associate, dated 26 July 2012, and copied to the respondent’s solicitors. The text again appears to be misaligned, with various sentences in the body of the letter copied and pasted from a series of letters that my chambers has sent the applicant this year. For example, the sentence ‘Please find attached additional information which relates to communications with the chambers of the Federal Court’ comes from the letter sent from chambers to the applicant and dated 1 June 2012. The sentence ‘Your written request for a further adjournment of this matter until December 2012’ comes from a letter sent to the applicant dated 25 July 2012. The phrases ‘I refer to the above matter’, ‘his Honour has made the following orders from chambers’, and ‘Any application for judgment’ all appear in a letter sent to the applicant on 12 July 2012.

32    The numerous odd looking photocopies of official documents with misaligned, mismatched text, replete with handwritten annotations and incomplete sentences, do not inspire confidence of authenticity and cast serious doubts, amongst other things, on the applicant’s bona fides.

MERITS OF THE RESPONDENT’S SUMMARY JUDGMENT APPLICATION

33    Even putting these matters to one side for the moment, the deficiencies in the applicant’s application are the strongest factor weighing against the granting of a further adjournment, particularly when the applicant has had multiple opportunities to correct them and failed to do so. The respondent should not be forced to continue to incur costs in responding to a deficient application brought by the applicant.

34    As I observed in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751, much has been written about the principles applying to summary judgment. As Hayne, Crennan, Kiefel and Bell JJ observed in Spencer v Commonwealth (2010) 241 CLR 118, the test of ‘no reasonable prospect of success’ in s 31A of the FCA Act lowers the bar for obtaining summary judgment. ‘No reasonable prospect’ does not mean ‘hopeless’ or ‘bound to fail’: Spencer (at [52]). Their Honours emphasised (at [60]) that ‘full weight must be given to the expression as a whole’. I also accept that exercising the power to dismiss an action summarily is not a decision to be taken lightly.

35    In support of its summary judgment application, the respondent relies on the following affidavits and evidence:

    affidavit of Ms Melissa Jane Lond, affirmed on 6 August 2012;

    affidavit of Ms Kirralee Jane Sanders, sworn on 8 August 2012; and

    the documents produced by Westpac in response to the Subpoena for production issued by the Court at the request of the respondent on 8 June 2012.

36    I accept the respondent’s submission that the applicant has not put on any evidence of unauthorised withdrawals from the joint deeming account that he shares with his mother. I also accept that the respondent’s evidence establishes that all of the withdrawals (except one made by the applicant’s brother) made from the joint deeming account were effected by debit cards issued to the applicant and not his mother, as he alleges. I therefore accept that that the applicant’s transfer allegation is baseless and without foundation.

37    The respondent submits that even if the transfer allegation were true, it does not establish that the applicant has been the subject of any unlawful discrimination by the Commonwealth on the grounds of disability. This submission is also correct and must be accepted. While any unauthorised withdrawals (if proven) could conceivably give rise to other causes of action against the Centrelink officer, such a state of affairs would not establish unlawful discrimination as defined in the DD Act. As stated above, the applicant’s originating application does not identify which provisions of the DD Act the Commonwealth is said to have breached.

38    The respondent correctly submits that the applicant has not provided any evidence for direct or indirect discrimination – that is, less favourable treatment either directly or indirectly, on the grounds of disability – beyond mere assertion. Even if the applicant’s claim is true that $20,000-$30,000 worth of unauthorised withdrawals were made from the joint deeming account, which the Westpac documents show not to be the case, that would not constitute direct or indirect discrimination as defined by s 5 and s 6 respectively of the DD Act.

39    The applicant has also failed to put on any evidence to establish:

    discrimination by the Commonwealth in relation to the provision of goods, services or facilities (per s 24 of the DD Act);

    discrimination by the Commonwealth in relation to the administration of a Commonwealth law or the conduct of a Commonwealth program (per s 29 of the DD Act); and

    vicarious liability on the part of a corporation or other employer of any person for the conduct of its directors, servants or agents (per s 123 of the DD Act).

