FEDERAL COURT OF AUSTRALIA

Burge v Commonwealth Bank of Australia (No 3) [2017] FCA 383

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a), (b) and (d) of the Federal Court Rules 2011, the whole of this proceeding as against the first and third respondents be dismissed summarily.

2.    The applicant pay the first and third respondents’ costs of and incidental to this proceeding (including any reserved costs).

3.    The affidavit in paper form of the applicant sworn on 20 September 2016 (incorrectly shown on p 2 thereof as having been sworn on 20 September 2017) provided to Foster J by Counsel for the applicant be retained by the Court and marked as Exhibit A in this proceeding.

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

REASONS FOR JUDGMENT

FOSTER J:

1    This proceeding was commenced on 21 September 2016 in circumstances which I explained at [1]–[6] of Burge v Commonwealth Bank of Australia [2016] FCA 1159 (Burge No 1), where I said:

Yesterday, the applicant, Susan Burge, made an ex parte application to the Com-mercial and Corporations Duty Judge in the Sydney Registry of the Court for the urgent listing of an application for an interlocutory injunction to restrain the first respondent (CBA) from selling by auction the property known as 127 Elphin Road, Newstead, Tasmania (the Elphin Road property) which is programmed to take place tomorrow (23 September 2016). She also claimed an injunction to restrain the sale of her personal property presently held by the CBA. However, the principal focus of her application was on the auction of the Elphin Road property.

The Duty Judge acceded to the application made to him yesterday by listing the applicant’s application for an interlocutory injunction at 2.15 pm today before me and by abridging the time for the service of all relevant materials.

In support of her application, the applicant read a very lengthy affidavit sworn by her on 20 September 2016 (incorrectly dated as 20 September 2017), a further affidavit sworn by her earlier today (22 September 2016) and an affidavit of her solicitor, Mr Lorne Thomas Havenstein, sworn earlier today.

The respondent parties have had very little time to address the applicant’s application but have placed before the Court certain materials which I admitted into evidence and marked as Exhibit 1.

The final relief claimed by the applicant is specified in her Originating Application filed yesterday (21 September 2016).

In that Originating Application, the applicant claims declarations, injunctions, damages or compensation, interest and costs. She also claims writs of certiorari, prohibition and mandamus.

2    On 22 September 2016, I dismissed the applicant’s claims for urgent interlocutory injunctive relief. My reasons for doing so are set out in Burge No 1.

3    In these Reasons for Judgment, I shall refer to the first respondent as “the CBA” and the third respondent as “FOS”. I shall also refer to the property known as 127 Elphin Road, Newstead, Tasmania as “the Elphin Road property”.

4    On 22 September 2016, I also dismissed the whole of the proceeding as against the second respondents (the Supreme Court of Tasmania, the Justices of that Court and the Associate Justices of that Court). The applicant did not press her claims against the second respondents and had no difficulty with her case against them being dismissed (see Transcript of the hearing on 22 September 2016, p 10 l 8 to p 11 l 5).

5    On 18 October 2016, the CBA filed an Interlocutory Application in which it sought summary dismissal of the whole of the proceeding as against it. It also claimed an order for costs. At the hearing of that application, the CBA relied upon s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a)–(d) of the Federal Court Rules 2011 (FCR).

6    On 24 October 2016, FOS filed an Interlocutory Application in which it also sought an order summarily dismissing the whole of the proceeding as against it and an order for costs. It too relied upon s 31A of the FCA Act and r 26.01 FCR.

7    The next occasion after 22 September 2016 when the proceeding was listed before the Court was 16 November 2016. On that day, the proceeding was listed for case management only. By 16 November 2016, the CBA and FOS had filed their summary dismissal applications. On that occasion, I programmed those applications for hearing and fixed the hearing of both of them before me on 19 December 2016.

8    On 12 December 2016, the applicant filed an Interlocutory Application in which she sought the following relief:

1.    That the defendant is urgently restrained from transferring title of 127 Elphin Road, Newstead in Tasmania until further order of this Court or agreement between the applicant and the defendant.

2.    That the applicant be granted the right to defend the 2015/2016 possession and or sale of her properties 127 Elphin Road, Newstead in Tasmania and 15 Abbott Street, East Launceston in Tasmania, as was her right to do under the Lands Title Act Section 146.2. Supporting evidence on this matter show [sic] that there is a serious question to be tried in this matter.

3.    Any further orders that seem appropriate to the Court.

4.    Costs.

9    On 19 December 2016, I dismissed the applicant’s Interlocutory Application filed on 12 December 2016 with costs (as to which, see Burge v Commonwealth Bank of Australia (No 2) [2016] FCA 1555 (Burge No 2)).

10    At the commencement of the hearings on 19 December 2016, Counsel for the applicant made an application that I recuse myself from the hearings fixed to take place on 19 December 2016. I declined to do so. I informed the parties that I would provide brief reasons for that decision when I delivered these Reasons for Judgment. I will address this matter later in these Reasons.

11    By these Reasons for Judgment, in addition to addressing the applicant’s application that I recuse myself, I determine the summary dismissal applications brought by the CBA and FOS.

The Relevant Facts

12    In support of its summary dismissal application, the CBA read the affidavit of Patrick James Forbes Lunn sworn on 18 October 2016. The applicant made a general relevance objection to that affidavit without articulating the basis of that objection. I admitted the whole of the affidavit of Mr Lunn including all of the annexures thereto.

13    In support of its summary dismissal application, FOS read the affidavit of Nicolas Crowhurst affirmed on 24 October 2016. The applicant objected to paragraphs 5 to 12 of that affidavit upon the basis that those paragraphs constituted nothing more than a summary of facts and matters otherwise to be found in the evidence before the Court and that, pursuant to s 136 of the Evidence Act 1995 (Cth), that summary should only be accepted as proof of the truth of its contents to the extent that it was otherwise supported by evidence before the Court. I received that evidence subject to a ruling in the terms sought by the applicant (see Transcript p 12 ll 9–34).

14    For her part, the applicant read and relied upon her affidavits sworn on 20 September 2016, 22 September 2016 and 12 December 2016, including all exhibits and annexures thereto. The applicant also relied upon the affidavit of Lorne Thomas Havenstein sworn on 22 September 2016 including all annexures and exhibits thereto. I shall refer to the applicant’s affidavit of 20 September 2016 as “the applicant’s principal affidavit”.

15    The facts necessary to be found in order to determine the summary dismissal applications are, for the most part, not in dispute.

16    I now turn to set out those facts.

17    Where there is some dispute or controversy about any particular fact or matter and that dispute is relevant to the question of whether this proceeding should be summarily dismissed, I shall identify the fact or matter in dispute and, to the extent necessary, address the nature and extent of any dispute in respect of that fact or matter.

18    In 2008, the applicant obtained loan funds under a credit contract with the CBA dated 28 October 2008 (account number 10303682) in the amount of $300,000 (the first credit contract). That loan was secured by a mortgage over real property owned by the applicant and her former husband (Robert Foggo) at 16–18 Reuben Court, Kings Meadows, Tasmania (Reuben Court property). On 11 March 2011, the applicant sought and received permission from the CBA to redraw an additional sum of $13,000 in respect of this loan. Thus, the principal due under this loan thereafter became $313,000.

19    On 4 May 2010, the applicant and Mr Foggo made application to the CBA for a Wealth Package. Part of that package was an application for a further loan in the amount of $500,150. Most of that amount was used to pay out the existing lender to the applicant and Mr Foggo, Westpac Banking Corporation. The second loan was advanced by the CBA shortly after 4 May 2010 (Home Loan Account No 838932805) (the second credit contract) and was secured by a mortgage over the Elphin Road property and also a mortgage over other real property owned by the applicant known as 15 Abbott Street, East Launceston (the Abbott Street property).

20    The applicant encountered difficulties in complying with the obligations which she had undertaken under the two credit contracts which she had entered into with the CBA. This led to the applicant approaching FOS on 24 September 2012 with a request that FOS investigate and determine a dispute between the applicant and the CBA in relation to those two credit contracts.

21    In her referral to FOS, the applicant made three substantive complaints against the CBA. She said that the CBA had:

(a)    Engaged in maladministration in making the loans because she could not afford to service those loans at the time when each of them was made;

(b)    Not dealt with her appropriately when she found herself in financial difficulty; and

(c)    Breached its duties owed to her as mortgagee in possession of the Reuben Court property.

22    In the first half of 2013, while the applicant’s notified dispute was in the hands of FOS, the CBA took possession of the Reuben Court property. It subsequently sold that property by contract for sale dated 19 July 2013 for $400,000. One of the applicant’s ongoing complaints is that the CBA sold that property at an undervalue. That complaint was included in the complaints made to FOS.

23    On 13 August 2014, FOS notified its determination in respect of the dispute which had been referred to it by the applicant (Final Determination).

24    FOS found that the CBA had been guilty of maladministration when it made the loans because:

(a)    The living expenses accepted by the CBA at the time the loans were made were less than the acceptable standard for living expenses (based upon the Henderson Poverty Index or HPI);

(b)    The projections used by the CBA in its serviceability assessment for the first credit contract were not sensitized in accordance with industry best practice;

(c)    The CBA overestimated the business income of the applicant and Mr Foggo; and

(d)    The CBA took Mr Foggo’s full income into account in assessing serviceability despite the fact that he was on probation.

25    FOS found that the applicant’s loss in respect of the first credit contract was $144,625.58. FOS found that that amount should be applied to reduce the amount due under the second credit contract, the first credit contract having already been fully repaid by the time that FOS issued its Final Determination.

26    FOS also found that the applicant’s loss under the second credit contract was $28,340.06 being excess interest paid.

27    FOS therefore determined that the amount which the applicant should be obliged to pay under the second credit contract was $377,215.35 and that that amount should be split into two components: An interest bearing component ($307,422.46) and a non-interest bearing component ($69,792.89).

