Federal Court of Australia

Morros v Commonwealth Bank of Australia [2025] FCA 800

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s application for summary judgment against the respondent is dismissed.

2. Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth), the originating application is summarily dismissed.

3. The applicant is to pay the respondent’s costs of and incidental to the originating application in a fixed amount to be determined by a Registrar.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1 The parties in this matter each seek an order for summary judgment against the other.  For the reasons that follow, there will be an order that the originating application be summarily dismissed.

2 In 2012, the applicant entered into a Loan Agreement with the respondent, Commonwealth Bank of Australia (CBA) secured against Land situated in Port Lincoln in South Australia.  His obligations under the Loan Agreement were secured by registered Mortgage.

3 On 7 March 2024 CBA commenced proceedings in the Supreme Court of South Australia (CIV-24-002165) seeking an order for possession of the Land under Pt XVII of the Real Property Act 1886 (SA) founded on the applicant’s default of his obligations under the Loan Agreement.  Associate Justice Bochner made a Possession Order in CBA’s favour on 29 May 2024.  A Warrant for possession was issued on 1 October 2024 under s 11(1) of the Enforcement of Judgments Act 1991 (SA).  The Warrant has not been successfully executed.  The applicant brought an interlocutory application in the Supreme Court challenging, among other things, the Possession Order and the Warrant.  That interlocutory application was dismissed on 6 November 2024.  The applicant then applied to the Supreme Court for an extension of time in which to appeal from the Possession Order, together with an application for an extension of time and leave to appeal from the order dismissing his interlocutory application.  Justice B Doyle concluded that the applicant did not have reasonably arguable prospects of successfully challenging the Possession Order, the Warrant or the dismissal of the interlocutory application and so dismissed his claims for relief: Morros v Commonwealth Bank of Australia [2025] SASC 40.  The applicant has not exercised any rights of appeal from that judgment.

4 The applicant commenced this proceeding on 18 May 2025, joining CBA as the respondent.  By his originating application, he seeks orders “under section 39B of the Judiciary Act 1903” as follows:

1.    An injunction restraining the Respondents [sic] from taking possession of the Applicant’s property;

2.    A declaration that the mortgage contract is void or unenforceable due to fraud, non-disclosure, and lack of consideration;

3.    An order compelling the production of the original loan documents and full transactional history;

4.    Any further equitable relief the Court deems appropriate.

5 In one of several supporting affidavits, the applicant asserts that the matter “invokes equity jurisdiction under section 39B of the Judiciary Act 1903 to prevent irreparable harm”.

6 The Court has before it two interlocutory applications: CBA’s interlocutory application filed on 26 June 2025 seeking an order summarily dismissing the originating application, and the applicant’s application (made orally and in the body of his affidavits) for an order entering summary judgment in his favour.

7 The parties consented to orders dispensing with the requirements that their respective applications be served no later than 14 days before the hearing.

The Originating Application

8 The applicant is self-represented.  His originating application is supported by affidavits or like documents lodged on 18 May 2025, 13 June 2025, 20 June 2025, 25 June 2025, 27 June 2025, 1 July 2025, and 7 July 2025.  So far as it can be discerned from that material (as generously interpreted in the context of his submissions), the applicant’s case includes the following allegations of fact and law:

(1) the Mortgage and the Loan Agreement were “monetised” by CBA when it “transferred” them into a trust structure known as “Medallion Trust Series 2013-1”;

(2) by those transactions, CBA used the Mortgage and the Loan Agreement as assets to secure borrowings for fundraising or otherwise to raise additional capital;

(3) those transactions had the consequence that there was no consideration for the Loan Agreement, including because CBA had used it as security to raise funds sufficient for the discharge of the loan (and so had “double dipped”);

(4) CBA is no longer in possession of original documents necessary for it to enforce the rights of a mortgagee, and has otherwise transferred liability for the debt without the applicant’s consent;

(5) the “securitisation” of the Mortgage and Loan Agreement was concealed from the applicant, thus amounting to fraud and breach of fiduciary duties at general law, as well as unconscionable and misleading and deceptive conduct in contravention of the Australian Consumer Law (ACL), forming Sch 2 of the Competition and Consumer Act 2010 (Cth);

(6) CBA has otherwise pledged its commercial assets, collateral and interest to the Federal Reserve Bank of New York and by doing so has placed itself “under foreign control and outside the lawful jurisdiction of the Commonwealth of Australia Constitution Act 1901”;

(7) he has served upon CBA promissory notes sufficient to discharge his obligations under the Loan Agreement;

(8) the Loan Agreement was split into two parts, with the second part not being subject to any default, and secured against a different property;

(9) the Land is now valued significantly more than the amount borrowed under the Loan Agreement;

(10) the Supreme Court had wrongly denied him orders for discovery relating to internal banking documents that he had since been able to obtain by his own efforts and expense;

(11) he was denied procedural fairness in the Supreme Court (including the appellate proceeding) both on questions of substance and on the question of whether or not there should be an order for discovery in relation to original contract documents;

(12) evidence about CBA’s dealings concerning the Mortgage and Loan Agreement was obtained after the Supreme Court proceedings following a “forensic mortgage audit” carried out at the applicant’s expense, and the resulting audit reports constitute new evidence;

(13) this Court’s jurisdiction to resolve the controversy is conferred under s 39B of the Judiciary Act 1903 (Cth), it being a matter arising under a law of the Commonwealth, namely the ACL; and

(14) damages in favour of the applicant should be awarded in the amount of $2.89 million.

