Bell v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 I gave ex tempore reasons for this matter on 8 August 2014 when I dismissed the appellant's interlocutory application filed on 1 August 2014. These are those reasons, edited, but not so as to alter their substance. 2 This is an interlocutory application brought by the appellant, Carl William Bell, seeking certain injunctive relief. The relief claimed is, in effect, to restrain the first respondent, the Commonwealth Bank of Australia (CBA), from exercising any entitlement it has to take possession of four properties owned by Mr Bell. The particular focus of the appellant's application concerned two properties that are adjacent to one another in York, Western Australia. One has the appellant's residence on it. I am told by Mr Bell, and I accept for present purposes, that an elderly lady also resides there. 3 The interlocutory application is brought in proceedings instituted by Mr Bell by way of a notice of appeal filed on 3 July 2014 and by which he purports to appeal from the judgment of Jarrett J delivered on 12 June 2014 (Bell v Commonwealth Bank of Australia [2014] FCCA 1313). It is convenient to place that judgment in context. On 1 December 2011, another bank, Bankwest, obtained summary judgment against Mr Bell in the Supreme Court of Western Australia (Supreme Court) by a judgment of Master Sanderson (CIV 2512 of 2011). 4 Several years later, on 22 April 2014, Master Sanderson made an order in favour of CBA for summary judgment and vacant possession (CIV 2567 of 2013). Then, on 9 May 2014, Mr Bell brought an application in the Supreme Court for an order suspending enforcement of the judgments in CIV 2512 of 2011 and CIV 2567 of 2013. That application was dismissed by Principal Registrar Gething on 4 June 2014 (Commonwealth Bank of Australia t/a Bankwest v Bell [2014] WASC 201 - CIV 2567 of 2013). 5 Principal Registrar Gething dismissed the application as being incompetent on the basis that there was no permission from Mr Bell's trustee in bankruptcy to institute that proceeding. I will return to this subject shortly. He also held that there were no special circumstances justifying the suspension of the judgment pursuant to which CBA is entitled to possession of property which included the properties the subject of the present interlocutory application by Mr Bell. 6 On 13 May 2014, Mr Bell instituted proceedings in the Federal Circuit Court of Australia. CBA applied for summary dismissal of that process and it is that judgment from which Mr Bell now purports to appeal. CBA's application was successful in that Jarrett J concluded that there was no reasonable prospect of the appellant prosecuting his application. 7 In his judgment, Jarrett J correctly noted the appellant is presently a bankrupt pursuant to a sequestration order made on 15 January 2013, which was made on the basis of an act of bankruptcy committed by the appellant when he failed to comply with the bankruptcy notice that was served upon him. The bankruptcy notice was based upon the judgment given by Master Sanderson in the Supreme Court. Judge Jarrett noted at para [14] of his reasons that there was an unsuccessful appeal from that judgment. 8 The reasons concluded, at paras [24] and [25], in the following terms: 24. …to the extent that this application has been brought to secure the proper performance of the registered trustee's obligations under the Act, this application is ill-conceived. 25. For all of those reasons I am satisfied, as I have already indicated, that there is no reasonable prospect of the applicant prosecuting this application, and it will be dismissed. 9 The interlocutory application is supported by the following documents. Firstly, an affidavit by Mr Bell affirmed on 31 July 2014. Mr Bell has also lodged with the Court a letter dated 4 August 2014 with an accompanying document; a document entitled "Oral Submission by Applicant for Hearing before a Federal Court Judge on 4.8.2014 …"; and voluminous documents which relate to Supreme Court proceedings CIV 2567 of 2013, in which I understand there is an appeal brought pursuant to O 60A rr 4 and 5 of the Rules of the Supreme Court 1971 (WA) by the appellant against CBA, amongst others. 10 Finally, there is a document in this proceeding entitled "Oral Submissions before Justice Gilmour on 8/8.7.2014 at the Federal Court for an Immediate Injunction". The interlocutory application first came on before me on 4 August 2014. At that time I raised with Mr Bell the fact of his bankruptcy and asked him whether or not his trustee, Mr Barry Anthony Taylor, had given his consent, not only to the interlocutory application but to the underlying appellate proceedings instituted by Mr Bell. 11 Mr Bell, at that time, sought to contend, by reference to certain correspondence from the trustee, that such consent existed and to use the words of Mr Bell, that the trustee had agreed to Mr Bell's self-advocacy. I was not, at that time, satisfied that such was the case. Indeed, as I explained to Mr Bell at the time, it seemed to me that he had misread the correspondence because it actually pointed in the very opposite direction and indicated that Mr Taylor was not prepared to provide any consent. Nonetheless, I adjourned the application on that day to enable Mr Bell to take up the matter with his trustee in order to clarify the position as to whether Mr Taylor was prepared to give his consent. I also indicated to counsel appearing for CBA that it would be helpful for the Court if CBA were to communicate with Mr Taylor on the same topic. 12 In oral submissions made to the Court this morning, Mr Bell sought to contend that there was, in effect, by non-response to earlier correspondence, an acquiescence by his trustee to the bringing of any proceedings, including these proceedings. Self-evidently, Mr Bell has not produced to the Court any written consent from Mr Taylor and I infer that he did not even ask for such consent from Mr Taylor between 4 August 2014 and today. I infer that because I assume that if he had asked Mr Taylor, as I had granted the adjournment for him to do, he would have told the Court and he would have told the Court what the response from Mr Taylor was. He did not do any of those things. 13 It would be, in any event, extraordinary to think that Mr Taylor would provide consent to a proceeding in which he is a respondent, named by Mr Bell, both in the proceedings in the Federal Circuit Court and in this appeal. In any event, pursuant to my invitation, CBA communicated with Mr Taylor concerning whether or not he would provide his consent and I have been provided with an affidavit by Kerry-Leigh Pallas, a solicitor with Norton Rose Fulbright Australia, which acts for CBA. It was sworn by her today and on page 6 is to be found the copy of a letter, on the letterhead of HLB Mann Judd, dated 6 August 2014 and addressed to Mr Chris McLeod, Norton Rose Fulbright. I will set out the terms of that letter in full: Dear Mr. McLeod, Carl William Bell ("Bankrupt") Estate: WA 61 of 2013/0 I refer to the above matter and your letter dated 6 August 2014. I am the Trustee of the Bankrupt Estate of Carl William Bell. I did not consent to Carl William Bell issuing Federal Court of Australia proceeding number WAD 197 of 2014, Carl William Bell v Commonwealth Bank of Australia (ACN 123 123 124) and Ors ("Proceeding") or any proceeding. I did not and do not consent to Carl William Bell appearing in respect of the Proceeding. I did not consent to Carl William Bell filing an interlocutory application on 1 August 2014 in the Proceeding ("Interlocutory Application"). I did not and do not consent to Carl William Bell appearing in respect of the Interlocutory Application. I do not intend to appear in respect of the Proceeding. 14 I find, as a fact and as a matter of law, that the relevant consent does not exist and that these proceedings, both the notice of appeal and this interlocutory application, are for that reason, incompetent. I do not doubt whatsoever that Mr Bell genuinely believes in the rightness of his case and is passionate in his zeal to pursue his view of the law. However, and with no disrespect intended to him, his appreciation of the relevant law and legal principles is fundamentally flawed. 15 Nonetheless, I find that he has no legal capacity to bring the appeal proceedings or this interlocutory application and for those reasons I will make an order that the interlocutory application dated 1 August 2014 be dismissed. I will also order that the appeal proceedings be dismissed. There will be a further order that the appellant pay the respondents' costs of the proceedings generally and including the interlocutory application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.