28    As mentioned at [25] above, the Final Determination proceeded upon the basis that the loan funds due to the CBA under the first credit contract had been repaid in full by the applicant and that she had no further liability to the CBA in respect of that contract.

29    As subsequently corrected, the Final Determination contained a finding that the CBA had not breached its duties as mortgagee in possession in respect of the Reuben Court property. All of the applicant’s criticisms of the CBA’s conduct as mortgagee in respect of that property were rejected by FOS.

30    It is clear from the detailed reasons provided by FOS in the Final Determination that the guiding principle which FOS adopted in making the Final Determination was that, to the extent possible, it would seek to restore the applicant to the position that she would have been in had the two loans not been made.

31    Initially, the applicant was not satisfied with the Final Determination. She sought further explanations from FOS. By letter dated 25 August 2014, the author of the Final Determination provided a detailed explanation of that Determination. The last paragraph on p 1 of that letter was in the following terms:

If you reject the Determination CBA will not be obliged to apply the reductions to the debt required by my Determination and can commence recovery action in regard to the full amount of the debt. However CBA will still have an ongoing obligation to you as a customer in financial hardship.

32    As I understand the way in which the FOS arrangements work, a participating financial institution (in this case, the CBA) voluntarily agrees to abide by the resolution of certain disputes referred to FOS, thereby ceding to FOS the power to determine on a final and binding basis certain types of disputes with the customers of the participating financial institution, if the customer chooses to engage with FOS for that purpose. By way of contrast, the customer has the right to elect between accepting the FOS determination once made or not accepting that determination. If the customer accepts the FOS determination, that is the end of the matter. The parties’ rights in respect of the matters referred to FOS are thereafter governed by the FOS determination. If the customer does not accept the FOS determination, the parties’ rights remain as they were before the referral to FOS.

33    The idea behind the FOS process seems to be that one way of addressing what may be an imbalance between the bargaining position of a financial institution and that of its customers is to provide this opportunity to the customer to secure an independent determination in respect of the customer’s complaint without resort to litigation while at all relevant times retaining the right not to accept that determination. The basis of the FOS process is entirely contractual.

34    As I have already noted, the Final Determination in the present case contained a decision by FOS that the applicant be given the benefit of a substantial reduction in the amount which she was obliged to pay to the CBA pursuant to the remaining credit contract. The amount of that reduction was $173,275.64 (being the total of three amounts, namely, $144,625.58, $28,340.06 and $310.00). The Determination also provided for a reduction in the interest which the applicant would have to pay in the future.

35    On or about 12 September 2014, the applicant accepted the Final Determination by signing a formal form of acceptance but added next to her signature on the form of acceptance the words “under duress” in brackets.

36    By letter dated 16 September 2014, FOS responded to the applicant’s transmission of her acceptance with the words “under duress” appended to her signature by stating the following:

(a)    FOS would only accept a standard form release which has not been altered in any way but which has simply been signed and dated by the applicant. The “standard form release” is the FOS standard form styled “Acceptance of Determination”, samples of which were annexed to Mr Crowhurst’s affidavit and marked “NC-1” and “NC-3”;

(b)    By adding the words “under duress” next to her signature, the applicant had failed to accept the Final Determination;

(c)    If the applicant wished to accept the Final Determination in full and final settlement of the dispute which she had notified to FOS, she was required to provide to FOS a signed and dated Acceptance of Determination form that has not been altered or amended in any way and to do so by 19 September 2014; and

(d)    If such a signed Acceptance was not received by 19 September 2014, FOS would assume that the applicant was intending to reject the Final Determination.

37    At par 87 of her principal affidavit, the applicant claims that she was forced to sign the Final Determination under duress. She says that she signed it under economic duress. I have taken the applicant’s references to “the Final Determination” and “determination” in par 87 to be references to her signed acceptance of the Final Determination. The only evidence which the applicant gives of such duress is the following:

I wrote the words “Under Duress” beside my signature. I was then asked by a CBA officer [whose name I do not recall] to remove the words “Under Duress” or “You will get nothing from the Bank or FOS”; however, I did not remove the words from the document but I placed a sticky note over the words. I then rescanned the document and sent it back to FOS, to show by reference to the original FOS document that I was being forced into the position of accepting the Final Determination against my will, and my interests.

38    Thus, on 19 September 2014, the applicant signed and returned to FOS by email what would have appeared to FOS to be a clean copy of the Acceptance form in which she accepted the Final Determination in full and final settlement of all matters between herself and the CBA arising out of the dispute. That signed Acceptance, as received by FOS, had not been altered, added to or qualified in any way.

39    In about early October 2014, the CBA gave effect to the Final Determination by recalculating the amounts due under the second credit contract and restructuring that contract in accordance with the decision of FOS specified in the Final Determination. The applicant accepted the benefit of these recalculations which provided to her a reduction in her debt to the CBA of a little over $173,000.00 and some interest relief in the future.

40    In this proceeding, notwithstanding that she signed, dated and dispatched to FOS an unqualified acceptance of the Final Determination on 19 September 2014, the applicant continues to argue that she never bound herself to accept that Determination.

41    On 30 September 2014, FOS published a corrected Determination in which it made clear that it had determined that the CBA had not failed to perform its duties as mortgagee in possession in respect of the sale of the Reuben Court property.

42    In November 2014, the applicant lodged with FOS further disputes between the CBA and her. However, FOS declined action in respect of these disputes upon the basis that all disputes as between the applicant and the CBA had already been determined by its Final Determination dated 13 August 2014, as later corrected. Subsequently, the applicant lodged with FOS further disputes with the CBA. These too were rejected, on this occasion because the applicant had already commenced proceeding No 532 of 2015 in the Supreme Court of Tasmania (proceeding SC 532 of 2015).

43    In late 2014 and early 2015, the applicant negotiated directly with the CBA in an attempt to secure further concessions from the CBA.

44    On 13 April 2015, the CBA commenced proceedings pursuant to s 146 of the Land Titles Act 1980 (Tas) in the Supreme Court of Tasmania, Hobart Registry for possession of the Abbott Street property and of the Elphin Road property (proceeding SC 256 of 2015).

45    On 2 June 2015, the applicant commenced an action for damages against the CBA in the Launceston Registry of the same Court (proceeding SC 532 of 2015).

46    On 17 June 2015, the applicant filed an Interlocutory Application in proceeding SC 532 of 2015 in which she sought an order that the CBA be restrained from taking possession of the Elphin Road property and of the Abbott Street property until further order or until an agreement between her and the CBA is reached. At the same time, she also sought an order staying proceeding SC 256 of 2015 until further order.

47    On 22 June 2015, that Interlocutory Application came before Holt AsJ. The applicant was represented on that day by an experienced lawyer, Mr Lester of Clarke & Gee, Lawyers. The CBA was represented by Senior Counsel. I have read the transcript of the exchanges in argument on that day. I do not think it is necessary to refer to that material in any detail. During the course of the morning, certain discussions took place between the legal representatives of the parties which led to the application then before the Court being resolved by consent.

48    The orders of the Court which were made by consent on 22 June 2015 in proceeding SC 256 of 2015 (the 22 June 2015 Orders) were in the following terms:

THE COURT ORDERS BY CONSENT THAT –

1.    Unless in the meantime all money due under memorandum of mortgage number C970922 is paid, possession of the premises described in folio of the register volume 41683 folio 1 is to be given by the respondent Susan Burge to the applicant Commonwealth Bank of Australia (A.B.N. 48 123 123 124) on or before the 90th day following service of this order by postage or otherwise and where service is effected by post the order shall be deemed to have been served on the second business day following the date of posting.

2.    Unless in the meantime all money due under memorandum of mortgage number C970922 is paid, possession of the premises described in folio of the register volume 91917 folio 16 is to be given by the respondent Susan Burge to the applicant Commonwealth Bank of Australia (A.B.N. 48 123 123 124) on or before the 150th day following service of this order by postage or otherwise and where service is effected by post the order shall be deemed to have been served on the second business day following the date of posting.

49    Order 1 made by his Honour on that day related to the Abbott Street property. Order 2 related to the Elphin Road property. A sealed copy of the 22 June 2015 Orders was served upon Mr Lester on 2 July 2015.

50    The effect of the 22 June 2015 Orders was that the applicant was given time to repay her debt to the CBA, failing which the bank was to be given possession of the Abbott Street property and Elphin Road property. The time allowed to the applicant under the 22 June 2015 Orders in respect of the Abbott Street property was 90 days after service of the orders and the time allowed to the applicant in respect of the Elphin Road property was 150 days after service of those orders. That is a period of approximately five months.

51    As I have already noted, the 22 June 2015 Orders were served on the applicant on 2 July 2015. Thus, under the 22 June 2015 Orders, the applicant had until the end of November 2015 to pay the CBA in full, failing which the CBA would be entitled to possession of both properties.

52    On 30 July 2015, in proceeding SC 532 of 2015, the applicant filed an Amended Statement of Claim in which she claimed that both credit contracts were void.

53    In her Amended Statement of Claim filed on 30 July 2015 in proceeding SC 532 of 2015, the applicant alleged that:

(a)    In respect of the 2008 loan, the CBA had conducted an assessment of the applicant and Mr Foggo’s capacity to afford and repay the loan and, in doing so, had placed too much emphasis on the assets and liabilities of the applicant and Mr Foggo and had failed to consider their income and expenses;

(b)    In respect of the 2010 loan, the CBA had made similar errors of assessment; and

(c)    As a result, the CBA was guilty of unconscionable conduct vis-a-vis the applicant and Mr Foggo in breach of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), in breach of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) and in breach of RG 209 being a Regulatory Guide published by the Australian Securities and Investments Commission (ASIC) under the ASIC Act.

54    The nub of the applicant’s complaint as reflected in her Amended Statement of Claim in proceeding SC 532 of 2015 was that the CBA had failed properly to assess the capacity of the applicant and her former husband to meet her ongoing commitments under the two loans which she and Mr Foggo had entered into with the CBA in that the CBA focussed too much on her and her former husband’s asset position and not sufficiently on their cash flow. She claimed that the CBA was engaged in asset lending and that both loans were always unrepayable except through the forced sale of the applicant’s assets.

