Donnelly v Australia and New Zealand Banking Group Limited

Amendment of Defence

1. The plaintiff has lost her home and is understandably aggrieved. Her desperation has however led to one unreasonable application after another. Her fundamental complaint on this application is that the refusal to allow the amendment of her defence on 13 November 2013 was infected by an absence of procedural fairness, a denial of natural justice, a reasonable apprehension of bias and irregularity. She contended before Stevenson J that the Bank owed her a duty to inform her of the availability of forward exchange contracts as protection against a unilateral loan currency conversion by ANZ Asia Limited. In effect, she alleged that there was non-disclosure by the Bank of something that the Bank had a duty to inform her about.
2. In the written submissions put forward on behalf of the plaintiff on this application, she asserts that: 'His Honour immediately abandoned his judicial independence and became an advocate for ANZ and immediately rejected the leave application'. She added that Stevenson J: 'misunderstood and confused the leave application and pleaded ANZ's case by saying that ANZ would be entitled to an adjournment to consider further evidence without having heard from ANZ and without consideration of the fact that in any event the further hearing date of 15 November was available'.
3. I have no sympathy for the plaintiff's contentions. The transcript of the hearing before Stevenson J on 13 November 2013 includes this exchange: HIS HONOUR: Where is the pleading of a duty, of a failure to comply with a duty to apply to that forex contracts post draw down. RYAN: It is not specifically included, your Honour. HIS HONOUR: Well, how can you rely upon it. RYAN: Well, if necessary, your Honour, I would seek leave to amend. HIS HONOUR: Well, if you do that, if you make that application, I will deal with it when you make it, if you make it. But at the moment, that is not the pleading, and I am only going to decide this case on the basis of the pleading. RYAN: Yes, your Honour. I will seek to insert (vi), your Honour, in paragraph 3(l) of the amended defence of 7 November, to the effect that before settlement of the proposed loan took place in or around 22 to 25 August 2008, that the Australian dollar had begun to decline on the foreign exchange as against the Hong Kong dollar, and the second plaintiff owed a duty to the second defendant to advise the second defendant of that decline or fall, and to advise the second defendant of the availability of forward exchange contracts to protect the borrowers against such a fall. HIS HONOUR: If that is an application to amend your pleadings to that effect, I reject it. It is far too late. It changes the case fundamentally, and I won't entertain it.
4. His Honour subsequently gave the following formal reasons: He [counsel for Mrs Donnelly] then made the following oral application to amend par 3(l) of the Defence to add words to the effect of a proposed subparagraph (vi): I would seek to insert (vi), your Honour, in paragraph 3(l) of the amended defence of 7 November, to the effect that before settlement of the proposed loan took place in or around 22 to 25 August 2008, that the Australian dollar had begun to decline on the foreign exchange as against the Hong Kong dollar, and the second plaintiff owed a duty to the second defendant to advise the second defendant of that decline or fall, and to advise the second defendant of the availability of forward exchange contracts to protect the borrowers against such a fall. It is far too late for the second defendant to make such an application. It is obvious that, in order for the second defendant to make the application, there would have to be an adjournment of these proceedings so that the plaintiff could: (a) consider the significance of the amendment to the pleadings; and (b) consider whether to adduce further evidence in relation to the proceedings. In those circumstances, I refuse to allow the amendment.
5. What is astounding about this application is that the substantive matter of which the plaintiff complains, namely the existence of a duty of disclosure and a breach of that duty, were rather generously dealt with by the Court of Appeal in the hearing of the plaintiff's appeal from the final decision of Stevenson J.
6. On 1 April 2014 during the hearing of the appeal, the Court of Appeal was made aware that the duty of disclosure point had been raised before the primary judge and that an application to amend to include such a claim had been rejected. Leeming JA stated that in relation to that ground, it was necessary to overturn the decision rejecting the application to amend.
7. In fact, no application for leave to appeal from the interlocutory decision of Stevenson J was ever made. Nonetheless the Court of Appeal chose to deal with the substance of the allegation of non-disclosure. In its decision and reasons given on 9 May 2014, the Court considered the essential facts which gave rise to the allegation of non-disclosure and held that: There was therefore no non-disclosure by the Bank and this ground of appeal should be rejected.
8. That finding effectively carries with it the conclusion that Stevenson J was justified in refusing leave to amend and that if leave to appeal had been granted the ground of appeal would have failed.

