Clark v National Australia Bank Limited [2026] FCA 119

(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims--

(a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,

(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,

(c) a cause of action to enforce a recognizance,

(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

(a) a cause of action to which section 19 applies, or

(b) a cause of action for contribution to which section 26 applies.

(3) For the purposes of paragraph (d) of subsection (1),

"enactment" includes not only an enactment of New South Wales but also an enactment of the Imperial Parliament, an enactment of another State of the Commonwealth, an enactment of the Commonwealth, an enactment of a Territory of the Commonwealth and an enactment of any other country.

1. Section 55 of the Limitation Act provides:

(a) there is a cause of action based on fraud or deceit, or

(b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

(2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection.

...

1. For the reasons which follow, I am not persuaded that the prospective appeal is attended with sufficient doubt to warrant reconsideration and leave ought be refused.

The short summary of why the proceeding was summarily dismissed by the primary judge

1. The primary judge comprehensively set out the lengthy history of dealings between the applicants and the respondent at [3]-[35] of the primary judgment. No issue is taken by the applicants with respect to her Honour's description of the relevant history.
2. The following background is relevant to the issues in dispute in this Court. As adverted to above, the Clarks carried on a business through various associated entities involved in the acquisition of real property and established businesses. They had two home loans with NAB secured by mortgages over two of the Clarks' properties in Kurnell and Cessnock, and Voxxy Pty Ltd, one of their associated entities, had a line of credit facility with NAB.
3. In July 2007, the Clarks instructed NAB to open an account for Voxxy as trustee of the JTT Trust into which they intended to deposit approximately $500,000 for the purpose of purchasing property in the USA. Two different officers at NAB opened two separate accounts in the name of the JTT Trust. Confusion ensued. Between 24 and 30 July 2007, the Clarks contacted the NAB on at least three occasions seeking to locate the funds because they could not see them in the first account. On 1 August 2007, the Clarks became aware that the account details in the email were not the details for the first account and on the same day their bank manager Mr Wilson (their then Bank representative dealing with their affairs) informed Mrs Clark that the funds had been located. The Clarks allege that because the funds were held in the second account, they could not provide proof of funds while in the USA for any offers they made to purchase property.
4. From about 6 August 2007, the Clarks sought to change their bank manager to a manager at another branch of the NAB. On 10 August 2007, the Clarks informed NAB they had pre-approval to refinance their loans with HSBC Banking Corporation. NAB proposed that the Clarks stay with them if they could price match the rates offered by HSBC. On 22 August 2007, the Clarks' home loans expired. The Clarks alleged that, between August 2007 and June 2008, Mr Wilson failed, refused or neglected to release the Clarks' file to an alternate business relationship manager, take steps to rollover or renew their home loans in a timely manner and/or approve the rollover or renewal of the home loans. In June 2008, NAB issued default notices for the expired home loans and placed a stop on the Clarks' NAB profiles. The Clarks alleged that, while the stop was on their account, they were unable to make payments into the home loan accounts or out of their transaction accounts, among other things. On or around 17 June 2008, HSBC advised the Clarks that it could not proceed with the refinance because of their home loans.
5. As a result of the above matters, NAB commenced various enforcement actions against the Clarks. Notably, on about 5 March 2009, NAB commenced a proceeding in the Supreme Court of NSW seeking repayment of the home loans and Voxxy's line of credit, and possession of the Kurnell and Cessnock properties, among other relief. No defence was filed and, in May 2009, NAB took possession of the Cessnock property, which was subsequently sold. The Bank then obtained default judgment for the possession of the Kurnell property. The Clarks brought an unsuccessful application before Registrar Bradford to set that default judgment aside. As part of those proceedings, the Clarks prepared evidence, a draft defence and a cross-claim in 2013. That claim was unsuccessfully appealed and the subject of a decision of Hidden J to which I will return later.
6. Further, on 25 June 2014, NAB served bankruptcy notices on the Clarks and on 14 October 2014 filed a creditor's petition in the then Federal Circuit Court of Australia. On 19 November 2015, the Federal Circuit Court made sequestration orders in relation to the Clarks' estates. The Clarks alleged that an employee of NAB made an affidavit in the Federal Circuit Court proceedings which failed to disclose a number of things. On or about 8 November 2018, NAB agreed to annul Mr and Mrs Clark's bankruptcies by consent and to pay associated costs because NAB had failed to provide the sequestration orders made by the Federal Circuit Court to the Official Receiver within the required two days and instead provided them some 245 days late.
7. Finally, the Clarks alleged that they made numerous requests of NAB for the provision or production of documents to them and that NAB had failed to respond to those requests. However, on 30 October 2018, NAB provided the Clarks with further documents in relation to their accounts (which the applicants described as concealed documents). The Clarks alleged that, despite this, there remain documents to which they have been refused access. They further alleged that NAB should have been aware that the concealed documents were in their possession, that those documents provided evidence of certain things and that they did not have access to information which demonstrated that NAB had acted contrary to its obligations to act in good faith and in their best interests, among other things.
8. Aspects of the primary judge's reasons will be considered in more detail as they are relevant to the appeal grounds below. There was no dispute that the Clarks' causes of action were prima facie statue-barred, save for by operation of the postponement with respect to certain of their causes of action, which would come into play if the circumstances of s 55 of the Limitation Act were enlivened. Accordingly, the focus of the primary judge's decision was whether the basic facts essential to their causes of action had been concealed or were not known to them. The Clarks identified "key matters" which they said they were unaware of and, in turn, were "new facts". The primary judge dealt with those matters first and determined that those alleged "key matters" and "key facts" were not basic facts essential to their causes of action. Her Honour considered carefully, based on what was exposed from the pleading and the Clarks (in their affidavits and draft pleadings in the Supreme Court), what was known and not known by them and whether the lacuna ("key matters" and "new facts") truly, by reference to each pleaded cause of action, comprised basic essential facts, without which they were unable to plead, until the later discovery.
9. The primary judge found that the Clarks' pleading of breach of statutory duty under s 912A(1)(a) of the Corporations Act 2001 (Cth) was deficient, as it does not identify the relevant conduct or when it occurred, how NAB is said to have breached the section, causation or damages and in any event was time-barred: PJ[94]-[95]. No issue arises with respect to this matter by the proposed appeal.
10. Further, the primary judge determined that the Clarks' pleading of the conspiracy to defraud and injure claim was wholly deficient as the necessary facts to make out the elements of the alleged tort were not disclosed, there was no pleading as to an alleged agreement or by that agreement an asserted loss. Further and in any event, the primary judge was of the view that there were material deficiencies in the way that the purported loss was claimed: PJ[98]-[99]. Similarly, the primary judge found the claim for damages for breach of s 29 of the Oaths Act was not sustainable: PJ[102]-[103].
11. Lastly, the primary judge identified insurmountable issues of standing with respect to aspects of the Clarks' claims. Her Honour found that the proper plaintiff with respect to the first and second JTT Account, and the Voxxy line of credit, was Voxxy, not the Clarks: PJ[105]. However, on 21 April 2011, Voxxy was placed into liquidation and on 9 September 2013 it was deregistered. Upon deregistration, all property of Voxxy, other than property held on trust, vested in ASIC. Any property held by Voxxy on trust immediately before deregistration vested in the Commonwealth on deregistration: see s 601AD Corporations Act. The primary judge found that the reinstatement of Voxxy and adding it as a plaintiff will not cure the issue identified. That is because any application to reinstate Voxxy is likely to be hopeless as the claims to be brought in Voxxy's name are out of time. Further, to the extent any of the properties for which damages are claimed were owned by SBE, that company is the proper plaintiff. It is not a party to the proceeding.

