Giunta v Commonwealth Bank

Supreme Court of NSW|2008-03-11

CITATION : Giunta v Commonwealth Bank [2008] NSWSC 222

(1) An extension of time to appeal is refused. (2) Leave to appeal is refused. DECISION : (3) The orders made on 10 August 2006 in Local Court proceedings numbered 13351/95 are affirmed. (4) The summons filed 24 January 2007 is dismissed. (4) The statement of claim filed 2 May 2007 is dismissed. (5) The plaintiff is to pay the defendants' costs as agreed or assessed.

LEGISLATION CITED : Limitation Act 1982 Local Courts Act 1982

CASES CITED : Jackamarra v Krakouer (1998) 195 CLR 516; (1998) 153 ALR 276 Port of Melbourne v Anshun Pty Ltd (1981) 147 CLR 589

John Giunta (Plaintiff) PARTIES : Commonwealth Bank of Australia (First Defendant) Bruce Quinn (Second Defendant)

D Brezniak/D Nagle (Plaintiff) COUNSEL : JM White (First Defendant) B Quinn (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

10476/2007 - JOHN GIUNTA v COMMONWEALTH BANK OF AUSTRALIA & Anor

JUDGMENT (Extension of time to appeal, leave to appeal decision of Local Court) 1 HER HONOUR: This matter was originally commenced by summons. It was ordered to proceed by way of pleadings. By statement of claim filed 2 May 2007 the plaintiff seeks firstly, "an order declaring a nullity the order of the Local Court given on 10 August 2006 in matter number 13351 of 2005 as arising from an abuse of process; and secondly, that the matter be referred to the Local Court to be heard on its merits." On 9 July 2007, the first defendant filed a defence on 9 July 2007. On 29 May 2007, the second defendant filed his defence. The plaintiff in these proceedings is John Giunta (Mr Giunta). The first defendant is the Commonwealth Bank of Australia (the Bank). The second defendant is Bruce Quinn (Mr Quinn). For convenience, in this judgment I shall refer to the parties by name. 2 Mr Giunta relied on his three affidavits sworn 23 January 2007, 5 September 2007 and 11 December 2007. The Bank relied on the affidavits of John Lanser sworn 26 October 2007 and Mathew Wong sworn 26 October 2007. Mr Quinn relied on his affidavit sworn 22 October 2007. Mr Giunta, Mr Lanser and Mr Quinn were cross examined. Mr Giunta and the Bank were legally represented by counsel. Mr Quinn acted as counsel for Mr Giunta in the Local Court but was unrepresented in this Court. Mr Quinn was not a party in the Local Court proceedings but has been named as a defendant in these current proceedings.

Proceedings in the Local Court 3 Mr Giunta had issued two statements of claim in the Local Court in 1995. He filed a statement of claim in the Local Court against the Commonwealth Bank proceedings No 14441/95. It is common ground that the pleadings in 14441/95 are the same as that in 13351/05. Mr Giunta says that proceedings No 14441/95 were withdrawn. The solicitor acting for the Bank, Mr Lanser says that proceedings 14441/95 were dismissed. There is a third version of the orders made. The Registrar, by letter dated 10 March 2008, advised the Bank that in proceedings 14441/95 between Giunta v Commonwealth Bank, that at the hearing on 16 November 1997 the Court's decision was for judgment in favour of the defendant and that he "can find no order as to costs". (Ex 1D/1). I accept that in proceedings 14441/95, judgment was entered in favour of the defendant. 4 It is the proceedings numbered 13351/95 that are the subject of these current Supreme Court proceedings. Proceedings numbered 13351/95 were listed for hearing in the Local Court on 10 August 2006, when terms of settlement were filed. 5 The terms of settlement were that there be verdict and judgment for the defendant and no order as to costs (Ex 2D/1).

The plaintiff's claim in these current Supreme Court proceedings 6 The plaintiff's claim is best set out in Annexure "A" to the statement of claim. It states: "In or about August 1984, the plaintiff paid the first defendant an amount of $52,621.17 to forward to Italy through the bank account of the plaintiff with the defendant.

The plaintiff was then a customer of the first defendant at its branch at Neutral Bay in the state of New South Wales.

The said sum or amount of money was returned to the first defendant in Australia but not refunded to the plaintiff nor account made or given to the plaintiff of the said sum of $52,621.17.

