30 On 13 April 2002 by Information and Summons against the CBA, his trustee, and the solicitors for the CBA, Mr Heinrich alleged various contraventions of ss 35, 43 and 87 of the Crimes Act. It alleges that the CBA gave false certificates in evidence in the debt action contrary to s 87 of the Crimes Act, and that it attempted to pervert the course of justice in enforcing the debt judgment by issuing the second bankruptcy notice and by pursuing the sequestration order. The persons named in that Information and Summons brought proceedings in the Supreme Court of South Australia Action 822 of 2002 (the stay action) seeking a permanent stay of the proceedings extant in the Magistrates Court. On 6 August 2002 Mullighan J on an interlocutory basis ordered that the Magistrates Court proceedings be stayed as an abuse of process until the trial of the stay action: Commonwealth Bank of Australia v Heinrich [2002] SASC 263. I do not have evidence as to the present stage of the stay action.
31 The latest in the series of proceedings which the CBA claims is vexatious on the part of Mr Heinrich is his application to annul the sequestration order made on 6 September 2000 under s 153B of the Act (the annulment application). I heard the annulment application at the same time as the present application, as it seemed to me that the question of whether or not the annulment application had the character of a vexatious proceeding (as asserted by the CBA) required the merits of that application to be addressed. I have given judgment on that application: Heinrich v Commonwealth Bank of Australia [2003] FCA 539.
32 The CBA contends that the annulment application is an abuse of the process of the Court. It contends that the sequestration order and the debt judgment confirmed the debt of Mr Heinrich to the CBA, that the debt was calculated upon the basis of the CBA's records, that the claims of invalidity of bills of exchange was abandoned by Mr Heinrich at the trial of the debt action, and that Mr Heinrich had no locus standi to contest the taxation position of the CBA, and that each of those issues has now been finally and conclusively established in favour of the CBA and cannot now be disputed by Mr Heinrich.
33 As the findings indicate, Mr Heinrich has been determined to owe the judgment debt to the CBA. The judgment in the debt action was reached after a full and extensive trial of the issues. The issues are more fully explained in the annulment judgment. In brief, the learned trial judge rejected the claims of impropriety by the CBA in relation to establishing the initial indebtedness, or the amount of the indebtedness, at October 1992 or at 11 January 2000. Her Honour also rejected the claims of impropriety by the CBA in the conduct of the debt action.
34 In the several proceedings in this Court, culminating in the annulment proceeding, Mr Heinrich has indicated that he does not accept the debt judgment, even though he did not appeal from it. He has sought in the proceedings in this Court to ventilate in substance the matters which he raised in his defence to, and his counterclaim against, the claim of the CBA in the debt action. In the decisions of the Court to which I have referred, he has been unsuccessful in having the Court go behind the debt judgment. The most recent decision in the annulment application also had to address substantially the same issues. The Court in the annulment application was confronted with evidence said to demonstrate fraudulent or improper conduct on the part of the CBA, but upon analysis of the evidence no such finding was made. The Court in that application also had identified that material which was described by Mr Heinrich's counsel as fresh evidence, not previously available to Mr Heinrich, to support the claims of fraudulent or improper conduct on the part of the CBA. Upon analysis, that material was not found to have any real evidentiary significance, or to have been previously unavailable to Mr Heinrich.
35 Order 21 r 2 of the Federal Court Rules requires attention to the proceedings in this Court. The proceedings instituted by Mr Heinrich in this Court in relation to his disputed indebtedness to the CBA are -
. the application to set aside the first bankruptcy notice,
. the application to set aside the second bankruptcy notice,
. the appeal from the making of the sequestration order, and
. the annulment application.
The issues he sought to raise in each of those proceedings had been substantially the same. Apart from the application to set aside the first bankruptcy notice, which was overtaken by events, the claims in each of those proceedings have been unsuccessful.
36 Sackville J said in Skyring at [54], 389 that it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. In this matter, the judgment in the debt action is of that character. Moreover, it has been referred to by Mr Heinrich in the proceedings in this court for two reasons. First, each of the proceedings in this Court has followed from the judgment in the debt action. Secondly, each of the proceedings in this court has involved the allegation by Mr Heinrich not simply that his indebtedness to the CBA was procured through contumelious conduct on the part of the CBA but also that the judgment in the debt action was itself the consequence of contumelious conduct on the part of the CBA. In my judgment, therefore, I consider it appropriate to have regard to the judgment in the debt action, including the issues which were then litigated and how those issues were resolved. The debt judgment authoritatively resolved adversely to Mr Heinrich each of the issues which he has since raised in the proceedings in this Court.