1. Counsel for the Clarks made the following general submissions on behalf of the Clarks, highlighting the seriousness of the case, claiming that the NAB had engaged in misfeasance of the highest order and that it would be a grave miscarriage of justice if their proceedings were summarily dismissed. It was submitted that the Clarks had worked hard to establish a successful business and that business had been completely disrupted by the Bank's conduct, which included its creation of a duplicate account without the Clarks' knowledge, its failure to roll over the Clarks' loans, its freezing of the Clarks' account and stifling of the Clarks' ability to continue to service their loans (including by attendance at banks to pay the amounts). Despite the Bank's knowledge of these errors and the need to compensate the Clarks, the Bank repossessed related properties, and forced them into bankruptcy (which they later had to consent to being annulled). Generalised claims were made as to NAB's purported conduct said to have been revealed from the Banking Royal Commission, about which, without evidence nor any causal relation to the confined issue before this Court, which I cannot take into account.
2. In support of their application, the Clarks sought to rely on new affidavit evidence (not before the primary judge) and the evidence that was before the primary judge. It was made clear to Counsel for the Clarks that it was necessary for him to identify what was fresh evidence and why leave should be granted to rely upon it. It was somewhat perplexing that it was submitted that there was no fresh evidence to be relied upon on appeal. It was further made clear that Counsel needed to take me to what evidence was relied upon in his oral submissions otherwise account would not be taken of the evidence.
3. The applicants must establish at least a prima facie case based on their proposed grounds of appeal and leave cannot be granted simply because a different view on a question might have been taken. Accordingly, the Court's focus is directed to the merit of the Clarks' proposed grounds of appeal about which I will now turn.

Proposed ground 6: no discernible error in deciding the applicable limitation period at an interlocutory stage

1. By proposed ground six, the Clarks submitted that the judge erred by deciding limitation at an interlocutory stage, despite factual disputes and incomplete discovery. It was submitted that the High Court has cautioned against premature termination of proceedings, particularly in matters involving complex issues of fact, causation, or where disclosure is incomplete citing Wardley Australia Ltd v State of WA [1992] HCA 55; 175 CLR 514; Commonwealth v Cornwell [2007] HCA 16; 229 CLR 519; Spencer v Commonwealth [2010] HCA 28; 241 CLR 118. Whilst the authorities cited by the Clarks did not clearly align with the proposition, it may be accepted.
2. However, this cautionary principle does not impede the capacity of the Court to summarily dismiss a proceeding because of a limitation period that will be a complete answer to the claim as the Court ought not delay the inevitable: Reilly v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1502 at [21] citing Jobbins v Capel Court Corporation Ltd [1989] FCA 538; (1989) 25 FCR 226 at 231. It is worthwhile noting that in Wardley the claim involved damages relating to investments arising from a misleading and deceptive conduct claim where identifying the accrual date in that case was complex. I do not accept that there is corresponding difficulty of that kind here.