Moderation and Judgment

1. There are other more worrying aspects of this application which further justify its dismissal. The history of these proceedings indicates not just a determination by the plaintiff to doggedly pursue her supposed rights, but an attitude by both her and her legal representatives which is inappropriate for the efficient conduct of proceedings in this Court at any time.
2. This Court functions mostly efficiently in dispensing justice to thousands of litigants when it receives the co-operation of legal practitioners who make judgments with good sense and moderation about the merits of their clients' claims. When that good sense and moderation are absent, there can be a proliferation of unnecessary and often hopeless applications. We see it from time to time with litigants in person. We do not expect to see it when litigants are legally represented.
3. I had occasion some years ago to emphasise the need for sensible co-operation and sound judgment by counsel. In Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at [22] I said that: Counsel's duty to the court requires them, where necessary, to restrain the enthusiasms of the client… whatever misapprehensions the client may have… The efficient administration of justice depends upon this co-operation and collaboration. Ultimately this is in the client's best interest. It is more likely to ensure that a just result is reached - sooner and with less expense.
4. And again in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 at [30] I said that: It needs to be emphasised that the efficient conduct of commercial litigation, indeed all litigation, can only be assisted by restraint, moderation, sensible co-operation and sound judgment by counsel. Indeed the due administration of justice demands it… The duty of counsel in this regard is part of the wider duty to the court to which I referred in Thoma v SMP (International) Pty Ltd [2010] NSWSC 822 at paras [19]-[22]. It is also a manifestation of the statutory duty imposed on practitioners by s 56 of the Civil Procedure Act, 2005 (NSW).
5. In Giannarelli v Wraith (1988) 165 CLR 543 at 556-7 Mason CJ highlighted the importance of counsel exercising 'independent' judgment to aid the efficient administration of justice: …a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice… counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case… This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
6. This aspect of counsel's duty is also encapsulated in Reg 42 of the Legal Profession Uniform Conduct (Barristers) Rules 2015: A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently.
7. And as the Hon Gerard Brennan AC KBE observed in 'Ethics and the Advocate', Bar Association of Queensland, Continuing Legal Education Lectures, No. 9/92 - 3 May 1992, counsel 'is not an amanuensis or spokesperson for a client'.

The Tortured History

1. The sequence of events and the proliferation of litigation in this controversy is bordering on disgraceful. It is as follows: 1. On 22 September 2011, the Bank commenced the original proceedings against the plaintiff seeking recovery of a debt and possession of property. 2. The original substantive hearing took place on 11, 12, 13 and 15 November 2013 before Stevenson J. 3. The application to amend was made and dismissed on 13 November 2013. I should interpolate to say that a cross-claim, which also pleaded something like a duty of disclosure, had been abandoned on the first day of the hearing. 4. On 29 November 2013, Stevenson J delivered judgment. 5. On 11 December 2013, the plaintiff filed a Notice of Appeal from the decision of Stevenson J. 6. On 1 April 2014, the hearing of the appeal took place. During that appeal, as I have observed, there was some reference to the refusal of the amendment application by Stevenson J. In any event, as I have also reiterated, the Court dealt with the substance of the non-disclosure claim and found that there had been non non-disclosure. 7. On 6 June 2014, the plaintiff sought special leave to appeal to the High Court of Australia. It was refused. 8. On 13 January 2015, the plaintiff filed a Notice of Motion seeking to re-open her appeal in the Court of Appeal. That application was dismissed. 9. On 13 April 2015, the plaintiff filed her first 'judicial review' application. 10. On 13 May 2015, Darke J dismissed, on a summary basis, the first 'judicial review' proceedings. 11. On 17 June 2015, the plaintiff filed a Notice of Appeal from the summary dismissal by Darke J of her first judicial review proceedings. 12. On 3 August 2015, that Notice of Appeal was dismissed as incompetent. 13. On 31 July 2015, the plaintiff filed a Summons seeking leave to appeal from the decision of Darke J. It was dismissed on 4 November 2015. 14. On 7 December 2015, the plaintiff filed a second summons seeking 'judicial review'. It is before me today.
2. In addition to that sorry litany of wasted litigation, I should observe that the plaintiff made three unsuccessful stay applications which were determined in 2013 and 2014. And there have been numerous costs orders made against her, including indemnity costs orders.

Finality of Litigation

1. I am afraid the time has come to put a stop to this unnecessary litigation. Enough is enough. I have already expressed my concern about the conduct of these proceedings and the responsibilities of the plaintiff's legal representatives to act with good judgment, common sense and moderation. The plaintiff has failed comprehensively at every step along the way. The public resource of the courts is not available to indulge endlessly the misconceived whims of disappointed litigants. The public interest in the finality of litigation requires that an end be brought to hopeless causes. It is time to close the book. And it is appropriate to repeat the wisdom of Lord Wilberforce in The Ampthill Peerage [1977] AC 547 at 569 : … the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and there are cases where the law insists on finality.

Summary Dismissal

1. What is before me is an application by the Bank for the summary dismissal of the plaintiff's summons for 'judicial review'. It is based upon the grounds set out in UCPR 13.4. The Bank seeks the dismissal of these proceedings on the grounds that they are frivolous and vexatious or that no reasonable cause of action is disclosed or that the proceedings are an abuse of the Court. It also seeks an order that the plaintiff be prohibited, without the prior leave of the Court, from filing any further application or instituting any further proceedings in relation to the original 2011 proceedings or the subject matter of those proceedings, including the loan agreement and the mortgage with which those proceedings dealt.
2. In the circumstances, given the utterly misconceived nature of the summons - whether or not it seeks to rely upon the inherent jurisdiction of the Court - and given the entirely unmeritorious and unsatisfactory history of this litigation, an order prohibiting the plaintiff in those terms is justified. The interests of 'peace, certainty and security' require it. An indemnity costs order is also justified but that will be of little solace to the Bank. Indeed, if an appropriate application were made, I would consider the making of a costs order personally against the plaintiff's legal representatives.
3. For those reasons, I make orders in accordance with prayers 1, 2, 3 of the Notice of Motion dated 19 February 2016.

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