55    On 7 October 2015, the CBA obtained a Writ of Possession in respect of the Abbott Street property. On 6 November 2015, the CBA took possession of that property.

56    Mr Lester continued to represent the applicant until late October 2015.

57    On 28 January 2016, the applicant filed an Interlocutory Application in proceeding SC 532 of 2015 in which she sought the following relief:

1.    Pursuant to rule 887 of the Supreme Court Rules 2000 (Tas) the defendant is restrained from selling the property of 15 Abbott Street, East Launceston in Tasmania and is further restrained from taking possession and selling the property at 127 Elphin Road, Launceston in Tasmania until further order of this Court or agreement between the plaintiff and the defendant;

2.    Any further orders that seem appropriate to the Court.

58    The interlocutory relief sought by the applicant by means of her Interlocutory Application filed on 28 January 2016 was, in substance, an application to prevent the CBA from taking any further steps to sell either the Abbott Street property or the Elphin Road property.

59    The injunction application which the applicant had filed on 28 January 2016 came before the Court on 10 February 2016. On that day, there was a lengthy hearing at which the applicant gave evidence. Ultimately, the applicant’s application was dismissed and the question of costs was reserved. That application was heard by Holt AsJ. His Honour gave reasons for the decision which he made on that occasion. The applicant included those reasons in her principal affidavit at pages 351 to 355.

60    On 12 February 2016, the Abbott Street property was sold at auction.

61    On 26 February 2016, the CBA took possession of the Elphin Road property by executing a Writ of Possession which it had previously obtained from the Supreme Court of Tasmania.

62    On 7 March 2016, a preliminary question came on for trial before Pearce J in the Supreme Court of Tasmania in proceeding SC 532 of 2015. On that occasion, the entirety of that proceeding was resolved by agreement between the parties. As a result, on the same day, his Honour directed that there be judgment for the CBA in the action with costs to be taxed if not agreed. The settlement agreement reached between the parties on 7 March 2016 was recorded in a Deed of Settlement and Release dated that day (7 March Deed). That Deed was in the following terms:

THIS DEED OF SETTLEMENT AND RELEASE is made the 7th day of March 2016 BETWEEN Commonwealth Bank of Australia (ABN 48 123 123 124) (“the Bank”) AND SUSAN BURGE (“Burge”)

WHEREAS the parties are in dispute in respect of Burge’s alleged liabilities to the Bank and the Bank’s alleged liabilities to Burge.

Without any admission of liability by either party the parties have agreed to fully and finally settle all disputes between them on the terms of settlement set out in this deed of settlement and release.

1.    Burge is to consent to a direction or order that judgment be entered for the Bank in Supreme Court of Tasmania action No. 532 of 2015 (“the action”) together with costs:

(a)    That are agreed in the sum of $50,000.00 in the event that payment is made in accordance with clause 2 hereof; or

(b)    Are to be taxed in the event that it is not.

2.    On or before 18 April 2016 Burge will pay to the Bank the sum of $452,469.71 (which sum will include $50,000.00 for the agreed costs of the action) less the net proceeds of sale of the property known as 15 Abbott Street East Launceston.

3.    If Burge does not pay the amount referred to in clause 2 on or before 18 April 2016 then the Bank will exercise its power of sale in respect of the property known as 127 Elphin Road Newstead and the amount that Burge is to pay to the Bank will become:

•    $402,469.71 (together with the defendant’s costs of the action as taxed or agreed, and the defendant’s costs of Supreme Court proceedings No. 256 of 2015 in accordance with the loan agreement and the mortgage);

•    Together with interest on the sum of $335,628.37 at the rate of 5.87% per annum from 8 March 2016 until payment; and

•    Together with the costs of the sale in accordance with the loan agreement and mortgage in respect of that property;

•    Less the proceeds of the sale of the properties known as 15 Abbott Street East Launceston and 127 Elphin Road Newstead.

4.    The Bank undertakes that it will not take any steps to have judgment entered pursuant to the direction or order referred to in clause 1 before 18 April 2016.

5.    Burge releases and forever discharges the Bank from all and any liability past, present or future and from all claims suits demands actions or proceedings arising out of or connected with:

(a)    Any and all loan accounts conducted with the Bank by her either alone or in conjunction with any other person or entity at any time at or before the date of this deed;

(b)    Any and all securities given to the Bank by her either alone or in conjunction with any other person or entity at any time at or before the date of this deed.

6.    Burge will withdraw any complaint made to the Finance Ombudsman Service, the OAIC, ASIC, Tasmania Police, the Australian Federal Police and any State or Federal authority and will not make any further complaint to any State or Federal authority in respect of any of the matters referred to in clause 5.

7.    The Bank and Burge will keep the provisions of this deed of settlement and release and all negotiations resulting in the deed confidential save as either may be required to disclose such matters to their legal or financial advisers or as otherwise required by law.

8.    Neither Burge nor the Bank will disparage or denigrate the other.

9.    The laws of Tasmania govern this deed and each party agrees to submit to the jurisdiction of the Courts of Tasmania.

63    Clause 3 of the 7 March Deed expressly provided that, if the applicant did not pay the amount due as specified in cl 2 thereof on or before 18 April 2016, then the CBA would exercise its power of sale in respect of the Elphin Road property and the debt due to the CBA would be quantified at the figure provided for in cl 3.

64    The applicant was represented at the hearing on 7 March 2016 by experienced Senior Counsel, Mr James Kewley SC, of the Melbourne Bar. Mr Kewley SC appeared before the Court when the matter was called on in the morning and secured an order that the matter stand down while the parties conducted negotiations. Mr Kewley SC then endeavoured to negotiate a settlement on behalf of the applicant with the legal representatives of the CBA. Those negotiations continued throughout the day and ultimately resulted in the settlement reflected in the 7 March Deed.

65    The applicant suggested in her principal affidavit that Senior Counsel for the CBA had “threatened” her by telling her more than once during the course of the day on 7 March 2016 that her case was a “precedent case” and that the CBA would not spare any expense in an endeavour to win it. She also made allegations against her own Counsel suggesting that, late in the day, he threatened to withdraw leaving her with no representation if she did not agree to the settlement embodied in the 7 March Deed.

66    Ultimately, in her principal affidavit, the applicant suggested that she had executed the 7 March Deed under duress.

67    The moneys required to be paid under the 7 March Deed were not paid in accordance with the terms of that Deed. Accordingly, on 20 April 2016, judgment was entered for the CBA against the applicant in proceeding SC 532 of 2015. The applicant was also ordered to pay the CBA’s costs as taxed if not agreed. These steps were taken pursuant to the terms of the 7 March Deed (cl 1 to cl 4 thereof) and were a mere formality when it is remembered that Pearce J had already directed the entry of judgment on 7 March 2016.

68    It is apparent from the above account of the dealings between the parties that, from early 2016 at the latest, the CBA had made clear that, if the amount due to it from the applicant was not repaid in full within the timeframes agreed with the applicant, it would take possession of the Elphin Road property and sell that property at a time and in a manner to be determined by the CBA. It seems to me that it made that position very plain. However, whether it spelled out its intention to sell in express terms or not, it certainly made clear that it intended to take possession of that property. One of the natural incidents of a secured creditor taking possession of real property comprising or forming part of its security is the real potential for that creditor to exercise its power of sale under its security. After all, in most cases, why else would the secured creditor take possession of its security property? In addition, it seems to me to be quite clear that, at all times from early 2016, at the latest, the applicant understood that there was a real possibility that the CBA would take steps to take possession of and sell the Elphin Road property. This is demonstrated by the terms of the Interlocutory Application which she filed on 28 January 2016.

69    On 4 July 2016, solicitors then acting for the applicant sent an email to the solicitors acting for the CBA. That email was in the following terms:

Mr. Patrick Lunn

Simmons Wolfhagen Lawyers

168 Collins Street

Hobart TAS 7000

Dear Sir,

We refer to the action pending by Commonwealth Bank of Australia (whom we understand you act for) in respect of the threatened sale of real and personal property of Ms. Susan Burge as from tomorrow. We act for her in respect of that issue.

Given the circumstances, Ms. Burge requires your client’s undertaking by midday tomorrow, 5 July 2016 to stay the sale of her property for a period of one calendar month to allow Ms. Burge to commence proceedings in the Federal Court of Australia to set aside the security and loan contract arrangements in respect of the property your client is pursuing on the grounds of arguable contraventions of the National Credit Code and the Australian Securities and Investment Commission Act 2001. We note that unless such undertaking is given by the time stipulated, Ms. Burge intends on filing an urgent injunction application in the Federal Court of Australia to prevent your client from taking action against her property.

We await your confirmation.

Yours faithfully

(Emphasis in original.)

70    That email demonstrates that, at least as far as the applicant was concerned, as at 4 July 2016, she understood that the CBA was threatening to sell both her Elphin Road property and her personal property kept there as early as the very next day, 5 July 2016.

71    By email sent in response, the CBA declined to accede to the applicant’s request to provide an undertaking not to sell the Elphin Road property for one month. In that email, the CBA said:

Dear Sir,

This is an open e-mail.

We refer to your e-mail set out below.

We attach for your reference:

1.    a copy of sealed consent orders that were made by the Supreme Court of Tasmania in Hobart Registry matter no. 256 of 2015 on 22 June 2015 when your client appeared in Court with her former legal practitioner Mr Fred Lester from the law firm Clarke and Gee;

2.    a copy of an amended statement of claim filed on behalf of your client in Supreme Court of Tasmania Launceston District Registry Action No. 532 of 2015 on 30 July 2015 together with our client’s defence to the amended statement of claim filed 31 August 2015;

3.    a copy of deed of settlement and release executed by your client on 7 March 2016; and

4.    a copy of a consent judgment that was entered in Supreme Court of Tasmania Launceston District Registry Action No. 532 of 2015 on 20 April 2016 upon the consent of the parties and by order of a judge that was made in the presence of your client and her former barrister Mr James Kewley on 7 March 2016.

