FEDERAL COURT OF AUSTRALIA

McLean v Westpac Banking Corporation [2013] FCA 126

THE COURT ORDERS THAT:

1.    The applicant’s originating application filed on 25 October 2012 is dismissed.

2.    The applicant’s interlocutory application filed on 17 December 2012 is dismissed.

3.    The applicant is to pay the costs of the application including costs of the respondents’ interlocutory application filed on 26 November 2012, 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    The applicant seeks relief against the first respondent (Westpac) and several of its officers in relation to a variety of suggested contraventions. The applicant has defaulted on loans she took out with Westpac in 2007. The loans were secured by three residential properties she then owned. The issues ventilated in the applicant’s pleading have been the subject of consideration in previous proceedings or should have been raised in such proceedings.

2    The first, second, third and fourth respondents apply by interlocutory application dated 26 November 2012 for summary judgment against the applicant or, alternatively, the striking out of her statement of claim in full on the basis that her application has no reasonable prospects of success. The fifth respondent also filed a notice of address for service and an affidavit objecting to the statement of claim in full, complaining that it is confusing and ambiguous and supporting the application by the first, second, third and fourth respondents to whom I will refer to as the respondents.

3    It is unnecessary to repeat the statement of claim in its entirety. The first two pages are illustrative of its tenor and are set out in para 11 below.

4    The applicant also sought additional interlocutory relief against the respondents which, in light of my conclusion in favour of the respondents’ arguments, no longer requires consideration. The application must be dismissed.

A MCKENZIE FRIEND

5    The applicant renewed an earlier application for a Mr Ahmed Abouabdillah to have leave to appear on the applicant’s behalf as a McKenzie Friend. I declined such an application at an earlier directions hearing simply because it was unnecessary to do so in order to deal with the business of the day which involved listing and programming this motion and the applicant’s motions. The respondents opposed Mr Abouabdillah appearing as a McKenzie Friend on their motion for summary judgment.

6    It is significant that it was established at the earlier directions hearing that Mr Abouabdillah had drawn the applicant’s statement of claim as to which see, for example, para 11 below.

7    In Smith v R (1985) 159 CLR 532, Gibbs CJ said (at 534):

The question whether an accused person should be allowed to have a “McKenzie friend” present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a “McKenzie friend” should always be refused. All the circumstances of the case must be considered in deciding upon the application.

8    As noted in Schagen v R (1993) 8 WAR 410 (at 412) per Malcolm CJ with whom Franklyn and Walsh JJ agreed:

In my opinion, it is within the inherent jurisdiction of the court to determine to what extent a “McKenzie friend” may take part in the proceedings. It would be a rare and exceptional case, however, in which a person other than a duly qualified legal practitioner would be permitted to address the court or otherwise take an active part in the proceedings. The court was prepared to go further in the present case because the court reporting service had found the appellant virtually incomprehensible and this difficulty of understanding was compounded because he also had a severe hearing problem.

9    A McKenzie Friend may be potentially undisciplined and disruptive, someone undermining the judge's full control over the proceedings, and in many cases making it almost impossible for the trial judge to ensure a fair trial. As Street CJ noted in R v EJ Smith [1982] 2 NSWLR 608 (at 614):

To permit indirect participation in the trial process by a person to whom the court has no direct access in a disciplinary and controlling sense — a person who may well, for one reason or another, be concerned to promote the case of the person he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge — is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State.

10    Notwithstanding that it is a most unusual course to take, on the clear understanding that the extent to which Mr Abouabdillah would be entitled to assist as a McKenzie Friend was to sit quietly and make suggestions and provide support to the applicant at the bar table, I permitted him to appear in that capacity. It was evident on the papers filed prior to the interlocutory hearing including, in particular, the statement of claim which Mr Abouabdillah himself had drawn that there were such limited prospects of success of the primary application that Mr Abouabdillah and the applicant should be afforded some latitude in order to ascertain whether there was any arguable claim.

11    In order to illustrate the applicant’s prospects, it is necessary only to recite the first two pages of the statement of claim. They are as follows (with the applicant’s formatting and emphasis):

1.    We Shona Dimity: of family McLean, with the Grace of God we are a living breathing soul force of woman, whereas we are one of the people of Australia with the Blessing of Almighty God in this court of record, whereby all right of action in relation to this matter, and certify to the Court that, in relation to the statement of claim filed by the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.

2.    Oliver Wendell Holmes once wrote, "I long have said there is no such thing as a hard case. I am frightened weekly, but always when you walk up to the lion and lay hold, the hide comes off and the same old donkey of a question of law is underneath.