Proposed ground 1: no discernible error in applying the relevant limitation principles under s 55 of the Limitation Act

1. Mr and Mrs Clark submitted that the primary judge erred in law in finding that the applicants knew the basic facts essential to each cause of action before 2018: PJ[64]. In reaching such a conclusion, the Clarks submit that her Honour failed to apply the correct evidentiary standard articulated by the High Court in Queensland v Stephenson [2006] HCA 20; 226 CLR 197 which requires actual or constructive knowledge of material facts of a decisive character capable of grounding a viable cause of action. This submission is misconceived. The authority does not stand for this proposition. The decision concerned the meaning of the statutory expression "a material fact of a decisive character relating to the right of action" in the Limitation of Actions Act 1974 (Qld). The present case concerns whether the Clarks knew the basic essential facts to plead their respective claims.
2. In any event, to put this submission in context, the primary judge dealt first in her reasons with the fraudulent concealment of the cause of action based on alleged fraud, because if such a claim could not be made out then the six year limitation would apply. Her Honour considered the relevant authorities regarding what would constitute a fraudulent concealment and the distinction between concealing the basic set of essential facts which underpin a cause of action and concealment of evidence which related merely to the proving of the case rather than to the existence of a right of action: citing C v Mirror Group Newspapers, Frisby v Theodore Goddard & Co (Supreme Court of Judicature, Court of Appeal (Civil Division)) 27 February 1984; Ag-Exports (Australia) Pty Ltd v Export Finance and Insurance Corporations [2003] NSWSC 175; and Clurname Pty Limited v McGraw-Hill Financial, Inc [2017] FCA 1319. Thereafter her Honour summarised the parties' competing submissions, particularly with respect to what was contained in affidavits Mr and Mrs Clark had filed, in 2013, in the Supreme Court proceedings which were said to establish that, as at that time, they knew the basic facts essential to each cause of action, long before 2018.
3. At PJ[60], the primary judge summarised what the Clarks had submitted where the five key matters that, according to the Clarks, were not known to them until about 30 October 2018:

(1) cancelling Mr and Mrs Clark's Voxxy LOC by notice dated 3 July 2008 and issuing a default notice on 15 July 2008 in circumstances where, unknown to them until 30 October 2018, on 9 August 2007 approval had been provided by David Bateup, NAB team leader, risk and renewals, to extend the loan until September 2008;

(2) failing to investigate Mr and Mrs Clark's complaints concerning Mr Wilson establishing the Duplicate Account which, unknown to Mr and Mrs Clark until 30 October 2018, involved 64 unauthorised transactions. In addition, their banking profile was manipulated for operation of the Duplicate Account and, despite repeated requests, Mr and Mrs Clark did not formally receive copies of the Duplicate Account bank statements until August 2015;

(3) ignoring Mr and Mrs Clark's numerous requests for documents until 30 October 2018 when internal emails between NAB staff were handed over which confirmed approval had been given on 31 August 2007 to match the HSBC interest rate on the Home Loans to retain their business;

(4) failing to remove Mr Wilson as Mr and Mrs Clark's bank manager, despite serious complaints being made by them about his improper conduct in managing their banking affairs; and

(5) placing Mr and Mrs Clark in a position of disadvantage through withholding internal emails and diary notes until 30 October 2018 and 7 November 2018 when NAB conceded placing stops on their bank accounts was a "bank error".

1. The primary judge then identified, at PJ[63], what the new facts, said to arise from the key matters, the Clarks were unaware of until at the earliest October 2018:

a. Confirmation of the 'bank error' on the Clarks accounts and the serious consequences of those errors, which are at the heart of this case.

b. Business loan of Voxxy Pty Ltd Rollover signed in August 2007 by David Bateup new exp 09/08 (the other two loans were not rolled over in 2007);

c. $99,999 withdrawal has been never explained by the NAB and the bank still won't produce screenshots under current notice to produce;

d. value withdrawals and value transfers on 23 and 24 July 2007 from Duplicate account ending in 3715 never explained;

e. [NAB] by senior banker his admission he delayed loan renewal (2007);

f. Internal emails acknowledging compensation should be offered to the Clarks (2011);

g. TFN bypass to account setup 3715 - duplication detection (2007);

h. [NAB's] internal emails asking if file notes should be handed to FOS (2011) File notes supplied between 2018 to 2020;

i. [NAB] confirm issued default listing (February 08) not having issued correct default notices prior (2024).

j. Jaap Jonkman (NAB NSW GM) acknowledges in email communications (2011) that they (NAB) took a property of Clark's "without consent".

k. Steven Valentine had knowledge of file notes, internal email communications, internal findings from 2011 and Voxxy rollover when he signed an affidavit in support of the [NAB's] Federal Court matter NSD 649 of 2014 dated 8 Oct 2014 and again 23 July 2015 (2018- 2024) and may have misled the court.

l. Alternative Banker acknowledgement in internal email communications to block transfer of BUI (2008).