The plaintiff has made repeated claims and requests to the first defendant but the said first defendant has declined repayment to the plaintiff of the said sum of money or part of the said sum of money.

Further or in the alternative the first defendant has converted the plaintiffs property to its own use.

Further, or in the alternative, the plaintiff's claim is for money payable to the plaintiff by the first defendant for money had and received by it for the use of the plaintiff.

The claim by the defendant was for the return of his money held wrongfully by the defendant.

The plaintiff commenced legal proceedings against the first defendant on the 15 December 2005 by way of statement of claim filed in the Local Court on the 29 November 1995. The plaintiff thereafter filed an amended claim on the 29 July 1997. At some time thereafter the plaintiff caused to be discontinued the said claim against the first defendant. Thereafter, on the 15 December 2005, the plaintiff filed a statement of claim in the Local Court of New South Wales at the Downing Centre against the first defendant. The plaintiff retained the second defendant as his legal representative for the hearing of he (sic) claim set down for hearing on the 10 August 2006.

The first defendant caused to be filed in the legal proceedings a Notice of Motion seeking to have heard as preliminary matters legal arguments raised in its defence. The first defendant by its motion sought legal determination from the court as to a prior discontinuation of proceedings filed on the 27th November, 1995 by me against it and legal arguments as to the application to those proceedings of the equitable doctrines of merger, estoppel, res judicata and Anshun defences as well as an argument under the Limitation Act 1969.

On the 10 August 2006 the plaintiff attended at the Downing Centre Local Court with Mr Quinn attended at the chambers of the second defendant.

Thereafter and on the same date the plaintiff attended at the Downing Centre Local Court with and in the company of the second defendant.

The plaintiff then in the company of the second defendant met with and spoke to a male person, Mr Lanser, for and on behalf of the first defendant.

Shortly thereafter the first defendant and the second defendant presented to the plaintiff a document entitled "Terms of Settlement".

The second defendant in the company of and in the presence of the first defendant spoke to the plaintiff as a result of which the plaintiff at that time and place signed the said "terms of settlement".

The first and second defendant thereafter entered the court.

The plaintiff was thereafter informed by the second defendant that the court had made an order in the terms of the Deed of Settlement".

The plaintiff signed the Deed of Settlement as a result of overwhelming and unbearable pressure placed upon him by the words and actions of each of the first and second defendant.

The plaintiff did not sign the deed of settlement voluntarily.

The Plaintiff seeks leave to appeal the decision of the Downing Centre Local Court given in the proceedings on the 10 August 2006 and for time to apply to be extended." 7 The male person referred to above appears to be Mr Wong who was counsel appearing for the Bank on 10 August 2006. 8 Mr Giunta says that he has little formal education and has a limited command of the English language. Mr Giunta gave evidence in this Court with the assistance of an interpreter. He answered some questions in English without the assistance of the interpreter. Some questions and answers were translated. Mr Giunta was asked to read documents. Mostly he did that without the assistance of the interpreter. From the answers he gave, after he had read the document I am satisfied that he understood their contents. The document above was prepared by him, as were his affidavits. There is no statement on the affidavits to the effect that they have been translated from the Sicilian language to English. These documents demonstrate that Mr Giunta has a very good command and understanding of written English.