Through unplanned circumstance, duty falls upon this court of record to lay hold of the lion, unhide the underlying question of law, and do what is necessary to preserve the rights of the parties to orderly due process and the good conduct of the business of this court, and to vindicate the authority and dignity of this court in

3.    Applicant complains of the WESTPAC BANKING CORPORATION, Ms Betty VENTOURIS, Mr John PAPASPIROS and GADEN LAWYERS they had misdirect themselves to mislead, forge, falsify, predatory lending, debt bondage and misconduct..

4.    When a court as defined in s 79 "Australian Constitution sits it must sit with judges, or the free consent of the parties or its proceedings are and have been void, since Habeas Corpus Act 1640 16 Charles 1 Ch X, an Act fully transcribed in the Imperial Acts Application Act 1980 (Vic)

5.    S 80 of the Judiciary Act "So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters"

6.    The invoking of Chapter III (S71 to S80) of the Commonwealth of Australia Constitution Act 1900, and the declaration that a court not of record and not a nisi prius court purports to create a "court" which is in conflict with Chapter III and is thus unenforceable.

7.    The invoking of the ruling by the very learned Chief Justice Latham in 'South Australia v Commonwealth ("First Uniform Tax case") [1942] HCA 14; (1942) 65 CLR 373 (23 July 1942) 'wherein he ruled 'Common expressions, such as: "The courts have declared a statute invalid," sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour-but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it-and thereafter invalid. If it is beyond power it is invalid ab initio

8.    A consequence of this prerogative is the legal ubiquity of the king. Applicant majesty in the eye of the law is always present in all Applicant courts, though he cannot personally distribute justice. (Fortesc.c.8. 21nst.186) Applicant judges are the mirror by which the king's image is reflected. Blackstone's Commentaries, 270, Chapter 7, Section 379.

9.    "And it appears in our books, that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void. Coke CJ in Dr Bonham's Case (1610 8 Co. Rep. 114, p. 118)

10.    "This is perhaps a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Court to have destroyed them". Justice Cooke In Fraser v State Services Commission, [1984] 1 NZLR 116,

11.    The Applicant requests that this Honourable Court invoke its due process powers to preserve the rights of the parties to orderly due process and the good conduct of the business of this Honourable Court, and to vindicate the authority and dignity of this Honourable Court.

PRELIMINARY MATTER

12    I should deal with one additional preliminary point. Mr Abouabdillah raised a complaint orally from the bar table without any admissible evidence that the Western Australian District Registry of the Court had refused the filing of various affidavits from the Supreme Court of Western Australia such that counsel for the respondents should not be permitted to refer to those proceedings. There is no evidence of such refusal and there was no clarification as to what specific documents were not allowed to be filed. In any event, for reasons which follow it is evident from the statement of claim and all supporting material that the claim has no prospects of success whatsoever.

THE CLAIM

13    It is helpful to examine the pleaded complaints by collating the apparent topics of complaint as they appear in the pleading.

‘SECURITISATION’

14    The first topic to which the respondents direct attention is ‘securitisation’.

15    There are complaints in the statement of claim in [23]-[25], [44]-[46] and [50]-[55] concerning ‘securitisation’. It is desirable to repeat, at least, those short paragraphs (with the applicant’s original formatting and emphasis):

23.    If the Honourable Courts accepts the claims made by [Westpac] or GADEN LAWYERS that Applicant mortgage had not been securitised, then we say and truly believe that [Westpac] are still the holder of the original document that Applicant had signed, and if not we move this honourable Court to order [Westpac] to produce the original document to legitimatise their claims.

24.    If the Honourable Courts accepts the claims made by [Westpac] or GADEN LAWYERS that Applicant’s mortgage had not been securitised, then [Westpac] or GADEN LAWYERS must disclose how the money was created to legitimatise their claims.

25.    Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] or GADEN LAWYERS had provided proof that the signed Affidavit from the internal documents of Mr Peter SCALZI is true, correct and genuine, not misleading, and that Mr Peter SCALZI does actually exist and believe none available.

…

44.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] and GADEN LAWYERS had disclosed any documentation to support and verify their claim that they are or were executed owners and holders of the original notes and mortgages and believes none exist.

45.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] and GADEN LAWYERS had existed as the named parties of the recorded chain of title/interest and believes none exist.

46.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates the GADEN LAWYERS had shown the fact that they have standing, trustee or successor-in-interest and believes none exist.

…

50.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] had disclosed that the signed promissory notes by Applicant was a credit of the Applicant and to be used and recorded as BANK assets, and to be securitise for cash without ‘valuable consideration to the Applicant and believe none exist.

51.    We say and truly believe that Applicant has not seen or been presented with any material or evidence, which demonstrates [Westpac] and GADEN LAWYERS had disclosed that the Applicant had paid over $9487.50 mortgage insurance including stamp duties and believes none exist.