37 In each of the proceedings in this Court, Mr Heinrich has in one form or another raised some or all of the issues which he raised by way of defence and counterclaim in the debt action, and that the judgment in the debt action was procured through improper means.
38 I accept that he has a genuine belief in the rightness of his assertions on those matters. The exposure of the financial accommodation utilised by him between 1985 and 1992 is not readily apparent from the evidence before me (although I have no reason to find it could not be readily revealed by a comprehensive analysis of the records of the CBA). I accept Mr Heinrich has either not been presented with a comprehensive picture of his financial accommodation during that period, or that the documentation given to him is somewhat hard to comprehend and reconcile. In one or two respects, the material available to Mr Heinrich could understandably give rise to concern on his part, in particular the diary note referred to in [29] in the judgment in the annulment application and the fact that the bank statements thereafter were not sent to him except by addressing them to him at the CBA. However, as I noted at [7], the subjective belief of Mr Heinrich is not relevant to determination of an application under O 21 r 2 of the Rules.
39 It may be accepted that Mr Heinrich may have brought the application to set aside the first bankruptcy notice or the second bankruptcy notice with some cause. As indicated above, however, those applications were dismissed on grounds which did not involve any reconsideration of the issues upon which Mr Heinrich defended the claim of the CBA in the debt action and counterclaimed in the debt action. He raised those issues, but they were not the subject of judicial determination. They first required careful consideration in Mr Heinrich's opposition to the sequestration order. That of course was not a proceeding by Mr Heinrich. They were also pursued on his appeal to the Full Court from the making of the sequestration order. They have also been pursued in the annulment application.
40 I consider the appeal to the Full Court was a proceeding by Mr Heinrich against the CBA. The nature of a 'proceeding' is defined expansively in s 4 of the Federal Court of Australia Act 1976 (Cth), and is expressly said to include an appeal. I have reservations about whether the annulment application is a proceeding 'against any person' for the reasons identified by Finkelstein J in Horvath v Pattison and discussed in [9] above. However, as I then indicated, I do not consider that the CBA has shown that, by reason of the appeal or the annulment application, Mr Heinrich falls within O 21 r 2 at this time. They are the only two proceedings in which his claims against the CBA, reflecting his defence and counterclaim in the debt action, have been adjudicated upon in proceedings brought by him. Consequently, I am content to assume at present and in the absence of argument that the annulment application is a proceeding by Mr Heinrich against the CBA.
41 It remains to explain why I do not consider that either or both of the appeal and the annulment application bring Mr Heinrich within the scope of O 21 r 2.
42 In my judgment, the appeal from the making of the sequestration order was instituted by Mr Heinrich without any reasonable cause. The issues he raised as to his indebtedness to the CBA had been decided against him in the debt action. They had been raised, and rejected, in his opposition to the making of the sequestration order. As appears from the reasons for judgment of Branson J (with whom Heerey and Lindgren JJ agreed) in the Full Court, the thrust of the contentions by counsel for Mr Heinrich then was to pursue an order for an account under s 86 of the Act rather than to sustain the grounds of appeal challenging (again) the existence of debt to the CBA and the propriety of its conduct of the debt action. The limited focus on those issues by counsel on behalf of Mr Heinrich no doubt reflects the fact, as found by the Full Court, that there was little merit in the appeal on those matters.
43 The annulment application is the first of the proceedings by Mr Heinrich in the Court against the CBA in which the issues as to his indebtedness to the CBA, and its conduct of the debt action, have been fully explored and determined. They have been resolved against him. The evidence relied upon to demonstrate fraudulent conduct on the part of the CBA in relation to the existence and level of his indebtedness from time to time was found not to make out those claims. The attacks upon the conduct of the CBA in the debt action, including in relation to its discovery and in relation to the means by which it proved his indebtedness, failed. There were a few pieces of evidence which (as the judgment in the annulment action shows) could understandably have caused Mr Heinrich to wonder about the integrity of the CBA's records (see at [29-39], but overall the evidence pointed firmly to the integrity of those records. That is, of course, consistent with the judgment in the debt action. In my view, the annulment action was brought without any reasonable ground. It is hard to discern any evidence there adduced which was not previously available to Mr Heinrich during the debt action. The debt action carefully addressed the same issues, and on much the same evidence. The application for the sequestration order by the CBA, by reason of Mr Heinrich's opposition, also addressed the same issues, and also on much the same evidence. There was, therefore, little if anything new to justify the institution of the annulment application on the basis it proceeded.
