Coutsournas v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 Before the Court is an application for an extension of time within which to seek leave to appeal against orders made by Dodds-Streeton J on 20 August 2010. Her Honour ordered that the proceeding brought by the applicant, Peter Coutsournas, against the respondent, Commonwealth Bank of Australia (the Bank), be dismissed as vexatious and an abuse of process. The orders were made on the notice of motion filed by the Bank on 1 July 2010, which sought that the proceeding be dismissed pursuant to O 20 r 5 of the Federal Court Rules. 2 In the proceeding, Mr Coutsournas made various claims against the Bank, which her Honour sets out in her reasons for judgment. The claims were for damages amounting to tens of millions of dollars arising out of the failure of a business operated by Southern Food Management Pty Ltd, a company controlled by Mr Coutsournas. 3 Mr Coutsournas' primary complaint was that the Bank dishonoured cheques written for the business and that the dishonours were the cause of the failure of that business. The complaints made by Mr Coutsournas were litigated in a number of proceedings brought in the Victorian Civil and Administrative Tribunal (VCAT). In some of those proceedings orders were made in favour of Mr Coutsournas, and in others orders were made in favour of the Bank. 4 In her Honour's reasons for judgment, Dodds-Streeton J sets out comprehensively the way in which Mr Coutsournas explained his complaints against the Bank. She also sets out at length each of the previous proceedings brought in VCAT by the applicant or Southern Food Management Pty Ltd against the Bank. 5 Her Honour drew attention to the high threshold which an applicant for summary dismissal needs to establish. She applied that principle to the determination of the Bank's motion. 6 There were two essential grounds for her Honour's orders to dismiss the proceeding. Firstly, the manner in which the claims were articulated was so unclear, confused and ambiguous that the proceeding as expressed had no reasonable prospect of success. 7 Secondly, the essence of the complaints were substantially dealt with by VCAT. Her Honour said that the complaints had been made by the Bank repeatedly and unsuccessfully. 8 Her Honour's order dismissing Mr Coutsournas' proceeding as vexatious and an abuse of process is regarded as interlocutory: Re Luck [2003] HCA 70; (2003) 203 ALR 1; (2003) ALJR 177; Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401; (2009) 259 ALR 319. Mr Coutsournas therefore requires leave to appeal from her Honour's judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 9 In exercising its discretion to grant an extension of time within which to seek leave to appeal, relevant considerations for the Court are whether there is a satisfactory explanation for the delay, whether the application for leave to appeal has such prospects of success as not to render the extension of time an exercise in futility, and whether there are special reasons for permitting the appeal to proceed as required by O 52 r 15(2): Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802, at [20]. 10 Mr Coutsournas had 7 days within which to file an application for leave to appeal against the judgment of her Honour: O 52 r 10(2A)(b) Federal Court Rules. He ultimately filed a document entitled "Application for extension of time to file and serve notice of appeal" on 23 May 2011. There was therefore a delay of over eight months. 11 Mr Coutsournas said that he delayed filing an application for leave to appeal because the Bank had promised that it would not pursue costs against him if he did not appeal. He said that despite this promise, the Bank, through its solicitors on 15 January 2011, made a claim for the costs of the proceeding. He said that he phoned the solicitors for the Bank within two weeks and, after some delay, composed a letter which he sent to the solicitors on 9 May 2011. This explanation was not the subject of any affidavit evidence and was contested by Mr Moffat, who appeared on behalf of the Bank. A view on this issue is not determinative of the application. 12 The proposed notice of appeal sets out four grounds of appeal as follows: 1. Justice Dodds-Streeton erred by not disclosing if she held shares with the four major banks in a conflict of interest situation or not, which the Respondent is one of these banks and to have removed her self if she did held any shares. 2. Justice Dodds-Streeton erred by deciding on the case. Justice Dodds-Streeton only had to find cause to send to trial to which there was cause to send to trial. 3. Justice Dodds-Streeton erred in that the court is meant to regulate the self-regulating financial industry which includes the Respondent and not throw out legitimate claims on the demands of the Respondent, who also argued is above the law and that no tribunal or court can go against it. 4. Under U.C.C (Uniform Commercial Code) to which Australia is a party to and abides by, Article 4, section 4-402(b) "A payor bank is liable to its customer for damages proximately caused by the wrongful dishonour of an item. Liability is limited to actual damages proved and may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonour is a question of fact to be determined in each case". 13 The first proposed ground alleges that Dodds-Streeton J was bound to disclose whether or not her Honour held shares, not only in the Bank, but in any of the four major banks. This proposed ground of appeal is hopeless. There is no legal obligation on a judge to disclose that they do not hold shares, not only in the Bank which is party to the proceedings, but in other commercial enterprises in the same industry which are not parties to the proceedings. 14 The second proposed ground of appeal seems to take issue with the principle upon which an application under O 20 r 5 of the Federal Court Rules is to be determined. However, the reasons for judgment indicate that her Honour adopted the correct principle in determining the application. 15 The third proposed ground is a general statement of the perceived role of the Court as a regulator of the financial industry and seems to complain generally about the result that the proceeding brought by the applicant was unsuccessful. Insofar as the ground is a general statement of the role of the Court in the financial industry it does not advance any ground of appeal which could be successfully argued. Insofar as the ground makes a general complaint that the proceeding was not successful, it provides no particulars of the basis of that complaint related to the facts of this case. 16 The fourth proposed ground refers to an international instrument to which it is alleged Australia is a party. Whether the Uniform Commercial Code provides for a cause of action for a person in Mr Coutsournas' position is not a matter to which any argument was directed. In any event, the Uniform Commercial Code was not a matter which was argued before the primary judge. No allegation in the notice of appeal is made of any error made by the primary judge in respect of the Uniform Commercial Code. No such allegation is available because the matter was not ventilated before her Honour. The fourth proposed ground does not provide a basis for any possible success in an appeal. 17 It follows from these reasons that the application for leave to appeal has no real chance of success. It would be futile to grant an extension of time for filing of the application for leave to appeal. There are no special reasons for permitting an extension of time. Consequently, the application for an extension of time must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.