You may or may not also be aware that a previous application made by your client to attempt to restrain our client from exercising its power of sale in respect of this property was heard and refused by the Supreme Court of Tasmania on 10 February 2016.

Our client declines your client’s request to provide her with the undertaking that she seeks.

We have instructions to accept service of any proceedings your client chooses to commence against our client.

Kindly advise the basis upon which you say that your client has any extant cause of action against our client.

Yours faithfully

72    No steps were taken by the applicant on or after 5 July 2016 to restrain the CBA from selling the Elphin Road property until 6 September 2016 when she made an application to a single justice of the High Court of Australia in which she sought Constitutional Writ relief, the effect of which was to restrain the auction of the Elphin Road property which was then programmed to take place on 23 September 2016. That application was heard on 15 September 2016 by Gordon J and was dismissed with costs on that day.

73    On 16 September 2016, the applicant commenced two separate sets of proceedings in the Launceston District Registry of the Supreme Court of Tasmania (matters No 2717 of 2016 and No 2720 of 2016). In the first of those matters, the applicant sought an extension of the time within which to appeal the 22 June 2015 Orders and the entry of judgment made in proceeding SC 532 of 2015 on 20 April 2016. She claimed identical relief in proceeding No 2720 of 2016. By the time that these two matters came on for hearing, the applicant was also seeking an extension of the time within which to appeal the order made by Holt AsJ on 22 June 2015 striking out her Statement of Claim in proceeding SC 532 of 2015, notwithstanding that his Honour had given her leave to replead, a leave of which she had availed herself on 30 July 2015 when she filed her Amended Statement of Claim in that proceeding. She also sought, once again, interlocutory injunctive relief in relation to the sale or the completion of the sale of the Elphin Road property.

74    Chief Justice Blow, the Chief Justice of Tasmania, heard all of the applicant’s applications in proceedings No 2717 of 2016 and No 2720 of 2016 on 4 November 2016 and delivered judgment in respect of those applications on 10 November 2016 (Burge v Commonwealth Bank of Australia [2016] TASSC 60) (Burge No 3). The Chief Justice refused all of the applications for extensions of time which the applicant then had extant in the Supreme Court of Tasmania. He also dismissed the applicant’s claims for interlocutory relief. At [1]–[27], his Honour traversed the relevant facts.

75    After referring to various sections of the Supreme Court Civil Procedure Act 1932 (Tas) and, in particular, to s 191B(1) of that Act, the Chief Justice said (at [37]–[46]):

That subsection makes it clear that “any order … made … by the Associate Judge … is as valid and binding on … all parties concerned as an order … made … by a judge sitting in chambers or in court”. It follows that a consent order made by the Associate Judge is just as binding on all parties concerned as a consent order made by a judge. By virtue of s 43(a), a consent order made by a judge is so binding that no party may appeal to the Full Court from it. It follows that the possession orders made by Holt AsJ on 22 June 2015 were so binding that neither party may appeal to the Full Court from them.

When there is a right of appeal from a consent order, the approach to be taken by the appellate court depends on whether the order evidences a contract between the parties to the proceedings. When that is the situation, the appeal cannot succeed unless there are grounds that warrant interference by the Court with the parties’ contract: Huddersfield Banking Co Limited v Henry Lister & Son Limited [1895] 2 Ch 273 at 280; Harvey v Phillips (1956) 95 CLR 235 at 243-244; Harris v Caladine (1991) 172 CLR 84 at 104-105; Sky-Ridge Pty Ltd v Burlington Pty Ltd (1995) 4 Tas R 485 at 493-495.

In my view the orders for possession made by Holt AsJ on 22 June 2015 evidenced a contract made between the parties. When an order for the possession of premises is made in favour of a mortgagee under s 146 of the Land Titles Act, s 146(5) empowers this Court to order that possession be given by the mortgagor to the applicant “on or before such day, not being less than 4 weeks from the day of hearing, as the Supreme Court thinks fit to specify, unless within that period all the money due and costs are paid”. It is clear that it was agreed between the parties that, in consideration of the applicant consenting to orders for the possession of the two properties, the CBA would consent to a 90-day order in respect of the Abbott Street property and a 150-day order in respect of the Elphin Road property. It follows that an appeal from either of the possession orders could succeed only on a basis upon which a contract might be impugned, such as fraud, duress, undue influence, or unconscionable conduct.

Similarly, it is clear from the terms of the Deed of Settlement and Release that the consent judgment of 20 April 2016 was the product of a contract made between the applicant and the CBA.

It follows that, if I am wrong about the applicability of s 43(a), appeals in relation to the possession orders and the consent judgment could only succeed on a basis that would warrant interference with a contract.

Economic duress

Economic duress is a recognised category of duress which, when established, will result in a contract being voidable. McHugh JA (as he then was) explained the law in relation to economic duress in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40. His Honour said at 46:

“The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.”

The applicant has sworn an affidavit in which she explains her reasons for consenting to the various orders from which she now wishes to appeal. There is nothing in that affidavit about the orders of 22 June 2015 to suggest that her will might have been overborne by economic duress on that day. She explained that her counsel advised her that day that the only way forward was to negotiate a longer sale period, and that she hoped to have her complaints about the CBA’s conduct dealt with in her action, 532/2015. There is nothing in her affidavit to suggest that she might have given in to illegitimate pressure from the CBA or its representatives on that day.

Her description of the events that led up to the signing of the Deed of Settlement and Release on 7 March 2016 contains evidence of the application of pressure by representatives of the CBA. Her evidence as to their conduct can be summarised as follows:

•    Initially Pearce J adjourned the trial so that the parties could conduct a round table conference. At that conference, the CBA legal team refused to mediate or discuss “any matter other than the Trial we were there for”.

•    Mr Lunn, junior counsel for the CBA, stated that the applicant owed an amount that was more than $30,000 greater than figures she had been provided with. However, after discussions in her absence, her counsel later advised her that he had caused that additional sum to “go away”.

•    The CBA’s representatives refused to explain to her how the amount in the deed had been worked out. However the amount ($402,469.71) was lower than the figure that the CBA initially seemed to want (over $450,000).

•    Mr Jackson SC, senior counsel for the CBA, said words to the effect that hers was a precedent case; that the CBA and "the Banking Association" had stated that they would throw any amount of money at her trial to win it; that even if she won the CBA would appeal; and that the CBA would continue to appeal until it won.

•    Later, after her counsel had threatened to withdraw, Mr Jackson SC said words to the effect of, “I am sorry that you are the precedent case but we are just trying to save you money as the bank and the Banking Association have access to endless amounts of funds to throw at this matter. If you don’t sign the deed you will basically have nothing left because we would continue to appeal until we won.”

If those threats were made, I do not think that they were improper or illegitimate. Obviously the applicant was in a position of extreme financial disadvantage. However the representatives of the CBA went no further than to threaten to exercise, and keep on exercising, the CBA’s rights as a litigant.

If I am wrong as to the effect of s 43(a) of the Supreme Court Civil Procedure Act, appeals from the possession orders and the consent judgment would be unlikely to succeed because it is unlikely that the applicant would be able to establish economic duress, as distinct from the exertion of legitimate pressure in pre-contractual negotiations.

76    The Chief Justice then addressed other arguments raised by Counsel for the applicant at [47]–[49]. His Honour described those arguments as “untenable”.

77    Finally, at [50]–[54], his Honour dealt with the question of delay and prejudice to the CBA. In conclusion, at [55]–[61], the Chief Justice said:

The orders for possession of the Abbott Street and Elphin Road properties were consent orders. The judgment of 20 April 2016 was a consent judgment. Because of the provisions of ss 43(a) and 191B(1) of the Supreme Court Civil Procedure Act, there was no right of appeal to the Full Court from any of those orders. There is therefore no time limit in relation to them that can be extended.

If I am wrong as to that in relation to any or all of those orders, then I think extensions of time should be refused because each consent order was entered into pursuant to a contract, and there appears to be insufficient prospects of any such contract being avoided on the basis of economic duress or any other basis, and also because the applicant does not have a good explanation for her delay.

An extension of time in relation to the possession order relating to the Abbott Street property would be futile because the purchaser of that property must now have an indefeasible title to it.

An extension of time in relation to the order striking out the statement of claim in action 532/2015 would be futile because that action was dismissed on 20 April 2016, and cannot be revived.

For these reasons I have decided to dismiss the applications for every extension of time. As counsel for the applicant conceded, it would not be appropriate to grant either of her injunction applications in these circumstances.

In par 2 of her interlocutory application of 3 November 2016, the applicant sought “the right to a fair trial”. That part of her application must fail because she has no pending proceedings in this Court.

The two originating applications (2717/2016 and 2720/2016), and the interlocutory applications filed on 16 September 2016 and 3 November 2016 are all dismissed.

78    As a result of the judgment of Blow CJ in Burge No 3, no further avenue of appeal in the Supreme Court of Tasmania in respect of the 22 June 2015 Orders or the 20 April 2016 judgment is available to the applicant. Those orders and that judgment therefore remain in place and have effect as between the applicant and the CBA according to law. In addition, in the course of dealing with the contractual basis for the 20 April 2016 judgment, ie the 7 March Deed, Blow CJ made a finding that, even if he were to accept the applicant’s evidence as to the circumstances in which she came to sign the 7 March Deed and to agree to settle her claims against the CBA, that evidence did not establish that she signed that Deed and agreed to that settlement under duress. His Honour took the view that whatever pressure was applied to the applicant by the CBA and its legal representatives on that day was not improper or illegitimate.