1. The primary judge found, at PJ[64], that the Clarks knew the basic facts essential to each cause of action before 2018, by reason of the fact that they plead the basic facts essential to the causes of action of which they were clearly aware prior to 2018.
2. The alleged error was said to manifest at PJ[65] and [66], where it was said that the primary judge erred by relying on facts asserted in earlier proceedings (including affidavits sworn in 2013 and draft pleadings) to conclude that the applicants had sufficient knowledge prior to 2018, without addressing whether those materials "were themselves based on incomplete or withheld evidence". It was submitted that the primary judge erroneously treated "prior suspicions, and partial facts known before 2018 as sufficient to constitute discoverability, without addressing the [Clarks'] inability to plead or commence proceedings in the absence of concealed documents".
3. The primary judgment elucidated why, by reference to each cause of action, the applicants knew the basic facts essential to each cause of action before 2018, or the pleading was otherwise deficient.
4. The Clarks made no specific written submission, with respect to grounds one or two, as to why each of the "new facts" were essential to any particular cause of action by reference to the pleading. Counsel for the Clarks was asked to do this as part of his oral address, for which he made submissions with respect to three of the "new facts" the Clarks had identified below and which were referred to by the primary judge at [63.a], [63.b] and [63.c] (extracted at [29] above).
5. Notably, to give context to the Clarks' submissions as to the newness of these purported facts, her Honour distils, at PJ[66], what the evidence of the Clarks in 2013 reveals about what was then known to them (no issue is taken on appeal with respect to this summary):

(1) a draft defence which relevantly pleaded that without their knowledge or consent NAB took possession of the Cessnock Property;

(2) a draft cross-claim which asserts among other things that Mr Wilson wilfully refused to rollover the Home Loans and Voxxy LOC;

(3) an affidavit sworn by Mrs Clark on 2 April 2013 in which she asserts that NAB's refusal to proceed with the renewal of the Home Loans and Voxxy LOC "as [NAB] had agreed" and its improper recording of the Default Listing caused her and Mr Clark significant losses and damage; and

(4) an affidavit sworn by Mrs Clark on 7 May 2013 in which Mrs Clark, in reference to the expiration of the Home Loans and Voxxy LOC on or about 14 August 2007, deposed that she believed that, "had [Mr and Mrs Clark] not been questioning Mr Graeme Wilson as to the whereabouts of [Mr and Mrs Clark's] missing money and his unauthorised setting up of an additional account", the Home Loan and Voxxy LOC "would have been rolled over and signed off on by Mr Graeme Wilson without any question" without undergoing a full application process.

1. As to [63.a] (the confirmation of the "bank error" on the Clarks' accounts), the Clarks submitted that this was a basic essential fact at the heart of their case and referrable to their claims of unconscionable conduct, equitable fraud, the conspiracy to defraud, the failure of the bank to act efficiently, honestly and fairly and in negligence. I accept the NAB's submission that whether or not the Bank admitted in internal documents or considered that it had made any error, is not an essential fact to any of the causes of action pleaded in the amended statement of claim. It is a matter of evidence that may or may not have assisted the Clarks if this matter had proceeded to hearing.
2. With respect to [63.b] (the business loan of Voxxy being extended from September 2008 and that the two other loans were not rolled over), the Clarks claim that they were not aware of the extension of the Voxxy loan until 30 October 2018. The Clarks seek to rely on the alleged signing off of the roll over by a Mr Bateup in August 2007. The Clarks submitted that this document constitutes a basic fact essential to claims for unconscionability, misrepresentation and conspiracy and was fraudulently concealed by the NAB. At hearing, the Clarks also contended that it related to their negligence claim.
3. However, the basic essential facts necessary to make out the alleged causes of action are the cancellation of the Voxxy Line of Credit on 3 July 2008 (pleaded at ASOC[116]) and the notice of default issued on 15 July 2008 (pleaded at ASOC[117]). Both of those matters were known to the Clarks at the time that they happened. On the face of the pleading, they were known to the Clarks as the NAB told them. This appears from the pleading to be the essential wrong that the Clarks rely upon for each of their claims associated with the Bank's conduct in relation to the Voxxy Line of Credit. Further, I can discern no error in the conclusion of the primary judge that the wrong is that of Voxxy, a company deregistered in December 2018: PJ[106]. To the extent that this new fact evidences the Clarks' fraudulent concealment claim, the Clarks needed to have pleaded not only that the NAB did not provide this document until 2018 but that they fraudulently concealed it. It remains unclear as to how, on the pleaded case, it is a new, basic essential fact, relating to any claim brought by the Clarks as opposed to a claim by Voxxy. Further, it is not clear how the claim is maintained in the proposed notice of appeal on the basis of "misrepresentation" given the Clarks, before the primary judge, accepted that claim was statute-barred, by operation of s 236(2) the ACL. Further, to the extent that the purported new fact is relevant to the conspiracy claim, that claim was found by the primary judge to be hopeless for the reasons set out at PJ[96]-[99].
4. As to [63.c] (a $99,999 withdrawal that has never been explained by the NAB), it was submitted that it was a basic, essential fact to the claim of conspiracy to defraud. The Court was taken to a screenshot of the purported withdrawal and a related spreadsheet. The parties accepted that there is no such withdrawal recorded on the bank statements. However, Counsel for the Clarks submitted that does not mean that there was not a withdrawal. The Clarks did not point to anywhere in the 2024 pleading where the Clarks plead that there was in fact a withdrawal from that account, that it was missing or is owed on which a cause of action is based. Counsel for the Clarks submitted that the circumstances of the purported "withdrawal" are unknown and hence why it has not been pleaded. However, this submission reveals why the allegation is misconceived. The primary judge was charged with considering the pleaded claim and whether it discloses no reasonable prospect of success, not a prospective unarticulated claim.
5. It was also submitted that the primary judge erred in determining, at PJ[67], that none of the concealed documents which were obtained in the period October 2018 to December 2024 contained a basic fact essential to any of the causes of action pleaded in the proceeding. It was submitted that it was only after receiving the concealed documents in October 2018 that it became apparent that Mr Steven Valentine, NAB Lead Complex Mortgage Recoveries, may have misled the Federal Court. In addition, Mrs Clark relied upon legal advice received from solicitors and barristers between 2008 to the end of 2018 to the purported effect that there was insufficient evidence to commence proceedings against NAB. However, there is a distinction between advice being given by solicitors as to the absence of evidence and the Court's determination of whether the applicants had awareness of the basic facts essential to their causes of action. Ultimately, the primary judge determined, in part, on what was disclosed in the pleadings themselves and contained in evidence relied upon by the Clarks in their 2013 application to set aside the default judgment in the Supreme Court of NSW, that the basic facts were known: s 55 of the Limitation Act (PJ[47]-[50], [64]).