52.    We say and truly believe that Applicant has not seen or been presented any material fact or evidence, which demonstrates [Westpac] and GADEN LAWYERS had disclosed that the mortgage insurance of the Applicant was not paid out by the Insurance Company to [Westpac] to cover the mortgage and believes none exist.

53.    [Westpac] and GADEN LAWYERS failed to disclose that they “cannot lend its credit to another by becoming surety, endorser, or guarantor for him, such an act being ultra vires”: Merchants’ Bank v. Baird 160F. 642, [Westpac] and GADEN LAWYERS had participated in deceptive banking practices at all the time [t]o enrich them-selves to cause debt bondage and deprivation to Applicant.

54.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] and GADEN LAWYERS have not failed to act in a fair and equitable manner, not failed to give valuable consideration and believes none exist.

55.    [Westpac] and GADEN LAWYERS have hidden the truth of the true nature of securitisation of mortgages when dealings with Applicants; their refusal to substantiate, verify and support their claim was done willingly and knowingly to mislead the Applicant.

The respondents point to the fact that the concept of securitisation was the sole focus of the applicant’s defence in the proceedings in the Supreme Court of Western Australia in CIV 2439/2009 and CIV 2443/2009 (Westpac Banking Corporation v McLean [2012] WASC 182) (Supreme Court proceedings) and also on appeal in the Court of Appeal known as CACV 29/2012 and CACV 30/2012 (McLean v Westpac Banking Corporation [2012] WASCA 152) (the appeal proceedings).

16    The argument in relation to securitisation was wholly rejected by the Supreme Court both at first instance and on appeal. The argument was rejected both on factual and legal grounds.

17    The consideration of this topic by the primary judge in the Supreme Court proceedings is comprehensive and is squarely against the applicant. Justice Kenneth Martin noted (at [86]-[99]):

Securitisation?

86    Securitisation is not a precise term. Broadly speaking, it carries the meaning I mentioned, which suggests it relates to financing transactions. However, to suggest that by a financing transaction, whereby a bank or some financial institution raises money as against its loan book would in some (wholly unexplained) way generate the release of a debtor from the obligation to repay their loan is, as a matter of law, misconceived.

87    Two judgments recently delivered in Australia at first instance, in the context of summary judgment applications, address a so-called “defence” of securitisation. In Westpac Banking Corporation v Mason [2011] NSWSC 1241, McCallum J assessed a securitisation defence. She said [10]:

“The only substantive defence pleaded is that the plaintiff has no locus standi, and cannot enforce the terms of the loan agreement and mortgage or keep the benefits of enforcement, by reason of the alleged ‘securitisation’ of the loan agreement and mortgage.”

88    McCallum J noted between [12] - [16] assertions about equitable interests, penalty, violation of the Trade Practices Act 1974 (Cth) by reference to misleading and deceptive conduct or unconscionable conduct or the obligation to join third parties, in terms of the enforcement of a debt, if securitisation had taken place.

89    Her Honour then observed (by reference to similar defence averments as are seen in the amended defences filed on Ms McLean's behalf here) [20]:

“It may be doubted whether there was a proper basis for pleading the factual premise of the defence that the loan has been securitised.”

90    McCallum J said further [28]:

“It follows that the debt can be enforced, and can only be enforced at the suit of the plaintiff [that is, the legal owner of the debt].”

91    And at [29] - [30]:

“The short answer to the defence is, accordingly, that whatever the position between the plaintiff and any third party so far as any equitable interest or equity is concerned, the legal interests of the parties to these proceedings are governed by the loan agreement and the registered mortgage. A debt is owed by the defendants to the plaintiff and the land stands charged with that debt.

Default being admitted by the defendants in repayment of the sum secured by the mortgage, it follows inexorably that the plaintiff is entitled to an order for possession, there being no other defence raised to that entitlement.”

92    Judd J in National Australia Bank v Norman [2012] VSC 14, on a summary judgment application, rejected a “securitisation” defence.

93    At [29] and [30] the submissions by the defendant debtors (Mr and Mrs Norman) about securitisation being a defence and various matters are seen; see also [31] and following in his Honour's reasons.

94    The issue was resolved by Judd J at [38] - [39]:

“A generous interpolation of the defendants' attack on the bank for wrongfully dealing with the loan accounts, mortgage and title had three basic components. First, a general complaint that there was unauthorised dealing with their property; second, that insofar as the bank may have dealt with their loan accounts, mortgage and title, the defendants did not benefit from the proceeds; third, that as a consequence of the securitisation the bank has no title to seek repayment or possession of the property under the mortgage.

A threshold difficulty with this part of the defendants' case is that there was no evidence of any on-sale of the loans or securitisation by the bank. The alleged improper dealing was mere assertion.”

I note the close analogy to the facts in the present case.