The Applicant’s Case

79    In pars 1 to 4 of her Originating Application, the applicant claims declaratory relief against the CBA.

80    In par 1, she claims a declaration that the first credit contract and the mortgage which she and her former husband gave over the Reuben Court property are both void and of no effect or, alternatively, should be set aside in equity and under Pt 2, Div 2 of the ASIC Act. She says that that contract and mortgage were induced by misleading and deceptive conduct on the part of the CBA in contravention of s 12DA of the ASIC Act, the Uniform Consumer Credit Code (UCCC) and RG209 in that, prior to entering into the said contract and mortgage, Mr Hager, an employee of the CBA, represented to the applicant and her former husband that, in the CBA’s assessment, the loan to be made under the first credit contract was not unsuitable for the financial purposes of the applicant and her business, Crafty Critters Pty Ltd, which was not, in fact, the case. She also claims that, by making that representation, the CBA engaged in unconscionable conduct and thus contravened s 12CB of the ASIC Act, the UCCC and RG209. She argues that, to the knowledge of the CBA, the first credit contract was not able to be repaid except by the forced sale of the applicant’s assets. She claims that this asset lending practice was a breach of cl 2 and cl 25 of the Code of Banking Practice which she says was incorporated into the first credit contract.

81    In par 2, the applicant claims a declaration that the second credit contract and the two mortgages which secured the loan made thereunder (viz the mortgages over the Abbott Street property and the Elphin Road property) are also void and of no effect and liable to be set aside in equity, under Pt 2 Div 2 of the ASIC Act, under s 912A and s 1041H of the Corporations Act 2001 (Cth) (Corporations Act), under Pt 4, Div 1 and Div 3 of the National Credit Code (NCC) and under Ch 3 of the NCCP Act. She relies upon an alleged representation made by Mr Hager prior to the second credit contact being entered into and an additional alleged representation made by another CBA employee, Mr Ralston, to the same effect as the representation allegedly made by Mr Hager in connection with the first credit contract. She relies upon the same contentions as she makes in respect of the first credit contract as well as arguments that the CBA refused, in bad faith, to co-operate with the applicant to procure a refinancing of the amount lent under the second credit contract and that the CBA sold its securities in an unreasonable order.

82    In par 3, the applicant claims a declaration that the 22 June 2015 Orders are void and of no effect or should be set aside in equity or under the same statutory provisions relied upon by her in support of declaration 2.

83    In support of declaration 3, the applicant relies upon mistake, misrepresentation on the part of Mr Lunn, undue pressure applied to her by Mr Lunn, by Holt AsJ, and by the applicant’s own solicitor, Mr Lester, and her own mental illness.

84    In par 4, the applicant claims a declaration that the 7 March Deed is void and of no effect and should be set aside. In support of that claim, the applicant makes similar contentions to those made in respect of declaration 3. On this occasion, the applicant attributes the undue pressure which was allegedly applied to her to pressure applied to her by Senior Counsel for the CBA.

85    The claims for prerogative writs against the Supreme Court of Tasmania, its Judges and its Associate Judges made in pars 5, 6, 7 and 8 of the Originating Application were all dismissed on 22 September 2016.

86    The claims for prerogative writs against the CBA made in par 6 and par 10 of the Originating Application are misconceived and need not be considered further.

87    In par 9 of the Originating Application, the applicant claims a writ of mandamus against FOS requiring it to reconsider the remedy stated in the Final Determination. The applicant’s complaint is that FOS failed to exercise its powers to restore her to the position she had been in prior to the making of the first credit contract.

88    No claim for damages is made against FOS in the Originating Application although, during argument, Counsel for the applicant foreshadowed an amendment application in order to raise such a claim. Counsel did not articulate the basis of this foreshadowed claim.

89    In par 10, the applicant claims a mandatory injunction requiring the CBA to consider or reconsider the hardship notices purportedly served by her upon the CBA in August 2014, February 2015 and July 2016.

90    In par 11 and par 12, the applicant claims injunctions against the CBA restraining the CBA from taking possession of and selling the Elphin Road property or the applicant’s personal property kept at that property and from seeking to enforce the 22 June 2015 Orders or the judgment entered in its favour on 20 April 2016.

91    In par 13 and par 14, the applicant claims damages against the CBA for trespass in respect of its taking possession of the Elphin Road property and for trespass upon and conversion of her personal property kept there.

92    The applicant also claims damages against the CBA for the statutory contraventions specified in the Originating Application; for the sale of the Reuben Court and Abbott Street properties at an undervalue; for trespassing upon and unlawfully seizing possession of the Elphin Road property; and, on her own behalf and on behalf of her daughter, for pain, humiliation, hurt and suffering.

The Relevant Principles (Summary Dismissal)

93    Section 31A provides as follows:

31A     Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(5)    This section does not apply to criminal proceedings.

94    In Spencer v Commonwealth of Australia (2010) 241 CLR 118, the High Court considered the meaning and effect of s 31A. The following principles may be gleaned from that decision:

(a)    Section 31A authorises summary disposition on a variety of bases (at 131 [22] per French CJ and Gummow J). At [22], their Honours also said:

… It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(b)    The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to O 11 r 16 of the Federal Court Rules (now r 16.21 FCR) (at 131 [23] per French CJ and Gummow J);

(c)    The power to terminate proceedings summarily should be exercised with caution (at 131–132 [24] per French CJ and Gummow J). At 131–132 [24], their Honours also said:

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–130 per Barwick CJ) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99. See also Webster v Lampard (1993) 177 CLR 598 at 602–603 per Mason CJ, Deane and Dawson JJ):

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575–576 [57]) which included the following:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of “real prospect of success” was variously equated to whether the plaintiff “could succeed at a trial”, whether there was a “triable issue” and whether there was the “least doubt”: at [44] per Lord Clarke of Stone-cum-Ebony JSC; at 541 [119] per Baroness Hale of Richmond JSC; at 544 [133] per Lord Brown of Eaton-under-Heywood JSC; at 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

(d)    There must be a high degree of certainty that the applicant/plaintiff cannot succeed if the proceeding is allowed to go to trial in the ordinary way (Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 275 [46] per Gleeson CJ, Gummow, Hayne and Crennan JJ).

(e)    At 132 [25]–[26], French CJ and Gummow J also said:

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant (see above at [21]). The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.

(f)    Section 31A requires that there be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success” (per Hayne, Crennan, Kiefel and Bell JJ at 138–139 [50]–[51]);

(g)    The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail (per Hayne, Crennan, Kiefel and Bell JJ at 139 [52]). At 139 [52]–[53], their Honours went on to say:

… it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners ((1949) 78 CLR 62) and General Steel Industries Inc v Commissioner for Railways (NSW) ((1964) 112 CLR 125).

(h)    Section 31A requires a different inquiry to be undertaken from that undertaken under earlier different regimes (per Hayne, Crennan, Kiefel and Bell JJ at 140 [56]);

(i)    The expression “no reasonable prospect” should be understood in the manner explained by Hayne, Crennan, Kiefel and Bell JJ in Spencer as follows (at 141 [58]–[60]):

How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes (Weiss v The Queen (2005) 224 CLR 300 at 312–318 [31]–[47]), as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

95    I intend to apply the above principles to the determination of the present application.

96    Rule 26.01 FCR is in the following terms:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

(2)    The application must be accompanied by an affidavit stating:

(a)    the grounds of the application; and

(b)    the facts and circumstances relied on to support those grounds.

(3)    The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.

(4)    If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

(5)    If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:

(a)    continue to prosecute the cross-claim against the applicant or other party; and

(b)    apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross-claim is determined.

Note:    See also section 31A of the Act.

97    Here, both the CBA and FOS rely upon subrules (a)–(d) of r 26.01(1).

Consideration

The Parties’ Arguments

98    Senior Counsel for the CBA submitted that the 22 June 2015 Orders and the 20 April 2016 judgment in the Supreme Court of Tasmania are valid and binding until set aside on appeal or varied or stayed in accordance with recognised principles (New South Wales v Kable (2013) 252 CLR 118 at 132–134 [28]–[36]; and at 140–141 [54]–[57]).

99    He then submitted that whatever basis the applicant had to resist the orders for possession of the Abbott Street property and the Elphin Road property was merged in the 22 June 2015 Orders. For the same reason, any and all rights which the applicant had to seek to set aside either or both the credit contracts and to claim damages or compensation in respect of the CBA’s conduct in relation to her at the time when each of the loans was made merged in the 7 March Deed and the 20 April 2016 judgment.

100    Counsel for FOS submitted that decisions of FOS are not susceptible to judicial review (see Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456 (Mickovski) at 466–467 [32]–[33]). He argued that the power of FOS over its members is derived solely from contract and that it does not exercise any public functions. FOS does not exercise a public duty or a function involving a public element when its jurisdiction is consensually invoked by the parties to a complaint. FOS is not the Commonwealth nor is it an officer of the Commonwealth. It is a public company limited by guarantee.

101    It was then put on behalf of FOS that, because the only relief sought by the applicant against FOS is a writ of mandamus (par 9 of the Originating Application), the applicant’s case against FOS is bound to fail and should be summarily dismissed.

102    It was also contended on behalf of FOS that, in the circumstances of the present case, on 19 September 2014 (at the latest), the applicant accepted the Final Determination and subsequently took the benefit of it.

103    FOS argued that the Final Determination constituted a new charter of rights and obligations as between the applicant and the CBA and that there has been a merger of the applicant’s extant rights in the 22 June 2015 Orders and the 20 April 2016 judgment.

104    According to FOS, the matters referred to in [102] and [103] above provide additional reasons for summarily dismissing the applicant’s claim against FOS.

105    The applicant’s Written Submission filed in opposition to the summary dismissal applications (Outline dated 9 December 2016) was very brief. In that Outline, it was submitted on behalf of the applicant that she had an arguable case for relief which should be permitted to go to trial. It was submitted that claims along the lines of her claims that the two loan products made available to her were not suitable were not only arguable but had succeeded in other cases.

106    Counsel for the applicant made oral submissions in which he endeavoured to meet the contentions of the CBA and FOS with more detailed arguments than he had made in his written Outline.