The power to give summary judgment

9 Rule 26.01 of the Federal Court Rules 2011 (Cth) (upon which CBA relies) provides that 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 prosect of successfully defending the proceeding or part of the proceeding.

10 CBA relies on each of the grounds in r 26.01(a) to (d).

11 I proceed on the basis that the applicant’s summary judgment application invokes r 26.01(e), as well as s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) as an alternate source of power.  It relevantly provides:

(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.

12 As I explained in Rana v Department of Defence [2018] FCA 1642, at [81], this Court’s implied power to prevent an abuse of process is equivalent to the power of courts of unlimited jurisdiction, described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529.  Gaudron J described the power in Ridgeway v The Queen (1995) 184 CLR 19, as follows (at 74 — 75):

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’.  This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process.  Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard.  That is necessarily so.  Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.  That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning.  As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.

(footnotes omitted)

13 An abuse of power may occur where a proceeding is an attempt to relitigate matters in a way that offends the finality principle underpinning doctrines such as res judicata, issue estoppel and Anshun estoppel.  As explained by Besanko J in McDonald v State of South Australia [2011] FCA 297 (McDonald v SA), the doctrines have a number of technical requirements, and this Court’s power to protect against an abuse of process is not limited to cases in which those technical requirements are made out (at [36] – [41]).  See also Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 (at [59]).  In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81 – 423, Giles CJ identified some of the guiding considerations when identifying an abuse of process founded on an improper attempt to relitigate issues as follows (at [64,089]):

(a)    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)    the opportunity available and taken to fully litigate the issue;

(c)    the terms and finality of the finding as to the issue;

(d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

14 As to the question of whether a party has no reasonable prospect of successfully prosecuting or defending a proceeding or part of a proceeding, there will be cases in which a claim or cause of action (or defence) is so obviously untenable that its continuation may readily be characterised as vexatious, or an abuse of process, or both: Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ (at 393); Cox v Journeaux (No 2) (1935) 52 CLR 713, Dixon J (as his Honour then was) (at 720).

15 The principles are otherwise comprehensively discussed by Rares J in Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) [2006] FCA 1352; 236 ALR 720 (at [31] – [48]), as conveniently summarised by Jacobson J in Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 (at [30]), as follows:

* In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

* There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

* Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

* Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

Submissions

16 CBA’s application is supported by an affidavit of Ms Martha McGarrigan sworn on 25 June 2025.  Among other things, it annexes copies of the Loan Agreement, default notices, the Certificate of Title relating to the Land (recording the registration of the Mortgage) and records of outcome in the Supreme Court.

17 CBA’s primary submission was that the applicant has no reasonable prospect of obtaining the relief sought on the originating application.  It submitted that the Possession Order remained in force as an order of the Supreme Court and that such an order is valid and enforceable unless set aside: Cameron v Cole (1944) 68 CLR 571 (at 590).  It submitted that this Court does not have appellate or supervisory powers with respect to judgments or orders of the Supreme Court, whether under s 39B of the Judiciary Act or at all, other than in limited circumstances that do not apply here.  Accordingly, it submitted, the Court could not issue an injunction restraining CBA from enforcing the Possession Order.

18 CBA further submitted that the issues sought to be raised by the applicant were issues that have either been conclusively determined in the Supreme Court or that otherwise could have been agitated by the applicant in the Supreme Court proceedings.  It submits that even if this Court had jurisdiction to set aside a judgment or order of the Supreme Court, the doctrines of res judicata and issue estoppel would operate to deny the applicant relief.

19 CBA acknowledged that the discrete allegation that it used secured loan agreements as assets against which it raised capital or obtained finance was not raised in the Supreme Court proceedings and did not adduce evidence going to the fact of the securitisation arrangements.  Its submissions on that topic were twofold.  It submitted that if it be assumed that it entered into transactions of the kind described by the applicant, no legal consequences would follow.  It submitted that the applicant had no reasonable prospect of demonstrating that the arrangement constituted fraud, that it was otherwise unlawful or that it had the consequence that no consideration was given for its transactions with the applicant. It further submitted that to the extent that issues relating to those transactions were raised, it was an abuse of process to commence the present proceeding in circumstances where the only correct avenues of redress were the exhaustion of rights of appeal from the judgments and orders of the Supreme Court or an application to re-open a Supreme Court proceeding on the basis that the proceeding was affected by fraud.