1. Lastly, at hearing, apparently related to the allegations in proposed grounds one and two, Counsel for the Clarks raised a new potential ground of appeal, namely that the primary judge had erred by narrowly construing the circumstances in which s 55 of the Limitation Act applied and in effect conflated the circumstances identified in s 55(1)(a) and (b). It was submitted that the Clarks pleaded each of fraud, deceit and concealment and that each of them needed to be considered individually because "at different times, information became available".
2. As observed by Bryson JA in Lee v Travers & Ors [2009] NSWSC 398 at [43], there are two distinct branches in s 55:

The branch traced through clause 55(1)(a) relates to a cause of action based on fraud or deceit, and concealment or fraudulent concealment is not an element of it. In this branch time begins to run when the person having the cause of action first discovers the fraud or deceit, or may with reasonable diligence first discover the fraud or deceit. In the second branch, which applies to any cause of action, including a cause of action based on fraud or deceit, where the cause of action is fraudulently concealed, the running of the time bar is postponed until the person having the cause of action first discovers or might with reasonable diligence discover the concealment.

1. Properly construed, subsections (1)(a) and (b) identify the types of causes of action to which the postponement of the bar will apply. It was accepted that the conspiracy to defraud claim is a cause of action arising under subsection (1)(a). The words at the end of subsection (1) identify the circumstances in which the extension will apply. Accordingly, if the claim is one of fraud or deceit, there does not need to have been concealment in order for s 55 to apply to that cause of action. If a person discovers a fraud at a certain date, that is the date from which the limitation period will run. Or if the person with reasonable diligence could have discovered the fraud, then the limitation period will run from that earlier date.
2. A fair reading of the primary judge's reasons does not reveal arguable error by conflating the limbs of s 55. First, the primary judge was asked by the Clarks to consider their potential claims under both s 55(1)(a) and (b). Secondly, it is clear that her Honour understood this because her Honour considered three authorities that addressed how s 55 (or like statutory provisions) operated with respect to either types of claim: PJ[47]-[49]: Frisby v Theordore concerned s 26 of the Limitation Act 1939 and the Limitation Act 1980 which included actions based upon or a right of action concealed by the fraud. Clurname concerned the operation of both s 55(1)(a) and (b). The primary judge extracts the corresponding relevant parts of Clurname that considered the applicants' claims under both s 55(1)(a) and (b). Thirdly, regardless of whether the claims were brought under s 55(1)(a) or (b), a common consideration was when the person first discovers the fraud or deceit or the concealment. It is evident from what follows after her Honour considers those authorities, that is her Honour's focus. Her Honour does not confine her consideration to whether in fact the Clarks could make out that there had been fraudulent concealment. The question the Court is required to attend to (and did attend to) is whether there was a basic essential fact not known to the applicants and that the applicants could not have known the same, at a certain point in time.

Proposed ground 2: no discernible error in determining the issue of fraudulent concealment

1. By this proposed ground, the Clarks contend that the primary judge erred by failing to apply the principle, enlivened by s 55(1)(b), that fraudulent concealment of material facts may suspend or postpone the operation of the six year limitation. This error was said to have manifested by the primary judge failing to engage with or determine whether the NAB had actively "concealed documents essential to the causes of action, including failure to produce materials in response to disclosure obligations in responding to a notice to produce ... and regulatory requests". In addition, it was claimed that the primary judge failed to consider whether "such concealment materially impaired the [Clarks'] capacity to discover the relevant facts and initiate proceedings". This proposed ground lacks merit.
2. It is evident from the content of the Clarks' written and oral submissions that they misapprehend the distinction, in the task of establishing fraudulent concealment, between divining from the pleading whether the basis facts essential to the cause of action were known before the effect of the limitation period kicked in and whether there is evidence to prove or establish the facts and matters asserted in the pleading. The Clarks were in effect seeking to call into aid an argument that was rejected in Frisby v Theodore as the following extract from that decision reveals (page 7):

Mr Tackaberry submits that a convenient test of whether a plaintiff has a right of action is to consider what advice he would obtain if he put all the evidence available to him before a competent legal adviser. If he would be advised to sue, he has a right of action. If he would not be advised to sue, he has no such right. If later further material comes to light, which should have been made available to him earlier, and if this further material would cause him to be given different advice, his right of action has been concealed.