95    His Honour concluded [39] - [40]:

“But in any event, Mr Norman did not suggest that upon payment of the outstanding amounts, the defendants would be unable to obtain a discharge of the mortgage and recover their title. Had the bank in some way dealt with its interest in the loans, through a process of securitisation, it was not suggested that the defendants' interest in the property was in any way diminished.

The defendants' advocacy on this topic might more accurately reflect the concerns of those who purchased derivatives based on unsound loans. The defendants were not exposed to the risks they would have this court explore when investigating the alleged impropriety of the securitisation process. Ultimately, the defendants' contentions concerning securitisation were baseless and irrelevant to their position to mortgagor, debtor and registered proprietor.”

96    I reach a similar conclusion to McCallum J and Judd J for the present case regarding Ms McLean's securitisation defence as a matter of principle.

97    Even if it had been established that one or other of the loans that the Bank now seeks to enforce by way of obtaining possession of the mortgage security properties had been securitised, the result would be the same.

98    Substantial loans have been made by the Bank to Ms McLean. They were not repaid. Ms McLean's properties secure those loans. To suggest that she, as debtor, can be excused from rendering proper repayment of her loans in circumstances where she has not received any notice (under the Property Law Act 1969 (WA)) of an assignee of her debt, is not capable of acceptance as a proposition of law.

99    Here, Ms McLean's securitisation argument fails both in fact and as a proposition of law.

18    The issue of securitisation has now been advanced by way of a substantive claim rather than as a point of defence. It is not open to the applicant to do so given the rejection of that ground in the Supreme Court proceedings and the appeal proceedings. There is no doubt that the applicant is estopped from raising the same question arising in the second proceeding, given the first decision was final and she is one in the same party or privy to the same parties in both proceedings: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (at 935).

19    The attempt to re-litigate securitisation as a positive claim is an abuse of process. In any event the pleading fails to disclose any cause of action.

‘FORGERY OF DOCUMENTS’

20    This claim appears to be advanced in [13]-[15], [30] and [33]-[37] of the statement of claim which are in the following terms:

13.    Applicant had in her hands [Westpac] internal documents that had beamed some light on how the forged and created documents were inflated modified to include the fictitious taxable income had come to being, we discovered that an accountant by the name of Mr John PAPASPIROS at Alexandria NSW in collaboration with BETTY VENTOURIS had voluntarily with their own freewill fraudulently created tax returns in the name of the Applicant to give to [Westpac] to facilitate the predatory lending.

14.    [Westpac] officer BETTY VENTOURIS used her unconscionable conduct to alter and modified Applicant’s Personal Finance Application, her involvement with Mr John PAPASPIROS had rendered the Personal Finance Application a forgery, fictitious and misleading, the documents shows Applicant taxable yearly income of previous year 2006 of $256,400.00 and current year 2007 of $258,423.00, to make the application acceptable to [Westpac] criteria and to speed up the loans approval, however the fact will show that Applicant had not filed any Tax returns since 1997 nor did she claimed or filed with [Westpac] the alleged yearly income, BETTY VENTOURIS and Mr John PAPASPIROS had redirected their duties voluntarily or otherwise to forge, fraud and mislead all concerned.

15.    [Westpac] internal documents show that Applicant was self-employed as Property Advisor/Investment Manager, however the fact will show that the Applicant was a non-income earner and in receipt of rental income in the vicinity of $3200.00 per month and a $600.00 per fortnight superannuation. The forged, fictitious and misleading documents claim that Applicant earnings in the vicinity of $258,423.00 per annum was grossly exaggerated, we say and truly believe that the fictitious $258,423.00 income per annum would had been very sufficient for the Applicant to not seek any loans.

…

30.    [Westpac], BETTY VENTOURIS and Mr John PAPASPIROS have abused their power to inflict hardship, debt bondage by falsifying, forging and creating fictitious documents to facilitate their predatory lending.

…

33.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence which demonstrates that BETTY VENTOURIS and Mr John PAPASPIROS did not conspired together to forge, falsify documents to deceive and compel the Applicant unknowingly to accept [Westpac] predatory lending and believes none exist.

34.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence which demonstrates that without BETTY VENTOURIS and Mr John PAPASPIROS fictitious taxable income and forged documents the loan would had been approved by [Westpac] and believes none exist.

35.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence which demonstrates that [Westpac], BETTY VENTOURIS and Mr John PAPASPIROS did not used unsigned documents that claimed to be of Applicant and believes none exist.

36.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates the [Westpac], BETTY VENTOURIS and Mr John PAPASPIROS have not interfered, added, deleted, falsified, forged and created documents to facilitate the approval of the loan and believes none exist.

37.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates the [Westpac], BETTY VENTOURIS and Mr John PAPASPIROS have not supplied documents with hand writing that is not of Applicant and believe none exist.