20 The applicant appeared self-represented in the proceeding.  He did not deny the existence of the Possession Order, but he did make submissions to the effect that he did not recognise its legitimacy.  His submissions explaining the factual and legal foundation of his case are as summarised at [8] above. Among other things, he submitted that CBA’s lawyers and the Supreme Court had wrongly characterised his arguments as “pseudo law” and that this Court may award summary judgment in the exercise of jurisdiction conferred under the ACL.  He submitted that he had commenced a proceeding in this Court because he had not received a just hearing in the Supreme Court and because he had more recently obtained information about the “securitisation” of the Loan Agreement and Mortgage and CBA’s dealings with the Federal Reserve Bank of New York.

Consideration

21 Both summary judgment applications may be considered together.

22 This Court has such jurisdiction as is vested in it by laws made by the Parliament: FCA Act, s 19(1).  The ACL is such a law, as is the Judiciary Act.

23 In addition, to the extent that the Constitution permits, the Court has jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which its jurisdiction has been invoked: FCA Act, s 32.

24 In matters falling within its jurisdiction, the Court has power to make orders of such kinds and to direct the issue of writs of such kinds as it thinks appropriate: FCA Act, s 23.  Section 22 of the FCA Act provides:

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

25 The applicant is correct in his submission that an action seeking relief under the ACL for unconscionable conduct and misleading and deceptive conduct may be commenced in this Court and that, in such a proceeding, the Court would have jurisdiction to hear claims founded in equity in the resolution of the whole of the controversy.

26 However, in the present case, a controversy concerning CBA’s entitlement to possession of the Land has been tried in the Supreme Court and the Possession Order remains in force.  The order is founded upon a finding that the Loan Agreement and Mortgage are binding and enforceable instruments.  It would offend the finality principle for this Court to adjudicate a controversy going to the same subject matter, irrespective of whether the technical requirements for issue estoppel, Anshun estoppel or res judicata are fulfilled.  As Besanko J explained in McDonald v SA (at [41]):

The doctrines set out above have a number of technical requirements.  The Court’s jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of is not limited to cases where those technical requirements can be made out: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ (‘Walton’); Rana v University of South Australia [2008] FCA 1903 at [43].  The operation of the doctrines of res judicata, issue estoppel and Anshun estoppel is subsumed into the Federal Court’s implied incidental power to prevent abuse of its processes: Spalla at [59].  Justice French said in Spalla (at [66]) that:

the doctrines of res judicata, issue estoppel, and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined.

In Walton Mason CJ, Deane and Dawson JJ said (at 393) that:

… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

27 On a proper application of those principles, the applicant does not have reasonable prospects of obtaining an injunction restraining CBA from doing what the Possession Order otherwise authorises it to do.

28 This Court does not have the power to set aside an order of the Supreme Court in any event.  Such an order may be set aside in the exercise of jurisdiction within that court’s appellate structure (of which this Court forms no part) or on an application for judicial review invoking the High Court’s jurisdiction under s 75(v) of the Constitution.  Such an order may also be set aside in the original jurisdiction of the Supreme Court in limited circumstances of the kind discussed by the High Court in Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) (2018) 264 CLR 165.  See also: Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 (French J, as his Honour then was).

29 More broadly, I am satisfied that this proceeding constitutes an attempt by the applicant to re-agitate issues that have either been judicially determined by the Supreme Court or that could have been raised, or that could yet be raised within the appropriate appellate and review structures of that Court.  The orders and judgments of the Supreme Court reveal that the applicant in the proceedings before Bochner AsJ and B Doyle J relied on substantially the same arguments as those now sought to be raised here, including a contention that CBA had provided no consideration for the transactions, his contention that CBA could not establish its entitlement to possession without production of an original “wet ink” instrument and his subsequent reliance upon promissory notes. The applicant’s plea of fresh evidence is a plea that may be raised within the same appellate and review structure. I am satisfied that this proceeding constitutes an abuse of process of the kind described by Giles CJ in Stenhouse.  See also: McDonald v Colbran [2019] FCA 1937 (Charlesworth J).

30 I have not overlooked the applicant’s allegation that CBA is “under foreign control and outside the lawful jurisdiction of the Commonwealth of Australia Constitution Act 1901”.

31 In accordance with the principles stated in Boston, I will proceed on the basis that the applicant has some prospect of proving that CBA has entered into securitisation arrangements deposed to in his affidavits, including the assertion that CBA has granted security interests in all of its assets to a foreign corporation. However, the applicant has not demonstrated any relevant legal consequence that might follow from that state of affairs capable of supporting the claims for relief specified in his originating application.  To the extent that he intended to submit that CBA could not obtain relief in an Australian Court under the Constitution because of its dealings with the Federal Reserve Bank of New York, the contention is untenable and no proper occasion arises for the issue of any notice under s 78B of the Judiciary Act.

32 As French J said in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 (at [14]):

Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be.  If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation – Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998).

33 I have concluded that the originating application constitutes an abuse of the processes of this Court on several discrete bases.  Each of them is sufficient to support an order for summary judgment in CBA’s favour.

34 In light of that conclusion, I will dismiss the applicant’s summary judgment application as it has not been demonstrated that CBA has no reasonable prospect of defending the applicant’s claims.

35 There will be an order that the applicant pay CBA’s costs of and incidental to the originating application in an amount to be fixed.

Associate:

Dated:    15 July 2025