107    Counsel for the applicant made the following oral submissions:

(a)    Upon the true construction of the 7 March Deed, the applicant did not release the damages or compensation claims which she now makes in this Court. In addition, the Deed did not constitute an accord and satisfaction but was only a conditional accord. For the 20 April 2016 judgment to be truly a consent judgment, the applicant had to take the further step after 7 March 2016 of providing her consent and she never did so. Also, there was an implied term in the 7 March Deed requiring the CBA to co-operate with the applicant to assist her to secure refinancing which term was breached. One of the consequences of that breach is that the CBA is prevented from relying upon the 7 March Deed.

(b)    All the applicant has to show in order to defeat the summary dismissal applications is more than a fanciful prospect of success in respect of her claims. She can do so.

(c)    Ultimately, the outcome of the applicant’s case depends upon the testimony of the applicant and that of the CBA’s witnesses, in respect of which there is likely to be a contest. The applicant alleges that she was misled, and deliberately so, as to the suitability for her purposes of the loan products made available to her.

(d)    There are likely to be contested questions of fact in respect of the applicant’s case that the CBA breached its duties as mortgagee in possession in respect of the Abbott Street property and the Elphin Road property.

(e)    There will be contested questions of fact in relation to the applicant’s contention that the CBA was guilty of unconscionable conduct towards her when it assessed her as capable of repaying her debts to the CBA without resorting to the forced sale of her properties.

(f)    The CBA misled FOS by telling it that the first loan was a refinancing when it was not.

Decision

108    The starting point of my consideration of the present applications is the Final Determination which was delivered on 13 August 2014 and subsequently corrected on 30 September 2014.

109    By the applicant’s complaint to FOS, FOS was required to adjudicate upon the applicant’s allegations of maladministration made against the CBA and the propriety of its conduct as mortgagee in possession of the Reuben Court property. At the heart of the applicant’s maladministration allegations was the assertion that the CBA had engaged in asset lending and had not made a proper assessment of the applicant’s capacity to service the loans by paying appropriate regard to the true income of the applicant and Mr Foggo. It was because the CBA should not have been satisfied that the applicant and Mr Foggo could service the loans that it would have been misleading for the CBA to have represented to the applicant (as she claims it did) that either loan was suitable for the applicant’s purposes.

110    FOS performed the function which the parties asked it to perform. Its Determination resulted in a very favourable outcome for the applicant.

111    The facts which I have set out at [35]–[38] above justify a conclusion that the applicant accepted the Final Determination fully appreciating the consequences of doing so. The problem may be analysed as follows:

(a)    The applicant entered the FOS process voluntarily and submitted her grievances with the CBA to adjudication by FOS upon the terms contained in the FOS Terms of Reference operative at the time. In this way, she made a tripartite contract with FOS and the CBA, the terms of which are found in those Terms of Reference;

(b)    The CBA was a participating financial institution in the FOS process in accordance with those Terms of Reference;

(c)    FOS delivered its Final Determination thus triggering a requirement on the part of the applicant either to accept or to reject its Determination. If the applicant accepted the Final Determination, both the applicant and the CBA would be bound by it;

(d)    The applicant signified her acceptance of the Final Determination by sending to FOS an unqualified acceptance on 19 September 2014. She may have accepted it earlier (on 12 September 2014) when she sent her acceptance with the words “under duress” added next to her signature but I need not resolve that question. The device or stratagem of leaving the words “under duress” on the Acceptance but masking those words before scanning and sending her signed Acceptance Form to FOS could not and did not have the effect of rendering the applicant’s acceptance inoperative or of no effect. She had been told on 16 September 2014 that she could do only one of two things: Either accept the Final Determination or reject it. It was made clear to the applicant that she could not have it both ways by seeking to argue that her acceptance was not binding because it had been signed under duress while at the very same time seeking to take the benefit of the debt reduction and interest concessions provided to her under the Final Determination. Understandably, she chose to accept the Final Determination and did so when she sent the signed Acceptance Form to FOS on 19 September 2014. The fact that this was outside the 30 day period specified in cl 8.7(b) of the FOS Terms of Reference (as to which, see [119] below) is immaterial. In the circumstances, both FOS and the CBA waived the 30 day requirement and regarded the applicant’s acceptance of the Final Determination as valid and effective.

112    Sections 912A(1)(g) and 912A(2)(b) of the Corporations Act require a financial services licensee to be a member of an external dispute resolution scheme approved by ASIC which covers complaints made against the licensee by retail clients in connection with the provision of those financial services under that licensee’s licence.

113    FOS operated such a scheme approved by ASIC. Its relevant Terms of Reference were tendered in evidence before me by the applicant.

114    Clause 1.1 of the Terms of Reference identified the purpose of the scheme as follows:

The Service is conducted by FOS and has been established as an independent forum to resolve Disputes between Applicants and Financial Services Providers. The Service is free of charge for the Applicants. The costs of the Service are met by the Financial Services Providers.

115    The term “Dispute” was defined in the Terms of Reference to mean an expression of dissatisfaction with a Financial Services Provider (see cl 20.1). The types of Dispute which FOS might hear were set out in cl 4.2. They relevantly concerned Disputes that arose from or relate to “the provision of a Financial Service by the Financial Services Provider to the Applicant”.

116    Clause 8.1 of the Terms of Reference provided that FOS was not bound by any legal rule of evidence. Clause 8.2 set out how FOS would decide a Dispute and provided as follows:

Subject to paragraph 8.1, when deciding a Dispute and whether a remedy should be provided in accordance with paragraph 9, FOS will do what in its opinion is fair in all the circumstances, having regard to each of the following:

a)    legal principles;

b)    applicable industry codes or guidance as to practice;

c)    good industry practice; and

d)    previous relevant decisions of FOS or a Predecessor Scheme (although FOS will not be bound by these).

117    Clause 8.5 provided for a process of deciding a dispute by Recommendation (which Recommendation a Financial Services Provider can either choose to accept or reject). Clause 8.6, however, provided as follows:

Notwithstanding paragraph 8.5, FOS may proceed to a Determination by either an Ombudsman or by a FOS Panel (as FOS decides is appropriate) without a Recommendation first being made. This expedited process will be followed if FOS considers that this would be appropriate in the circumstances. If so, FOS must advise the parties of this intended course of action and must not make the Determination without first giving the parties a reasonable opportunity to make submissions and provide information about the matters in dispute.

118    When a FOS applicant complains to FOS, he or she enters into a tripartite contract with FOS and the relevant financial services provider, the terms of which are set out in the FOS Terms of Reference.

119    Clauses 8.7 and 8.8 of the FOS Terms of Reference provided:

8.7    Recommendations and determinations

a)    Each Recommendation and Determination:

(i)    must be in writing;

(ii)    may either reach:

(A)    a conclusion about the merits of the Dispute; or

(B)    the view that, given the procedures adopted by FOS, it would not be appropriate for FOS to reach any conclusion as to the merits of the Dispute:

(iii)    must set out reasons for any conclusion about the merits of a Dispute or view of the kind referred to in paragraph 8.7a)(ii)(B);

(iv)    must specify any remedy, determined in accordance with paragraph 9, that FOS considers fair and appropriate; and

(v)    must be provided to all parties to the Dispute.

b)    A Determination is a final decision and is binding upon the Financial Services Provider if the Applicant accepts the Determination within 30 days of receiving the Determination.

8.8    Applicant acceptance of a Recommendation or Determination

In order to accept a Recommendation or a Determination, the Applicant must provide the Financial Services Provider (if the Financial Services Provider so requests) with a binding release of the Financial Services Provider from liability in respect of the matters resolved by the Recommendation or determination. The release must be for the full value of the claim the subject of the Dispute, even if this amount exceeds the amount of the remedy decided upon by FOS. The release shall be effective from the date on which the Financial Services Provider fulfils all of its obligations under the Recommendation or Determination.

120    Clause 8.9 provided that, if an applicant does not accept a Determination, the applicant is not bound by the Determination and may bring an action in the courts or take any other available action against the Financial Services Provider. In effect, if an applicant to FOS does not accept the FOS Determination, he or she will be free to pursue all rights available to him or her including all avenues of redress previously available to him or her prior to entering the FOS process.

121    The choice which confronts every applicant to FOS when FOS delivers its Determination is between accepting the Determination and replacing all of his or her rights previously available in relation to the subject matter of the Determination with the new rights and entitlements laid down in the Determination, on the one hand, and rejecting the Determination, on the other hand, thereby preserving all of those prior rights.

122    Clause 8.8 of the Terms of Reference required a FOS applicant to provide a binding release in respect of the matters resolved by the Final Determination if the Financial Services Provider so requested. The CBA did not request such a release in the present case. In the present case, the applicant signed the Acceptance Form and sent it to FOS. That was all that she was required to do in order to signify her acceptance of the Final Determination. The text set out on that form included the following:

The Financial Ombudsman Service has issued a Determination dated 13 August 2014 in response to the Dispute.

I accept the terms of the Determination in full and final settlement of all matters between myself and Commonwealth Bank of Australia arising out of the Dispute.

123    The word “Dispute” when used in the Acceptance Form is given content by reference to the dispute notified to FOS by the applicant (as to which, see [20], [21] and [24] above).

124    The CBA then performed all of its obligations as required under the Final Determination and the applicant accepted all of the benefits provided to her by that Determination.

125    Clause 8.7(b) of the FOS Terms of Reference provided that the Final Determination is “… a final decision and binding upon …” the Financial Services Provider if the FOS applicant accepts it within 30 days of receiving the Determination.

126    In Mickovski, at 468 [40], the Court noted that the use of the word “final” in relation to a determination made by a contractually authorised dispute resolution panel very often meant that the decision made by such a body resolving a particular dispute was not subject to appeal or review.

