Abram v National Australia Bank Ltd

Supreme Court of NSW|2001-10-18|Before: Taylor AJ, Young J, Santow J

Introduction 1 HIS HONOUR: Mr Abram is in dispute with the National Australia Bank Limited. This is an application for review of a decision of Assistant Registrar Howe who, on 28 May 2001, dismissed Mr Abram's application to amend his statement of claim. The application is brought pursuant to Part 61 r 3 of the Supreme Court Rules. The plaintiff claims damages against the bank on a number of bases. Essentially he sues on the basis that the bank maliciously and without reasonable and probable cause commenced a malicious prosecution of the plaintiff, charging the plaintiff and another with criminal contempt of Court. Mr Abram's dispute with the bank is long and complex. I will outline the background to the claim and the present application.

The bank sought, by notice of motion, to have Mr Abram's statement of claim filed in May 2000 struck-out. That application was heard before Master Malpass in February 2001. The Master described the statement of claim as "indefensible". He said: It is in breach of the rules and does not disclose a reasonable cause of action. The defendants are entitled to have it struck-out and I propose to make that order. 8 In giving his reasons the Master said: I think justice is best served if he [the plaintiff] is given one final opportunity to apply for leave to amend. I think it appropriate that he should be given a reasonable amount of time to prepare a pleading and prepare himself for what may be the last attempt available to him to get his pleadings in order. 9 The Master also stated that Mr Abram ought seek advice as to whether his claim against the second defendant, the State of New South Wales, could succeed. 10 In the result the Master dismissed the plaintiff's application for default judgment and struck-out the statement of claim. He directed that the matter be placed in the Registrar's list on 23 April 2001 for the purposes of dealing with any application for leave to amend which Mr Abram wished to make on that day, together with dealing with the balance of the two notices of motion which had been filed by the defendants. 11 The Master then directed the plaintiff to serve the proposed amended statement of claim on each defendant on or before 4.00pm on 9 April 2001. He ordered the plaintiff pay the costs to date of the notices of motion filed respectively by each defendant. 12 The Assistant Registrar's Decision

The Assistant Registrar refused the application for leave to amend the statement of claim, drafted pursuant to the orders of Master Malpass. The Registrar found "it has been demonstrated by the defendants that the proposed amendment " is obviously futile" and the new claim is "hopeless". Therefore, I do not intend to grant leave to the plaintiff to file an amended statement of claim in the matter sought." 13 The Registrar then made the following orders:

The application for leave to amend the statement of claim is dismissed. 2. The plaintiff is to pay the defendants' costs of the application. 3. The plaintiff is to pay the first defendant's costs of its motion of 13 September 2000 and the second defendant's costs of its motion of 26 September 2000. The proceedings to remain struck-out. 14 The present application

In addition to the review of the Assistant Registrar's decision the applicant also seeks an extension of time for filing an appeal against the orders made by Master Malpass. 15 Alternatively, the applicant seeks leave to file an amended statement of claim in the proceedings pursuant to Part 20 rule 1 of the Supreme Court Rules. 16 Discussion of the present Application

By Part 61 r 3, I am empowered to review the order of the Registrar and make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.

I bear in mind the following when considering the application. The power to review is not an appeal and is not subject to the limitations expressed in s 75A of the Act. It follows that it is not necessary to demonstrate that there has been an error of principle in the order under review. QBE Workers Compensation (NSW) Pty Ltd v Sports Pit Pty Ltd (in liq) (SC(NSW), Young J, 4286/93, 12 October 1995, unreported). However, the consideration that the Registrar's decision involves a matter of practice and procedure remains a relevant consideration in the exercise of the power of review. Accordingly, it is proper for the court to exhibit a natural inhibition against the unrestrained substitution of the reviewing court's views for those of the original tribunal: Westpac Banking Corp v Amemond Pty Ltd, (SC (NSW) unreported, Santow J , 28/10/94). 17 There are three important factors which lead me to conclude that the applicant ought be given a final chance to file an amended statement of claim:

(a) In his reasons for judgment Master Malpass in giving "one final opportunity to apply for leave to amend" contemplates that Mr Abram should obtain legal advice. Accepting what Mr Abram said from the Bar table he has now obtained that advice and a further proposed amended statement of claim has been drafted. This has been done subsequent to the hearing before Assistant Registrar Howe. As Master Malpass noted, such legal advice should have been obtained long ago but an element of unfairness operates upon the applicant if, despite his delay, he now has a document to prosecute his claim. I note that Mr Abram appeared unrepresented.