So far as I can see, this submission that he could not sue earlier as a practical matter and could only sue in 1978 was accepted by the learned judge, and it was in consequence of that that he considered this action should not go ahead. In my judgment he should not have accepted that submission. A right of action arises out of a basic set of essential facts. In the context of the present case these essential facts were (a) a solicitor and client relationship between the plaintiff and the defendants, (b) the giving of advice by the defendants which a skilled and careful solicitor should not have given and, possibly, (c) consequential damage. A right of action may be concealed by hiding one or more of these essential facts from the potential plaintiff. But that did not occur and the plaintiff did not suggest that it did. His complaint is that certain evidence was concealed which, he says, would have supported his right of action. This is something wholly different. Having a right of action and knowing you have it is one thing. Being able to prove it is another. Bridging this gap, when all or an important part of the evidence is or may be in the hands of the defendants, is the function of discovery.

(Emphasis added.)

1. The Clarks submit that account ought to have been taken by the primary judge of two aspects of Hidden J's decision. That decision arose from proceedings brought in the Supreme Court of New South Wales by the NAB alleging default in the repayment of bank loans and seeking possession of the two properties. No defence was filed and the NAB took possession of one of the properties which was sold. The Bank then obtained default judgment for the possession of the other property. The Clarks brought an unsuccessful application before Registrar Bradford to set that default judgment aside. Justice Hidden determined the appeal from the Registrar's decision. In his Honour's summation of the background facts, his Honour referred to the fact that the Registrar had found that the defence and cross-claim did not disclose arguable issues concerning the claim for possession "although they might raise matters in respect of which remedies could be sought in separate proceedings". The Clarks sought to rely on this observation as being indicative of the Court holding a view, consistent with the advice that the Clarks were receiving at the time, that they did not have enough evidence to put together a proper defence and cross-claim. Again, however, the Clarks' submission echoes that of Mr Tackaberry rejected in Frisby v Theodore above and is without merit.
2. Justice Hidden's decision is instructive because it recounts aspects of the Clarks' claims as articulated in their (then) defence before the Supreme Court, which pleaded waiver, estoppel or the formation of a new agreement as well as misleading and deceptive conduct and unconscionability: See National Australia Bank v David Clark & Ors [2013] NSWSC 1461 at [13]- [14]. In the context of Hidden J considering these claims, attention is given to the Clarks' reliance upon the Bank's receipt of their continued interest payments between August 2007 and June 2008, for which the following was observed at [19]-[20]:

Nor, on this issue, could the Clarks rely upon the bank's receipt of their continued interest payments between August 2007 and June 2008. During that period the matter was the subject of negotiations which, as Mr Koch pointed out, would have been cut very short had the Clarks not continued to meet the interest accruing. Mr Koch challenged the assertion in the draft defence that after the accounts were frozen in June 2008 the bank refused the tender of further interest payments, saying that it was inherently unlikely that the bank would adopt that approach. I can see the force of that argument but I need not express any concluded view about it.

Mr Koch also took issue with the assertion in the defence that the bank had reported the Clarks to credit reporting agencies. As I have said, there was evidence of a default listing in respect of a credit card of Mr Clark, which was later withdrawn. Annexed to Mrs Clark's affidavit is a copy of the Veda Advantage credit file in respect of her. It records her applications for credit to various financial institutions, but does not disclose any default on her part. In response, Mr McQuillen said that there might be further evidence on that topic which was not before me.

1. Counsel for the Clarks submitted that the evidence the Clarks now have reveals that there were important facts, namely the freezing of the Clarks' accounts and the Bank's non-acceptance of their payments, which the Clarks could not assist the Court with at that time. This fed into the Clarks' argument that the primary judge ought to have found that these new facts would have assisted them not only before Hidden J in appealing the default judgment but also in bringing their claims in the Federal Court.
2. I do not consider that, by reason of any purported failure by the primary judge to consider aspects of the Hidden J decision, any appealable error may be discerned. The decision reveals, at [3], that the material the Clarks were attempting to put before the Court to have the default judgment set aside was not sufficient on their current claims but might raise matters in respect of which remedies could be sought in separate proceedings. To the extent that Mrs Clark gives evidence that she did not proceed with those proceedings because she had legal advice about lack of evidence, that does not answer the question. It is not a question of there being enough evidence but whether there were basic facts (unknown) essential to a cause of action to which the primary judge directed her attention.
3. As to [19] and [20] of Hidden J's judgment, much was made of the fact that the Clarks attended a branch, attempted to pay and were not allowed to pay. It is apparent from [20] that, as at 2013, the Clarks were asserting this had happened. As a consequence, her Honour was correct to conclude that the Clarks knew the basic facts and did not need to wait until December 2024 to plead those facts.
4. The Court considered the evidence and submissions in relation to the alleged fraudulent concealment and made findings (about which no specific attacks were made) which led to the conclusion that NAB had not engaged in fraudulent concealment of the kind contemplated in s 55: PJ[34],[51]-[61], and [63]-[67]. The Clarks, save for by generalised assertion, point to no error in the Court's decision in this regard such that it cannot be maintained that it is attended by sufficient doubt to warrant it being reconsidered by an appellate court.