127    At 468 [41], the Court continued:

As was stated by Isaacs and Rich JJ in Commonwealth v Limerick Steamship Co Ltd [1924) 35 CLR 69 at 88–9], the word “final” in relation to a determination derives its meaning of being “the last” from the context in which it appears. Hence, where the context is one of further examination or review by a superior court, the word imports the meaning that there is to be no appeal. Accordingly, where a statute provides that a decision is “final”, it is ordinarily taken to preclude a right of appeal except in cases where the tribunal has acted without jurisdiction or otherwise such that its decision is a nullity [South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 at 370 (PC); Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ]. Similarly, where parties agree that a determination is to be “final”, they are taken to have agreed that the determination will not be subject to review unless affected by fraud or dishonesty or lack of good faith or (by analogy with jurisdictional error) unless it is otherwise apparent that the determination has not been carried out in accordance with the agreement [Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 336 per McHugh JA; Holt v Cox (1997) 23 ACSR 590 at 597 per Mason P; AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 at [51]–[52]].

128    In my view, upon the true construction of the FOS Terms of Reference, a FOS Determination which is accepted by the relevant FOS applicant is both final and binding upon both the FOS applicant and the Financial Services Provider. For the reasons submitted by Counsel for FOS and explained by the Victorian Court of Appeal in Mickovski at 466–467 [32]–[33], such a Determination is not susceptible to judicial review. That conclusion is sufficient to dispose of the applicant’s case against FOS. It follows that the submissions made by Counsel for FOS which I have summarised at [100] and [101] above are correct and I accept them.

129    Here, the applicant chose to accept the Final Determination and thereby became bound by it as a matter of contract. Alternatively, after accepting the Final Determination, in the circumstances of this case, the applicant was prevented by an estoppel by convention from arguing that she had rights against the CBA which were different from the rights set out in the Final Determination insofar as the subject matter of that Determination was concerned.

130    In light of subsequent events, which include the making of the 22 June 2015 Orders, the entry into the 7 March Deed and the formal entry of the 20 April 2016 judgment, even if mandamus were available against FOS, the grant of such relief would be futile because all of the applicant’s alleged rights have now merged in or been destroyed by those Orders, that Deed and that judgment. To the extent that there has not been a merger or destruction of those rights, the applicant is prevented by the principles explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 from now litigating claims which she could have, and should have, raised in the Supreme Court of Tasmania.

131    I now turn to deal with the CBA’s and FOS’s arguments that the judgments and orders of the Supreme Court of Tasmania have the effect of preventing the applicant from litigating any of the claims which show now seeks to advance in this Court.

132    The 22 June 2015 Orders determined the rights of the CBA to possession of both the Abbott Street property and the Elphin Road property. Chief Justice Blow, in his judgment in Burge No 3, decided that no appeal from those orders can now be brought. Accordingly, those orders remain in full force and effect and bind both the applicant and the CBA (see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 285 and 295; and Indrisie v General Credits (1984) 5 FCR 582).

133    The 7 March Deed also creates an “insurmountable hurdle” for the applicant (to use the words of Gordon J in the High Court at p 33 ll 1537–1538 of the Transcript of the hearing in that Court held on 15 September 2016).

134    The 7 March Deed was entered into in circumstances where:

(a)    The Final Determination had been accepted by the applicant;

(b)    The CBA had taken possession of the Abbott Street property and sold it as mortgagee in possession;

(c)    On 10 February 2016, the applicant had failed to secure an injunction preventing the CBA from taking possession of the Elphin Road property;

(d)    The CBA had taken possession of the Elphin Road property and was taking steps to sell it also; and

(e)    The CBA was pressing in proceeding SC 532 of 2015 for a determination of a preliminary point which would have had the effect of terminating the applicant’s claims for damages against the CBA.

135    The 7 March Deed is described as a “Deed of Settlement and Release”. In the second paragraph, there is recorded the accepted fact that the parties have agreed “… to fully and finally settle all disputes between them on the terms of settlement …” set out in the Deed. The subject matter of that settlement is described as the applicant’s “alleged liabilities to the [CBA] and “the CBA’s alleged liabilities to [the applicant]”.

136    Insofar as the latter phrase is concerned, the CBA’s alleged liabilities to the applicant were adumbrated in her Amended Statement of Claim filed on 30 July 2015 in proceeding SC 532 of 2015 and also found in the claims which she had made in Court on 10 February 2016.

137    Upon the true construction of the 7 March Deed, the parties’ obligations were:

(a)    The applicant immediately consented to a direction or order that judgment against her in proceeding SC 532 of 2015 and to an order for costs against her quantified at $50,000 if her remaining debt to the CBA was paid in accordance with cl 2 of the Deed but otherwise to be taxed if the cl 2 payment was not paid by the specified date (cl 1).

(b)    The applicant promised to pay to the CBA by 18 April 2016 the sum of $452,469.71 (which sum included the $50,000 for costs referred in in cl 1) less the net proceeds of sale of the Abbott Street property (cl 2). The cl 2 sum was a compromise figure.

(c)    In the event that the applicant did not pay the cl 2 amount by 18 April 2016, the provisions of cl 3 became operative.

(d)    The CBA promised not to take any steps before 18 April 2016 to have the judgment provided for in cl 1 formally entered (cl 4).

(e)    The applicant provided the release set out in cl 5. That release was to be immediately operative. It covered all of the claims now made in this Court in the Originating Application filed in this proceeding (cl 5). Although the words in the introductory part of cl 5 are general, the subject matter of the release is sufficiently specific to avoid the problems that sometimes are caused by very broad general releases, as to which see Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112.

(f)    Clauses 6, 7 and 8 addressed matters which were ancillary to the principal obligations under the Deed provided for in cll 1 to 5.

138    There is nothing conditional or executory about the release provided for in cl 5 of the 7 March Deed. The applicant provided that release as the price for securing a compromise of the amount of her debt payable to the CBA and as the price for being given more time to repay that debt (a period of 42 days from 7 March 2016). It constitutes an accord and satisfaction. As a consequence of its execution, whatever claims the applicant still had against the CBA were destroyed and replaced with the rights and entitlements which the 7 March Deed gave to her.

139    I do not think that any implied term of co-operation in the 7 March Deed (as explained by Mason J (as his Honour then was) in the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607) extended to obliging the CBA to co-operate with the applicant in her efforts to refinance her debt to the CBA. Refinancing is not mentioned in the 7 March Deed at all. In any event, even if the alleged implied term was a term of the 7 March Deed, there is no admissible or probative evidence in any of the applicant’s affidavits or otherwise before the Court which could be regarded as evidence that the CBA breached that implied term. Notwithstanding that the applicant purported to deal with her attempts to refinance in the period following execution of the 7 March Deed, she did not address the relevant period (7 March 2016 to 18 April 2016) and did no more than make unsupported assertions of interference by the CBA in her efforts to refinance in respect of the period after 18 April 2016.

140    Nor do I think that the 7 March Deed contemplated or required that judgment could not be entered in accordance with cl 1 unless and until some further consent to the entry of such judgment was provided by the applicant to the CBA post-execution of the Deed. The 7 March Deed was intended to record, once and for all, the final settlement of all disputes between the applicant and the CBA concerning the two loan transactions in question.

141    The entry of judgment by consent in favour of the CBA against the applicant in proceeding SC 532 of 2015 gave effect to cl 1 of the 7 March Deed and was clearly contemplated by the parties to that Deed. Upon the entry of that judgment, such rights as the applicant still had to bring and maintain the claims which she had made in proceeding SC 532 of 2015 were merged in that judgment.

142    In my view, by the 7 March Deed, the applicant released the CBA from all of the claims which she now seeks to make in this proceeding.

143    The applicant suggests that she can avoid the consequences of having executed the 7 March Deed by asserting that she executed that Deed under duress or under economic duress. That claim, such as it is, has been determined against her by the judgment of Chief Justice Blow in Burge No 3.

144    I should add that, even if this last proposition is not correct, I would regard the applicant’s case that she executed the 7 March Deed under duress as a case which she has no reasonable prospect of successfully prosecuting.

145    In Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, McHugh JA (as his Honour then was), with whom Samuels and Mahoney JJA agreed, said at 45D–F:

Duress:

Upon these facts I think that Yeldham J was correct in holding that Crescendo had not made out a case of economic duress. The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 384 per Lord Diplock. As his Lordship pointed out, the consequence is that the “consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate on his mind” (at 384). In the same case Lord Scarman declared (at 400) that the authorities show that there are two elements in the realm of duress: (a) pressure amounting to compulsion of the will of the victim and (b) the illegitimacy of the pressure exerted. “There must be pressure”, said Lord Scarman “the practical effect of which is compulsion or the absence of choice”.

The reference in Universe Tankships Inc of Monrovia v International Transport Workers Federation and other cases to compulsion “of the will” of the victim is unfortunate. They appear to have overlooked that in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, a case concerned with duress as a defence to a criminal proceeding, the House of Lords rejected the notion that duress is concerned with overbearing the will of the accused. The Law Lords were unanimous in coming to the conclusion, perhaps best expressed (at 695) in the speech of Lord Simon of Glaisdale “that duress is not inconsistent with act and will, the will being deflected, not destroyed”. Indeed, if the true basis of duress is that the will is overborne, a contract entered into under duress should be void. Yet the accepted doctrine is that the contract is merely voidable.

146    At 46A–B, his Honour continued:

The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.

147    In Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd (2003) 134 FCR 522, Lander J (with whom Hill and Jacobson JJ agreed) at 543 [151] said:

However, in case this matter has to be reconsidered, it would be appropriate to consider the other element of the claim where a party is relying upon a claim of economic duress. The party must not only establish that the pressure induced the party to enter into the contract but also that the pressure was not legitimate. An unlawful threat would be illegitimate. So also would pressure that amounted to unconscionable conduct: Crescendo Management Pty Ltd v Westpac Banking Corporation at 45–46.

148    Thus, if the applicant’s challenge to the 7 March Deed is to be successful, she would have to persuade the Court at a trial that the pressure which was applied to her was illegitimate within the meaning of the above authorities. Taking her case at its highest (as to which see the facts which I have summarised at [64] and [65] above), the “threats” or “pressure” applied to the applicant by Senior Counsel for the CBA did not go further than what was legitimate in all of the circumstances of the case. Taking the applicant’s evidence at its highest, in my view, she has no reasonable prospect of successfully prosecuting a challenge to the 7 March Deed based upon duress or economic duress.