(b) When judgment was given in the Court of Appeal dismissing the charge of contempt Justice Powell added some short comments critical of the approach taken by the bank. Those comments having been made by his Honour a sense of grievance could arise in Mr Abram if he was precluded from prosecuting his claim in the context of him not having legal assistance.

At page 8 of his Honour's judgment Justice Powell referred to an appeal to the Divisional Court of the Queen's Bench division where Pollock B is recorded as having said: In a case like this, where judgment had been given that the plaintiff shall recover possession of premises and a writ has been issued to the sheriff to deliver possession: if the officer has been apparently put in possession and the defendant choses at some later time to change his mind and came back to the premises and by craft or force to again obtain possession, it was right that an attachment should be issued against him on the ground that he had not really given up possession. Whenever, the writ being put in force, the defendant or anybody who assists him, does not fully and honestly give up possession, but only colourably does so, the judge applied to may and ought to find that the process of the Court has not been obeyed and there had been contempt of Court.

His Honour, after quoting that case said: The facts recorded in the judgment of the Court clearly demonstrate, the present was far from being a case in which there had been a colourable delivery of possession, and possession had been regained by fraud or some stratagem - it was a better part of three weeks after possession had been delivered up before Mr Hastie and Mr Abram attempted to re-enter the premises. In my view, re-entry into possession, in the circumstances, did not constitute contempt and the bank's application to have Mr Hastie and Mr Abram dealt with for contempt was misconceived - the initial reaction of the bank's solicitors that an earlier re-entry by Mr Hastie and Mr Abram constituted trespass…was, in my view, correct and, had the bank taken the course which I have suggested above as being appropriate, this whole sorry business could have been avoided. (c) The third factor is that although the statement of claim was dismissed by Master Malpass, the Master placed the matter in the Registrar's list for the purposes of dealing with an application for leave to amend the statement of claim. This is the explanation for the Registrar ordering that the statement of claim's contents remain struck-out. Logically, an application for leave to amend is not open to the applicant but a fresh application to file the proposed statement of claim may be made.

The respondent mounts a very strong case against the version of the statement of claim proposed to the Assistant Registrar. In a letter of 17 April 2001 the respondent's solicitors correctly criticised the April 2001 version of the applicant's statement of claim. Unless substantially amended it would be struck-out by reason of a failure to disclose a reasonable course of action and a tendency to cause prejudice, embarrassment and delay. 19 The Court is also mindful that it is now well over twelve months since the applicant commenced proceedings, and he still has not brought forward an originating process in correct form. 20 Despite the very strong case that is brought by the respondent bank against the application I am of opinion that in the interests of justice in "this sorry business" that the Court should consider the applicant's further proposed statement of claim, drafted in consultation with a legal representative. This would give full and final effect to the orders and directions made by the Master. The plaintiff delays are such that he should meet the costs of the motions before me. 21 No case was made out for extending the time to appeal from the Master's decision. 22 Accordingly the Court makes the following orders:

As between the applicant/plaintiff and the respondent/second defendant the second defendant's notice of motion is dismissed.

Order the applicant/plaintiff to pay the respondent's/second defendant's costs of the motion.

The decision of Assistant Registrar Howe of 28 April 2001 is set aside.

Direct the applicant file proposed amended statement of claim within 28 days.

The applicant/plaintiff's Notice of Motion is otherwise dismissed.

Order the applicant/plaintiff pay the respondent's/first defendant's costs of his and its Notice of Motion.

Last Modified: 10/19/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Abram v National Australia Bank Ltd [2001] NSWSC 916 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20155/00 HEARING DATE(S) : 28/09/01 JUDGMENT DATE : 18 October 2001

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