21    The applicant appears to raise these allegations only as against the fourth and fifth respondents. The respondents contend that there is no particularisation or identification of any document that is said to be forged. However I note that [13] and [14] of the statement of claim do purport to identify some documents.

22    The raising of this allegation of forgery is untenable given that formal admissions were made about the authenticity of the loan and security documents in the Supreme Court proceeding. Justice Kenneth Martin there reached findings (at [12]-[17]) that those admissions were properly made. At this stage, the applicant was legally represented. The findings of his Honour in those paragraphs were as follows:

12    In CIV 2439 of 2009, the 12 paragraph statement of claim was filed concerning Ms McLean's proprietorship of two residential properties in Perth at 65B Langley Crescent, Innaloo and 93A Brighton Road, Scarborough. It is said that by a loan contract in writing of 7 August 2007, Ms McLean agreed to repay $765,000 to the Bank, in accordance with terms of that agreement. The loan was secured by the registered first mortgages given to the Bank by Ms McLean over her properties.

13    There were standard terms and conditions in each first registered mortgage. Those mortgages received registration numbers at Landgate, once lodged. The mortgages were registered at Landgate pursuant to the Transfer of Land Act in due course, as referred to in par 7. A loan advance of $765,000 in funds is referred to as having been made to Ms McLean on or about 11 October 2007 (par 6). For each mortgage, standard 'fine print' terms and conditions found in a memorandum of provisions were applicable.

14    It is then contended in the statement of claim that Ms McLean did not make payments as required under the terms of her loan agreement (par 10). Subsequently, the Bank sought to exercise its powers as mortgagee in the wake of Ms McLean's default.

15    Paragraph 12 of the statement of claim asserts that the Bank sought repayment of the full loan indebtedness and told Ms McLean that it would exercise its powers if repayment was not made.

16    Each of the 12 paragraphs of the statement of claim are admitted by Ms McLean's amended defence, filed on 18 October 2011. That was at a time when Ms McLean was represented on the record by a legal practitioner. I refer to that defence pleading and the admissions found at pars 1 - 12 therein. In any event, the making of the loan agreement; securing of the loan by registered first mortgages in favour of the Bank; the advance of funds; Ms McLean's default in repayment; the Bank's demand and Ms McLean's failure to satisfy that demand are all matters independently proven. This is by reason of the uncontentious documents and information in Mr Scalzi's two affidavits (exhibits 1 and 2).

17    In my assessment, the admissions found in her pleaded defences at the time Ms McLean was represented by a legal practitioner were all correctly made. Ms McLean has subsequently represented herself in these proceedings without the assistance of counsel. Had I thought some unwarranted admission had been wrongly made by her defences by a previous legal representative, I would have been concerned. However, I have investigated the position and I am wholly satisfied that the pleaded defence admissions were correctly made. (emphasis added)

23    To raise a forgery allegation now is an abuse of process.

24    Alternatively, the doctrine of Anshun estoppel precludes the applicant from raising an allegation of forgery at this late time. There is no evidence to suggest that such a claim was not open to have been made on the facts as known and the only proper inference is that such a claim could and should have been made in the earlier proceedings. In those circumstances the applicant will be estopped from making the claim at a subsequent point in time: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (at 604). If such a claim was open, it was relevant to the earlier litigation and it would have been at least unreasonable not to have raised it before Justice Kenneth Martin. The loan and security documents were directly the subject of the Supreme Court proceedings and the appeal proceedings. In addition, those documents were the basis upon which the applicant brought another (rejected) claim in the State Administrative Tribunal (SAT) (CC 85 of 2010). The first respondent in the earlier proceedings successfully sought possession and judgment in its favour based upon the loan and security documents.

A CLAIM THAT THERE IS ‘NO EVIDENCE’ OF VARIOUS THINGS

25    This claim is raised in numerous paragraphs of the statement of claim which will not be repeated but the paragraphs are identified as [16]-[19], [21]-[22], [25]-[26], [33]-[54], [57], [64], [83], [92], [94]-[116] and [125]-[127]. There is an underlying theme of the pleading in many of the paragraphs to the effect that the respondents or some of them have not provided evidence of a thing or, alternatively, that the applicant has seen no evidence of a thing.

26    The things to which these assertions relate can only be relevant to the securities documentation in respect of which judgment has been given in the first instance in the Supreme Court proceedings and affirmed on appeal in the appeal proceedings.

27    The suggestion that such proposition should be entertained in this Court in the light of that background cannot be sustained. In any event, as the respondents assert, the applicant’s claim must be one based on material facts put forward to support a conclusion in their favour.