149    The consent judgment of 20 April 2016 destroyed the claims which the applicant had made in proceeding SC 532 of 2015. If, contrary to the views which I have expressed, the claims now being advanced in this proceeding extend beyond those which were actually advanced in proceeding SC 532 of 2015, I am of the opinion that those claims which are now being advanced which were not specifically made in proceeding SC 532 of 2015 are nonetheless also destroyed by the consent judgment of 20 April 2016. That is because the factual matrix underpinning the claims presently being advanced is substantially the same as the factual matrix which underpinned the claims advanced in proceeding SC 532 of 2015 with the consequence that the only real (arguable) difference between what was pleaded in that proceeding and what is now raised in this proceeding is that, in this proceeding, new ways of looking at the facts and additional causes of action are relied upon. In my judgment, it is not open to the applicant to refashion the same essential complaints in that way when they were all disposed by the 20 April 2016 consent judgment. The Court must look at the substance of the matter.

150    In Port of Melbourne Authority v Anshun Pty Ltd at 598, Gibbs CJ, Mason and Aickin JJ approved the statement of Sir James Wigram VC in Henderson v Henderson (1843) 67 ER 313 at 319 where his Lordship said:

where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

151    All of the causes of action now relied upon were available in March 2016 and also in July 2015 when the applicant filed her Amended Statement of Claim in proceeding SC 532 of 2015. If those causes of action remained viable after the Final Determination by FOS had been made, they all properly belonged to the subject of proceeding SC 532 of 2015. The applicant should have brought forward those causes of action then and cannot do so now.

152    The 22 June 2015 Orders declared the CBA’s entitlement to take possession of the Elphin Road property. It took possession of that property on 26 February 2016. It did so lawfully. CBA did not, therefore, commit a trespass when it took possession of that property and is not liable to the applicant for damages for trespass.

153    The CBA removed the applicant’s personal property from the Elphin Road property in order to enable that property to be sold. It then placed most of that property into storage. The CBA was entitled to take these steps under its mortgage over the Elphin Road property. At all relevant times, the CBA was willing to transfer to the applicant control of her personal property provided she paid the storage charges. At no time did the CBA act in a way which could be construed as depriving the applicant of possession of her personal property or depriving her of the ownership of that property. The applicant has no reasonable prospect of successfully pursuing the CBA for damages for trespass to or conversion of her property.

Recusal

154    At the commencement of the hearings before me on 19 December 2016, Counsel for the applicant said the following (at Transcript p 2 ll 41–47):

Your Honour, we have a preliminary application that your Honour recuse yourself today, on this ground, that at paragraph 61 and following of the earlier judgment, your Honour made observations both as to the merits of the case as to the credit of the applicant and as to critical issues relating to delay which indicate that, within the meaning of the High Court’s decision in Laurie’s case and in the authorities to which it refers, there’s a possibility, from our point of view, that your Honour is – or may have a fixed view. If the court pleases.

155    Counsel for the applicant did not elaborate the basis upon which his client sought that I recuse myself from hearing the matters which were before the Court on 19 December 2016.

156    As I mentioned at [10] above, I refused that application.

157    At [61] in Burge No 1, I said:

As the above chronology plainly indicates, the applicant should be taken to have been well aware at all times since about late 2015 that the CBA was taking steps to place itself in a position where it could sell the Elphin Road property. No doubt that is why she made the application which she made on 28 January 2016 and no doubt that is why she sought more time to bring her loan arrangements into order as reflected in the Deed of 7 March 2016.

158    Paragraph 61 in that judgment was in that part of the judgment where I addressed the balance of convenience and justice in respect of the applicant’s application for an interlocutory injunction restraining the sale of the Elphin Road property. In particular, [61] was one of a series of paragraphs in which I addressed the question of delay on the part of the applicant in bringing her application for injunctive relief and her failure adequately to explain that delay. In that part of my judgment in Burge No 1, I did not comment at all on what Counsel has described as “the merits of the case”. Further, at no stage did I make any credit findings in respect of the applicant in Burge No 1.

159    However, at [55], I also said:

It seems to me that when one considers the history of the matter and the way in which the applicant has formulated the serious question to be tried, she has very weak prospects indeed of successfully having the mortgage over the Elphin Road property set aside or declared void.

160    The observation which I made at [55] followed upon the analysis which I had undertaken at [47]–[54].

161    A judge should not sit to hear a case if, in all the circumstances, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question which he or she is required to decide (Johnson v Johnson (2000) 201 CLR 488 at 492–493 [11]–[12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293–294 per Mason, Murphy, Brennan, Deane and Dawson JJ; and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345 [6]–[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

162    The test for apprehension of bias involves a consideration of possibilities, not probabilities, although the possibilities must be real and not remote (Ebner at 345 [7]; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) (2009) 174 FCR 175 at 199 [71] per Greenwood J and at 211–212 [121] per Besanko J).

163    The application of the test requires two things. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner at 345 [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 445 [63] per Gummow ACJ, Hayne, Crennan and Bell JJ; Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) 199 [71] per Greenwood J and at 211–212 [121] per Besanko J).

164    The reasonable or fair-minded observer is not taken to have a knowledge of the law nor should there be attributed to her or him an awareness of the judicial process that ordinary experience suggests not to be the case (Vakauta v Kelly (1989) 167 CLR 568 at 585 per Toohey J). The reasonable hypothetical observer understands that a judge is professional but is not presumed to reject the possibility of pre-judgment. Were it otherwise, apprehension of bias would never arise in the case of the professional judge (British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at 333 [144] per Heydon, Kiefel and Bell JJ).

165    The lay observer is not informed by a detailed knowledge of the law nor is he or she invested with “undue knowledge and sophistication” or “highly specialised knowledge” (Johnson v Johnson at 502–503 [42] and 506 [49] per Kirby J; and Cadbury Schweppes Pty Ltd v Darrel-Lea Chocolate Shops Pty Ltd (No 2) at 200–201 [74] per Greenwood J). Nevertheless, the fictitious bystander is not “wholly uninformed and uninstructed about the law in general or the issues to be decided” (Johnson v Johnson at 508–509 [53] per Kirby J). The hypothetical observer is assumed to know the issues to be decided and the circumstances in which they came to be decided.

166    Exceptions to the apprehension of bias rule include necessity, waiver and special circumstances (British American Tobacco Australia Services Ltd v Laurie at 333 [146]).

167    The pre-judgment principle is one basis upon which a reasonable apprehension of bias may be found to exist. If a fair-minded person reasonably apprehends or suspects that the Tribunal has pre-judged the case, that observer cannot have confidence in the decision (Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263). This notion is based upon the fundamental principle that justice must be seen to be done as well as be done.

168    The relevant test is whether a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of pre-judgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view (Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25] per Kenny, Tracey and Middleton JJ). Reasonable apprehension of bias by reason of pre-judgment must be firmly established (Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J). A conclusion of reasonable apprehension of bias is not to be drawn lightly (Vakauta v Kelly at 584–585).

169    The applicant submitted that one instance in which a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment is if the judge hearing the matter has previously expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact (Livesey v New South Wales Bar Association at 300).

170    There is nothing in [61] and the succeeding paragraphs in Burge No 1 which might lead a reasonable observer to conclude that I might not bring to my decision in respect of the summary dismissal applications made by the CBA and FOS an impartial mind. Nor, in my view, was there anything in [55] which might have that effect. In addition, the only aspect of the claims made by the applicant in the present proceeding which was considered by me in Burge No 1 was whether the applicant had a prima facie case to have the Elphin Road mortgage set aside. I did not consider any of the other claims made by the applicant in this proceeding.

171    In this Court, the applicant was represented by the same Counsel at all times from 21 September 2016 to 19 December 2016. The matter which was specified as the basis for the applicant’s recusal application is contained in the ex tempore Reasons for Judgment which I delivered on 22 September 2016. The applicant must be taken to have been well aware of the views which I had expressed in that judgment at all times from 22 September 2016 to 19 December 2016. Yet, no application that I recuse myself from any hearings in the matter was made until the morning of 19 December 2016, immediately before the commencement of the hearing of the summary dismissal applications. The applicant should have made her recusal application soon after 22 September 2016. She did not do so. Instead, she sat by and allowed me to continue to case manage this proceeding and to fix the hearing of the first and third respondents’ summary dismissal applications before me on 19 December 2016. By that conduct, she waived any right which she had to object to my hearing those applications. In any event, had I acceded to the applicant’s recusal application, the summary dismissal applications would have had to have been adjourned and reallocated to another judge, resulting in a significant delay in the disposition of this matter.

172    The applicant should have made her recusal application soon after 22 September 2016 and long before 19 December 2016. The CBA and FOS were entitled to have their applications dealt with promptly. Even if I had thought that there was any substance in the applicant’s application that I recuse myself, I would not have acceded to that application because, in my judgment, by the time that that application was made, it was necessary that I hear the summary dismissal applications given that the only alternative was to adjourn those applications and reallocate them to another judge.

Conclusions

173    I am satisfied that the applicant has no reasonable prospect of successfully prosecuting any of the claims which she makes in this proceeding and that it should be summarily dismissed pursuant to s 31A(2) of the FCA Act. A second source of power to dismiss the proceeding on the same ground is r 26.01(1)(a) FCR.

174    In addition, the repeated attempts by the applicant to litigate or relitigate matters which have already been resolved either by agreement or by orders of the Supreme Court of Tasmania or by judgment in that Court constitutes an abuse of process. This proceeding should also be dismissed on that ground (as to which, see r 26.01(1)(d) FCR).

175    Accordingly, I propose to summarily dismiss the whole of this proceeding as against both the CBA and FOS.

176    The applicant should pay the costs of both of those parties.

177    There will be orders accordingly.

Associate:

Dated:    13 April 2017