44 However, it is upon the requirement that the proceeding be instituted 'habitually and persistently' that, in my view, the present application fails. It is not presently clear to me that Mr Heinrich has habitually and persistently done so. His proceedings have been partly responsive (the applications to set aside the two bankruptcy notices). He did not appeal from the decisions refusing to set aside the first bankruptcy notice or the second bankruptcy notice. He appealed from the making of the sequestration order, but I note the timing of that application was dictated by the Rules. The only proceeding which is entirely within his initiative, in terms of timing, is the annulment application.
45 At this point, I do not conclude that Mr Heinrich has as a matter of course, or almost automatically, instituted proceedings whenever the circumstances provide the opportunity to do so. It has not been shown that the proceedings he has instituted in the Court have been done 'habitually'. When one has regard to the proceedings in other Courts, the conclusion that he has habitually and persistently instituted proceedings without reasonable cause in relation to his indebtedness to the CBA would, I think, be more readily reached. But O 21 r 2 of the Rules requires that characterisation to be made in respect of the proceedings in this Court. At this point, I do not consider the institution of proceedings in this Court does have the necessary character of habitual. The appeal was instituted in September 2000, and judgment was given on 6 May 2001. No further proceeding was issued in the Court to raise the indebtedness to the CBA until the annulment application made on 4 September 2002. It was made by Mr Heinrich in person, and his evidentiary material was in part an attempt to present that which he claimed presented the issue of his indebtedness to the CBA in a fresh light, and with allegedly fresh evidence. The refinement of his position with the assistance of counsel revealed that there was little, if any, fresh evidence but I do not think Mr Heinrich sought to mislead the Court about that. As best I can, in the absence of oral evidence, and based upon Mr Heinrich's extensive affidavits, I understand he was giving his 'best shot' in a final attempt to demonstrate that he was not indebted to the CBA, consistent with a belief on his part to that effect. I suspect, although the circumstances would have to be determined at the time, that further proceedings by Mr Heinrich in this Court raising the same issues and in the absence of significant fresh evidence which he could not previously have been able to obtain with the expenditure of all reasonable effort might be imbued with habitual character.
46 The other descriptor of the proceedings used in O 21 r 2, namely persistence, is one which I consider has now been met. Mr Heinrich has, with determination, and it may fairly be said with a degree of stubbornness and in the face of the consideration of much the same material by the trial judge in the debt action, and by judges of this Court in his appeal from the sequestration order and in the annulment application continued with further proceedings.
47 On my findings, the CBA has satisfied me on each of the elements in O 21 r 2 other than that, to this point and presently culminating in the annulment application, Mr Heinrich has habitually brought proceedings in this Court which are vexatious. The decision in the annulment application has addressed afresh the matters he has now raised in several proceedings in this Court, and in other courts. It is to be hoped that Mr Heinrich now accepts that, whatever belief he may hold about the conduct of the CBA or his indebtedness to the CBA, the complaints he has on those matters have been the subject of final and authoritative judicial determination. Whilst it is important to recognise and give effect to the fundamental principle that every person has a right of access to a court to seek remedies in consequence of alleged infringement of that person's rights, there is a legitimate countervailing policy. It is expressed by Sackville J in Skyring at [52] as protecting the community and the Court from unwarranted usage of the Court's time and resources and to protect those who face actions which lack substance from loss: Sackville J at [67], 392 added:
'The cost to the court system and the community of litigants who refuse to accept that a point has been decided authoritatively against them, or who are otherwise determined to pursue hopeless courses in the courts, can be very high. Such litigants are often immune to costs orders and exempt from paying the court fees which other litigants must meet.'
48 I do not propose to make the orders presently sought under O 21 r 2 by the CBA. I will hear the parties as to any other orders which should be made.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.