Proposed ground 3: no discernible error in the consideration of the alleged tort of conspiracy to defraud or injure

1. By proposed ground three, the Clarks took issue with respect to the primary judge's findings, at J[98], that the ASOC[177] did not plead a compensable loss sufficient to sustain their claim. Her Honour's reasons, in context, were as follows:

96 The final cause of action pleaded by Mr and Mrs Clark is conspiracy to defraud or injure by unlawful means. In summary, at ASOC [177] Mr and Mrs Clark allege that, despite numerous requests, NAB conspired with its staff from June 2007 to date to withhold key documents from them "relating to the improper management of their banking affairs in order to deny [Mr and Mrs Clark] the opportunity to exercise their rights in seeking damages for any harm caused and to defend proceedings alleging [the Home Loans] were in default".

97 In Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 122 Menzies J said the following about the tort of unlawful means by conspiracy:

... If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy. Although it is probably too late in the day to divide conspiracies, for the purpose of legal classification, into two sorts depending upon whether the purpose of the combination would be lawful or unlawful if it were the purpose of an individual, there is much to be said in favour of approaching any consideration of the law of tortious conspiracy and its application in that way. It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. ...

See too Talacko v Talacko [2021] HCA 15; (2021) 272 CLR 478 at [25].

98 ASOC [177] does not plead the necessary facts to make out the elements of the alleged tort. There is no pleading of an agreement between two or more NAB employees to carry out an unlawful purpose, that such an agreement was carried into effect or any allegation that in carrying out such an agreement Mr and Mrs Clark suffered a loss. In any event the loss said to be suffered is the denial of the right to seek damages because of withholding the documents and the lost opportunity to defend the proceeding in which NAB alleged the Home Loans were in default.

99 As to the former, as NAB submits, Mr and Mrs Clark had not lost their opportunity. If as NAB contends and I have accepted Mr and Mrs Clark knew the basic facts essential to their causes of action, they were able to bring those claims within the applicable limitation periods. If on the other hand there had been fraudulent concealment, the opportunity would not be lost. As to the latter, the loss of the opportunity to defend a proceeding is not a pecuniary loss.

1. By the proposed ground, the Clarks gave focus to what they claimed was the error in the primary judge's assessment of their prospects concerning the relief arising from the conspiracy to injure claim.
2. At hearing, the Clarks made submissions as to the purported errors in a much more expansive way than proposed in their draft notice of appeal. The Clarks submitted that her Honour first misapprehended the elements of the tort in determining that there needed to be an agreement (stating one could be inferred and need not be express), secondly, in any event, one was pleaded in ASOC[177C-D], with a common purpose to withhold documents to deny legal rights and, thirdly, (referring to ground 3 particularised in the proposed notice of appeal), a result a loss, one of opportunity which was compensable citing Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64; Johnson v Perez [1988] HCA 64; 166 CLR 351. The Clarks submitted that they lost opportunities to defend Supreme Court Proceedings, refinance with HSBC, prevent bankruptcy and pursue counterclaims. This produced pecuniary loss, reputational damage, and ultimately, bankruptcy.
3. The Full Court of the Victorian Supreme Court, in Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186 at [31]- [33], adopted Weinberg J's elucidation of the elements, in Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 at [99]- [104], of the two forms of the tort of conspiracy, as follows:

... A conspiracy by lawful means requires an agreement or combination between two or more persons to perform acts which, although themselves not unlawful, are done with the sole or predominant purpose of injuring the plaintiff. An unlawful means conspiracy requires an agreement or combination to perform unlawful acts with the intention, which need not be the sole or predominant purpose of the conspirators, to injure the plaintiffs. Weinberg J emphasised, however, that an unlawful means conspiracy 'still requires proof of an intention to injure' and continued:

It is generally thought that the correct test of intention in this context is that stated by Lord Denning MR in the Court of Appeal decision in Lonrho Ltd v Shell Petroleum Co Ltd... His Lordship said...:

I would suggest that a conspiracy to do an unlawful act - when there is no intent to injure the plaintiff and it is not aimed or directed at him - is not actionable ... But if there is an intent to injure him then it is actionable. The intent to injure may not be the predominant motive. It may be mixed with other motives ... It is sufficient if the conspiracy is aimed or directed at the plaintiff, and it can reasonably be foreseen that it may injure him, and does in fact injure him.

Weinberg J then referred to his earlier decision in McKellar, and said of the intention requirement that 'though perhaps difficult to apply in some cases, [it] was intended to prevent claims by those who suffered incidental, though foreseeable loss, as a result of the commission of what is sometimes described as "undirected conduct"'.

Finally, Weinberg J accepted as correct the statement of Mason P in the New South Wales Court of Appeal in McWilliam v Penthouse Publications Ltd that a plaintiff in an unlawful means conspiracy case:

must establish intent to injure the plaintiff. It is not enough to establish that the acts of the conspirators necessarily involve injury to the plaintiff or that that plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage...