28    The repetition on numerous occasion of the lack of evidence of various things does not ground any cause of action.

ALLEGED BREACH OF THE CRIMES ACT 1914 (CTH) AND WESTPAC’S KNOWLEDGE OF THE TRUE INCOME DETAILS OF MS MCLEAN

29    Paragraph 3 of the statement of claim is set out above at para 11. Paragraph 27 of the statement of claim provides as follows:

[Westpac], BETTY VENTOURIS and Mr John PAPASPIROS have acted arbitrarily and capriciously, have abused their discretion and have acted in contravention and contrary to sections of the Commonwealth Crimes Act.

30    The respondents written submissions are brief and to the following effect:

29.    Putting aside the outright preposterousness of these allegations, they disclose no conceivable cause of action.

30.    There is no jurisdiction in this Court to hear allegations of any breach of the Crimes Act 1914 and certainly the Applicant has no standing to do so in any case.

31    No response was raised by the applicant on the hearing of the summary judgment application to these aspects of the respondents’ submissions. Even assuming there might well be circumstances in a civil case where breaches of the Crimes Act 1914 (Cth) (the Crimes Act) might be raised in a pleading leading to civil relief, it is clear that the paragraphs cited are completely without the necessary factual foundation to support any such conclusion. They suffer from the same defects and difficulties as the alleged claimed forgeries.

SATISFACTION OF DEBT BY BILL OF EXCHANGE

32    This pleading is set out in [58] and [68]-[126] of the statement of claim. Paragraph 58 provides as follows (with the applicant’s emphasis in bold print):

We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates [Westpac] did not receive a delivered payment around the 20th of September 2012 “in accord and satisfaction” as it pertains to any inchoate instrument giving rise to a bill of exchange and believe none exist.

33    Paragraphs 68 to 126 are too lengthy to set out but all turn on the premise set up in [58] of the statement of claim.

34    This aspect in particular of the respondents’ motion and submissions was supported by an affidavit of Mr Brian Smith sworn on 26 November 2012 which addresses the pleading raised by the applicant. The relevant aspects of his affidavit disclose the following matters (Mr Smith was not called for cross-examination nor was his evidence challenged).

35    Mr Smith is the third respondent and is ‘employed as a partner by Gadens Lawyers’. He had the conduct of the proceedings against the applicant in the Supreme Court proceedings and the defence of an application brought by her in SAT.

36    He deposes to the fact that in June and August 2007 the applicant entered into two loan transactions with Westpac. The loans were secured by three residential properties owned by the applicant. In March 2009, she was in default due to the failure to make required payments. Westpac issued default notices. On 12 August 2009 it commenced the Supreme Court proceedings which were defended. In early 2010, the applicant commenced several proceedings against a number of lenders including Westpac in SAT. Those proceedings concerned applications by the applicant to reopen a series of loans under the provisions of the Consumer Credit (Western Australia) Code (Credit Code). The applicant complained in the SAT proceedings that Westpac had contravened the Credit Code in the approval and provision of the loan facilities to her. The respondents made an application for the determination of the preliminary issue as to jurisdiction. The outcome of those applications was that in September 2010 the SAT proceedings were dismissed, save for one proceeding between the applicant and Westpac.

37    In the SAT proceeding between the applicant and Westpac, the jurisdiction point was not pressed by Westpac as a preliminary issue. The application was programmed for a full hearing. There was a trial of the SAT proceeding heard on 14-15 April 2011 and 23-25 May 2011. SAT dismissed the applicant’s application to reopen the loan transactions and made what Mr Smith describes as ‘a number of serious adverse findings’ concerning the applicant’s credibility and conduct in procuring the loans. It is unnecessary to set out those findings but it is fair to say they are not favourable to the applicant or her perceptions.

38    Subsequently the Supreme Court proceedings were ‘reactivated’ and Westpac made an application for judgment. The hearing was heard on 29 and 30 March 2012. In the applicant’s defence in the Supreme Court proceedings she made a series of admissions relating to the entry into the loan transactions and her default. The sole issue raised in the defence in the Supreme Court proceedings was an argument based on the contention that the loans had been securitised by the applicant. As noted above, that argument was rejected in fact and in law by Justice Kenneth Martin. The appeal was similarly rejected, indeed, the appeal was struck out as having no reasonable prospects of success.

39    Following the conclusion of the appeal proceedings, Westpac took steps to take possession of the security properties in accordance with the original judgment entered after the trial of the Supreme Court proceedings. The applicant then pursued an application to that Court for stay of execution of the judgment pending an application for special leave to appeal to the High Court of Australia. That application was dismissed by Justice McKechnie on 5 September 2012.

40    A second application for a stay of execution was made by Mr Abouabdillah on behalf of the applicant. In the second stay application Mr Abouabdillah asserted that the debt to Westpac had been fully discharged by operation of a purported bill of exchange which had a $1 postage stamp attached to it as payment. At the time the amount owing to Westpac was in the order of $2.4 million. On 5 October 2012 Registrar Whitby in the Supreme Court of Western Australia dismissed the application and ordered that Mr Abouabdillah as a non-party pay the costs of the application.

