Croker v Commonwealth Bank of Australia

THE COURT: 1 Before the Court is a motion to dismiss an appeal as incompetent, the appeal being from an order which itself summarily dismissed the proceedings. 2 The history of the matter can briefly be stated as follows. 3 The proceedings were commenced by an application filed 28 July 1999 and a statement of claim filed 30 September 1999. Justice Tamberlin ordered on 2 March 2000 that the statement of claim be struck out, and granted leave to re-plead within 14 days. The appellant then filed an (amended) statement of claim on 17 March 2000. On 10 April 2000 Tamberlin J dismissed the application. Mr Croker, the appellant, now seeks to appeal from this order. 4 Mr Croker claims that on 9 January 1997 he entered into a continuing credit agreement with the respondent ("the Bank") with a credit limit of $3,000. By Mr Croker later ticking a box on a form, the amount of the credit limit was subsequently increased and Mr Croker borrowed money up to the increased limit. Mr Croker was unable to meet the amount of the debt, which, combined with interest, is now in the order of $5,000. 5 The (amended) statement of claim makes a number of allegations against the respondent, including breach of contract, breach of fiduciary duty, breach of equitable duty to act in good faith for the benefit of another, and misleading and deceptive conduct. 6 In dismissing the application, Tamberlin J said: "….I am satisfied to the high standard required by the decision of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 1112 CLR 125 that the pleadings advanced by Mr Croker disclose no arguable cause of action within the meaning of O 20 r 2. I am also of the view that the proceeding is frivolous or vexatious and an abuse of process. Accordingly, having given an indulgence on a previous occasion and some indication as to what is necessary, and having regard to the additional matters raised by Mr Croker, I am satisfied that this is a case where the proceedings must be dismissed generally." 7 The appellant appeals from the whole of the judgment of Tamberlin J given on 10 April 2000. The respondent has moved that the appeal be dismissed as incompetent, relying on s 24(1A) of the Federal Court of Australia Act 1976 (Cth) which provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave to appeal. 8 The distinction between final and interlocutory orders was discussed in Hall v Nominal Defendant (1966) 117 CLR 423. Taylor J said (at 440): "So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of process of the Court has been treated as interlocutory: Hind v Marquis of Hartington (1890) 6 TLR 267. The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v Insole (1891) 64 LT 703 and of an order dismissing an application as frivolous and vexatious in In re Page [1910] 1 Ch 489." 9 In our view, the present situation falls squarely within this reasoning. The orders of Tamberlin J are clearly interlocutory. Therefore the objection to competency ought to be upheld. We then must decide whether, in the present case, leave to appeal should be granted. 10 The test for whether leave to appeal is granted or refused, as described in Decor Corp v Dart Industries Inc (1991) 33 FCR 397, is, firstly, "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court" and, secondly, "whether substantial injustice would result if leave were refused, supposing the decision to be wrong". 11 In our view, neither the (amended) statement of claim, nor any other of the documents filed by the appellant discloses a reasonable cause of action. 12 Moreover, the amount in dispute is in the order of $5,000 and no special federal element appears to be involved here. In short, there is no reason why any proceedings could not have been commenced in the Local or District Court. 13 It follows, therefore, that no proper ground for grant of leave has been established. Leave to appeal ought to be refused, with costs.