1. However, again one needs to return to the pleading and to what the primary judge found. It may be accepted that the agreement aspect of a conspiracy claim may be inferred. Further, I do not accept that her Honour, at PJ[98], required an erroneously narrow form of "agreement" be pleaded. However, that aspect, as with the other elements of the claim (whether a lawful or unlawful means conspiracy), needs to be properly pleaded. In this case, the Clarks plead an unlawful means conspiracy. I do not accept that by what is pleaded in ASOC[177C-D] nor the alleged acts, relied upon by the Clarks (at ASOC[177E-G]), sufficiently demonstrate the necessary inference and the purported dominant purpose to injure to warrant reconsideration of the primary judge's findings. The additional authorities provided by the Clarks after the hearing do not assist but rather illustrate what is required to be pleaded and was not.
2. Further, the allegations are directed to a specific alleged consequence, namely that by the alleged impropriety, the Clarks did not have "the necessary evidence to defend the [default loan] proceedings" in the Supreme Court (ASOC[177]). It was then pleaded that by reason of that default, the Clarks were forced to sell other properties to repay the facilities which had gone into default (ASOC[178]) and that default led to numerous other consequences (ASOC[179]-[182], [184]).
3. The primary judge's reasons, with respect to the claimed losses, are challenged. The primary judge was charged with considering the claim as pleaded. The claimed loss arising from the conspiracy to defraud and injure claim was pleaded in the following imprecise (and ultimately unfathomable) way:

The losses sustained by the Applicants arising from the withholding of key documents are detailed in paragraphs 178 to 184.

1. First, notably, the losses are said to have arisen from "the withholding of key documents" not any other conduct. Secondly, paragraphs 174 to 184 comprise the entire part of the pleading concerning damages arising from each cause of action. It is not possible to decipher how the loss, said to be attributable to the conspiracy claim, was pleaded to be sustained by the alleged corresponding conduct (namely the withholding of key documents). Thirdly, and in any event, the Clarks appeared to be claiming that the same documents allegedly withheld deprived them of the ability to defend the defaulting loan proceedings and to plead their causes of action before this Court. However, her Honour found the withholding of documents did not preclude the Clarks from doing the same.
2. Her Honour identified the alleged loss said to be suffered as being the denial of the right to seek damages because of the withholding of documents and the lost opportunity to defend proceedings in which NAB alleged the home loans were in default. Ultimately, her Honour reasoned in two ways why their damages claims were not arguable. First, given her Honour had found that the Clarks knew the basic facts essential to their causes of action, the Clarks were able to bring those claims within the applicable limitation periods. Secondly, as a result of the latter, there could have been no pecuniary loss.
3. I can discern no error in her Honour's reasoning on the first count for the reasons already given in this decision. That count alone is sufficient to reveal the lack of merit in the claim for damages regardless of whether one could (on a hypothetical level) claim a loss arising from a lost opportunity or not. In any event, for the above reasons, I cannot otherwise discern any error in the primary judge's reasons.

Proposed ground 4: no apparent failure to address core arguments

1. The Clarks submitted in writing, but made no oral submissions in this regard, that the judgment substantially adopted NAB's submissions ([67] to [103]) without addressing core arguments on fraudulent concealment, conspiracy, and limitation. This denied procedural fairness citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57.
2. For the reasons already given, I do not accept that the primary judge failed to address or engage with the Clarks' "core arguments". The primary judge repeatedly referred to the Clarks' submissions in her reasons. The arguments regarding fraudulent concealment, conspiracy and limitation are clearly addressed by the primary judge. It is not necessary for those making a decision to refer to "every piece of evidence and every contention" made by a party: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] per French, Sackville and Hely JJ; Reece v Webber [2011] FCAFC 33 at [67]; [2011] FCAFC 33; 192 FCR 254 at 277 per Jacobson, Flick and Reeves JJ. As submitted by NAB, I accept that the fact that the Clarks failed to succeed on their arguments as to fraudulent concealment, conspiracy and limitation is not an issue of procedural fairness: see AJS16 v Minister for Immigration and Border Protection [2016] FCA 1295 at [25].

Proposed ground 5: no apparent miscarriage of justice by determining the summary dismissal applicable before dealing with a notice to produce

1. The applicants submitted that the judge determined NAB's application for summary dismissal before hearing the applicants' interlocutory application (20 December 2024), which sought extension under s 55, enforcement of the notice to produce, and dismissal of NAB's application. This was said to deprive the Clarks of a fair opportunity to address the issues underpinning dismissal, resulting in a miscarriage of justice. Again, the Court's task was to attend to the pleading and whether that pleading disclosed an arguable cause of action and whether it was time barred. The facts in the pleading are assumed to be correct for the purpose of the argument. It is not necessary, at this stage of the inquiry, to prove those facts.
2. As observed by myself, with whom Wigney and Lee JJ agreed, in AZO24 v Commonwealth of Australia [2025] FCAFC 77 at [69]:

A person is not entitled, as of right, to invoke the Court's processes to obtain evidence in advance of the summary dismissal application. If a reasonable cause of action is disclosed in the pleading, premised on material facts (which are not fanciful, trifling, implausible, improbably or tenuous) then subsequent to the summary dismissal application being dismissed and the pleadings closed, the Court may permit processes enabling a party to seek the production of documents and the issuing of subpoenas.

1. The primary judge's approach was entirely orthodox and I reject any claim for a denial of procedural fairness can be made out.

1. For these reasons the application for leave must be dismissed with costs.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.