41    In relation to the purported bill of exchange, Mr Smith records that on 21 September 2012 an envelope was hand delivered to Gadens Lawyers which contained copies of the following documents, the original documents having been sent to the office of the second respondent:

(a)    annotated judgment CIV 2443 of 2009;

(b)    annotated amended judgment in CIV 2439 of 2009;

(c)    ‘Bill of Exchange’;

(d)    ‘Default and Liability Clause & Notice’;

(e)    annotated copy of an email sent by Mr Smith to the applicant on 19 September 2012; and

(f)    ‘Payment Slip’.

42    Mr Smith produced those documents. On 21 September 2012 Mr Smith sent an email to the applicant acknowledging receipt of the copies of the documents as described stating that any attempt to reach a unilateral accord in satisfaction of the debt or any offer contained in the documents was wholly rejected on behalf of Westpac.

43    On 23 September 2012 he received an email from Mr Abouabdillah which attached a letter dated 24 September 2012 addressed to the Attorney-General of the State of Western Australia and the associate to Justice Kenneth Martin. There were further exchanges in which Mr Smith made it clear that any attempt to assert that the debt to Westpac had been paid was rejected.

44    On 26 October 2012 Mr Smith received the original documents and sent a letter on that date to the applicant returning the documents including the postage stamp alleged to constitute the payment in satisfaction of the debt. That document was also produced by Mr Smith.

45    It is clear from this unchallenged material that the bill of exchange, if it was such a document, and if it was an attempt at settlement with Westpac was comprehensively rejected by the offeree.

46    This aspect of the pleading is fundamentally misconceived as is the entirety of the statement of claim. A bill of exchange is defined by s 8 of the Bills of Exchange Act 1909 (Cth) as being in substance an unconditional order in writing, addressed by one person to another, signed by the person giving it and requiring the addressee to pay on demand or at a fixed time, a sum certain in money to or to the order of a specified person or bearer.

47    The document described by the applicant as a bill of exchange certainly did not satisfy that statutory description. Far more importantly, the patent rejection of the suggested offer disposes of any ‘accord and satisfaction’ contention – once again – having already been rejected in the Supreme Court of Western Australia. The claim is baseless. Raising it is an abuse of process.

‘GADENS LAWYERS ACTED WITH NO AUTHORITY/STANDING’

48    These topics appear to be ventilated in [62]-[64] of the statement of claim and [126]-[127], each of which is in the following terms (with the applicant’s original formatting and footnote included):

62.    All the above related [Westpac] documentation, although, perhaps not invalid,

1.    without reservation is conclusively accepted as the ‘best possible plea’ [Westpac] and his or it’s assigned learned friends and counsel were able to present or tender before the honourable Court.

2.    never-the-less whilst the of the above related [Westpac] documentation, although, perhaps not invalid,

3.    We are certain [Westpac] wish it to be otherwise,

A.    until we, involved ourselves in our proper standing in settling and closing this matter,

B.    this entire matter most certainly remained incomplete.

4.    throughout the negotiations at all prior material times, all documents presented to us to this point, remain incomplete, and to the contrary, neither has it verifiably been rebutted by [Westpac] – real or imaginary, nor his agents, assigns and/or nominees.

63.    Notwithstanding numerous earlier attempts to provide [Westpac] documentation and/or their failure of consideration (Footnote [1] “failure of consideration” : is it not true that the failure to produce or recreate the record shall be construed as contrary to the position of the PROSECUTOR as long as one does not subsequently dishonour it? Is it not true that on page 632 of Blacks Eighth Law Dictionary states the following that if the prosecutor has a failure of a record … failure of record. Hist. In a trial by record, a party’s inability to produce the record and thereby prove a pleading, an absence of proof of record to support a party’s pleading – the other party was entitled to summary judgment. see trial by record under TRIAL Black’s 8th Edition law Dictionary pg. 632. trial by record, Hist. A trial in which, a record having been pleaded by one party and denied by the other, the record is inspected in order to decide the dispute, no other evidence being admissible. See NUL TIEL TRIAL Black’s 8th Edition law Dictionary pg. 1544. trial by the record. A trial in which one part insists a record exists to support its claim and the opposing party denies the existence of such a record if the record can be produced, the court will consider it in reaching a verdict – otherwise, it will rule for the opponent. Black’s 8th Edition law Dictionary pg. 1544. nul tiel [Law French]. No such. This phrase typically denotes a plea that denies the existence of something. Black’s 8th Edition law Dictionary pg. 1099. nul tiel record, n. [Law French “no such record”]. A plea denying the existence of the record of the record (sic) on which the plaintiff bases a claim, which this phrase typically denotes a plea that denies the existence of something. Black’s 8th Edition law Dictionary pg. 1099.) in doing so, we therefore confirm we were left with no alternative

1.    but to get a witness and assist in the completion of a process, which for whatever earlier reason, be it,

a.    defective documentation; or

b.    missing certain material particulars on an instrument, or

2.    such being unable to be completed further or properly by [Westpac] or GADEN LAWYERS alone,

3.    all matters between the parties were at an impasse, incomplete and/or uncompleted by [Westpac] and GADEN LAWYERS.