40    I therefore find that even if the transfer allegation were true, it would not amount to unlawful discrimination under the DD Act. It follows that the transfer allegation has no reasonable prospect of success.

41    In relation to the victimisation allegation, I accept the respondent’s submission that it is not clear on the face of the originating application whether the applicant presses the victimisation allegation as in his original complaint to the AHRC. I also accept that the victimisation allegation has no reasonable prospect of success in light of the evidence that the applicant’s pension payments continued to be made to him after he complained to the AHRC. I accept the respondent’s evidence that the applicant did not have his pension payment reduced or his telephone and pension supplement terminated after he made his original complaint to the AHRC. I accept the respondent’s evidence that there were only two deductions to the applicant’s pension payments after he made the original complaint and those related to the repayment of two advance payments received by the applicant in accordance with s 1061A of the Social Security Act 1991 (Cth). Finally, I accept the respondent’s evidence that the applicant’s telephone allowance was not terminated as a result of his complaint; rather, it was renamed and included in another payment, the pension supplement, which occurred before the applicant made the original complaint.

42    I therefore find that the applicant has not suffered conduct amounting to a breach of s 42 of the DD Act which requires, inter alia, that a person be subjected to, or threatened to be subjected to, some form of detriment on the ground that the person has made or proposes to make, a complaint or proceedings under the DD Act or the AHRC Act.

43    That alone is enough to dispose of the applicant’s application by awarding summary judgment to the respondent. However, I also accept the respondent’s alternative contention that the proceedings constitute an abuse of the Court in that the claims will prejudice, embarrass or delay the fair trial of the proceeding and should be summarily dismissed pursuant to r 26.01 of the Rules. The respondent notes, and I accept, that, the applicant’s application contains allegations that are vague or imprecise such that the respondent cannot conduct a proper defence. In particular:

    it seeks compensation but provides no details of the compensation sought and the particulars of loss incurred;

    it specifies a (vast) range of compensation sought ($100,000 to $1,000,000) rather than a specific sum;

    it contains a number of irrelevant, unnecessary, and scandalous allegations against the respondent;

    it fails to identify any reasonable cause of action against the respondent;

    it fails to specific the sections of the DD Act which are relevant to the applicant’s claims;

    it fails to clearly set out whether the victimisation allegation, which formed part of his original complaint to the AHRC, is still pressed; and

    it contains a number of irrelevant and unnecessary facts which are confusing.

COSTS

44    Costs should follow the event in absence of evidence of any compelling circumstances to the contrary: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229. The fact that the applicant is self-represented does not displace the prima facie position: Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426 (at [12]-[13]). I accept the respondent’s submission that the applicant should not have filed his originating application on the basis that it has no reasonable prospect of success, discloses no reasonable cause of action, is frivolous or vexatious and constitutes an abuse of the Court.

45    I note that that the applicant was afforded multiple opportunities to file and serve an amended application setting out the grounds of his claim and the particulars of his claim for damages. I also note that the applicant was advised by the respondent’s solicitors on 1 May 2012 to rectify the deficiencies in his application and seek legal advice. The applicant was also advised in writing by the respondent’s solicitors on 11 May 2012 that his documents did not prove his allegations against the respondent and to reconsider his claim. This correspondence put the applicant on notice that litigation is an expensive exercise and that the respondent would consider seeking a costs order against him if it was successful in defending the matter. The applicant also failed to respond to a letter from the respondent’s solicitors dated 10 July 2012, asking the applicant to identify the alleged unauthorised withdrawals made during the relevant time period.

46    I accept the respondent’s submission that it has afforded the applicant a full and proper opportunity to amend his deficient application, put on relevant evidence to support his claims and narrow the issues in dispute. The applicant has failed to file an amended originating application or file any evidence to support his claims.

47    It is for these reasons that I exercise my discretion to award the respondent its costs pursuant to s 43(1) FCA.

CONCLUSION

48    For the reasons outlined above, the following orders are made:

1.    Summary judgment be given to the respondent in relation to the whole of the proceeding.

2.    The applicant pay the costs of the respondent, to be taxed if not agreed.

Associate:

Dated:    7 November 2012