64.    Similarly, we verify confirm [Westpac], their agents assigns or nominees do not hold, nor are unable to provide actual documentation or evidence, without diminishing, imperfection or incompleteness, which without mutation or misrepresentation to the contrary provides sustainable, complete or perfected evidence, or they would have presented same long ago, and We sincerely know or no proven evidence to the contrary, neither has it verifiably been presented by [Westpac] – real or imaginary nor his agents, assigns and/or nominees.

…

126.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates that the GADEN LAWYERS had provided any signed documentation with [Westpac] that gives them authority to reject, accept or return the Bill of Exchange and believe none exist.

127.    We say and truly believe that Applicant has not seen or been presented with any material fact or evidence, which demonstrates that the GADEN LAWYERS had provided any signed documentation with [Westpac] that gives them legitimacy of standing and believe none exist.

49    The evidence of Mr Smith suffices to dispose of any suggestion that Gadens Lawyers were not duly instructed by Westpac in these matters. There is no other evidence. His evidence was unchallenged.

50    I can discern no basis at all for this aspect of the pleading. It is entirely without foundation.

CONCLUSION ON THE RESPONDENTS’ APPLICATION FOR SUMMARY JUDGMENT

51    It is unnecessary to refer to the summary judgment principles at any length. Section 31A of the Federal Court of Australia Act 1976 (Cth) (FCA) provides a lower barrier to a successful summary judgment application. The Court must nevertheless proceed with caution so as not to do an injustice, particularly in the case of a self-represented litigant.

52    There is no reasonable prospect of the applicant successfully prosecuting this proceeding or any part of it. It is frivolous, vexatious and fanciful. No reasonable cause of action is disclosed and the proceeding is an abuse of process of the Court. Even if there were any legitimate aspect which could have been raised, it should have been raised during the Supreme Court proceedings and the appeal proceedings.

53    To the extent that the statement of claim can be understood at all, it fails to disclose any cause of action. It relies on issues that have already been adjudicated in the Supreme Court and Court of Appeal, makes fanciful and outrageous allegations and raises matters which, if there was any truth or any merit in them, should have been raised in the earlier proceedings. I can discern no hope of saving the statement of claim.

54    The respondents should not have to wait any longer for the inevitable. Nor should the public resources of the Court be further wasted.

55    The statement of claim will be struck out and the applicant’s originating application dismissed.

56    In those circumstances, it is unnecessary to consider a variety of alternative applications pursued by the respondents such as the removal of Westpac and the third respondent as parties to the proceeding.

ANCILLARY MATTERS

57    Additional relief has been sought by the respondents in terms of an application to declare the applicant vexatious. This issue was not specifically addressed in the course of oral argument. It was certainly not addressed by the applicant in response. My present disposition would be to decline to make such a declaration as there has been no proper consideration of the individual position of the applicant. I am mindful that it was Mr Abouabdillah rather than the applicant herself who drew the statement of claim. While the applicant may be seriously misguided, it is clear that she has been led into error and depends substantially on the assistance of Mr Abouabdillah.

58    I would not rule out consideration of such an application and, for my part, would seriously consider it if the applicant took further steps to pursue litigation of the nature such as that now dismissed but, for present purposes, I would decline to make such a declaration.

59    The respondents have also sought an indemnity costs order against the applicant. Again, this topic was not expressly discussed in the course of the hearing but largely for the same reasons as declining to make a declaration of the nature sought against the applicant at this stage, I would be disinclined to award the respondents costs an indemnity basis. In any event, I suspect that such an order would be academic in the present circumstances.

60    It is unnecessary to consider the applicant’s various applications which were adjourned pending the hearing of the summary judgment application. She is not entitled to interlocutory or ancillary relief to support a manifestly hopeless claim.

61    The following orders are made:

1.    The applicant’s originating application filed on 25 October 2012 is dismissed.

2.    The applicant’s interlocutory application filed on 17 December 2012 is dismissed.

3.    The applicant is to pay the costs of the application including costs of the respondents’ interlocutory application filed on 26 November 2012, to be taxed if not agreed.

Associate:

Dated:    22 February 2013