The events of 10 August 2006 9 From the "pleading" referred to earlier, Mr Giunta says that although consent orders were filed at the Local Court in proceedings 13351/05 on 10 August 2006, he did not sign the terms of settlement voluntarily and seeks leave of this Court to have those terms of settlement set aside and that the matter be remitted to the Local Court so he can have his claim determined on its merits. He also claims that there was an abuse of process. 10 The circumstances that gave rise to Mr Giunta signing the terms of settlement are in dispute. I shall reproduce the evidence of Mr Giunta, Mr Lanser and Mr Quinn. 11 Mr Giunta's version of events is contained in his affidavits. Mr Giunta's version is as follows: "8. When eventually the matter was listed for hearing, on the 10 August 2006, the defendant, the Commonwealth Bank of Australia, filed a notice of motion seeking to have heard as preliminary matters legal arguments raised in its defence. Those legal matters were the discontinuation of the proceedings commencing on the 27 November 1995, legal arguments as to merger, estoppel, res judicata and defences as well as an argument under the Limitation Act 1969 . 9. On the 10 August 2006 I attended at the chambers of Mr Quinn in Phillip Street Sydney. I had a brief conversation with him and said to him: "Do you think that it is better we get an interpreter because my English is no good." He said: "No, its not necessary." Thereafter, I attended at the Downing Centre Local Court with Mr Quinn, Barrister, travelling there by taxi. Shortly after we arrived at Court, I took a seat on level 5 and I saw Mr Quinn in conversation with Mr Lanser who I have known from my previous dealings with this litigation. Mr Lanser was in the company of another male person who I did not then nor now know. 10. Shortly afterwards, I was approached by Mr Quinn and Mr Lanser and the other man to whom I have referred above and Mr Lanser had in his hands and holding out to me the document entitled "Terms of Settlement". The document did not at that time have signatures on it. … 11. At the precise time that Mr Lanser held out the document to me Mr Quinn, then in his company, said to me and in the presence of Mr Lanser and the other man: "The case is too old and you can lose your house, you better sign." Then I said: "Why can't we go inside and let the Judge decide my case." He then said to me again: "The case is too old and you can lose your house; you better sign." I then signed the document with a pen given to me then by Mr Lanser. I then gave the document to Mr Lanser who signed the document in my presence with the same pen which I had used and returned to him for the purpose of signing. I saw the document after it was signed by Mr Lanser and said to him, pointing to the document: "That is not your name." He then said to me: "It doesn't matter." 12. Thereafter, I saw Mr Lanser go to the office in the Court building on the 5th floor after which he returned to me with some pages. Mr Lanser then handed to me a page being apparently a copy of the other pages …. 13. I say that at no time did I enter any Courtroom on that day. I do believe that the lawyers did enter the Courtroom. 14. I say that the reason I signed the page is because Mr Quinn said to me: "The case is too old and you can lose your house." I say that Mr Quinn had previously said to me that the case is too old. I say that he had never previously said to me that I could lose my house. I say that when he said to me that I could lose my house I was frightened and I did not have enough time to think and made a careful or correct decision about the proceedings. I say that had I been given enough time I would not have agreed to sign away my rights to the money which I had given to the bank. I say my house is my sole real estate upon which I have a mortgage and that I own a motor vehicle which is nine year old. 15. I say that my claim for the money which I paid to the Bank in 1984 has never been heard by any Court and I wish to have a hearing on the merits of my claim against the Bank."

The version of events according to Mr Lanser, the solicitor acting for the Bank 12 Mr Lanser deposed (Aff, 26/10/2007 [3]-[14]) that on 10 August 2006, he was present at the Local Court, Downing Centre to instruct counsel briefed on behalf of the Commonwealth Bank, Mr Wong, in a notice of motion filed by the Bank which sought determination, as a preliminary matter, of certain issues in those proceedings. Mr Wong's version of events is similar to that of Mr Lanser so there is no need to reproduce it here. 13 Mr Lanser says that he recalled seeing Mr Giunta in the area outside the courtrooms on level 5 in the presence of a person who he now knows to be Mr Quinn, the second defendant in these proceedings. Mr Lanser was present in one of the courtrooms when the Magistrate called through the list. Mr Quinn announced his appearance on behalf of Mr Giunta and Mr Wong announced his appearance on behalf of the Bank, after which they all left the courtroom. 14 Mr Lanser says that he retired a short distance towards the area immediately outside the Registrar's court leaving Mr Wong with Mr Quinn. He observed that they appeared to have a conversation but he was not party to it and was too far away to overhear any of it. The area was crowded. After a few minutes Mr Wong came across and joined him. Mr Wong and Mr Lanser spoke only briefly about the proceedings but otherwise conversed socially. 15 After a relatively short time Mr Quinn approached then he said words to the effect that the proceedings should be discontinued on the basis that there be no order as to costs. Mr Lanser said words to the effect, "I will not consent to a discontinuance, there must be a dismissal in order to creates a res judicata because discontinuance would leave Mr Giunta free to bring the same claim again in the future, and we have already been through all this 10 years ago." 16 Mr Quinn said something to the effect that he understood Mr Lanser's view. He then left and returned to where Mr Giunta was standing about 30 feet away. They appeared to have a conversation to which Mr Lanser was not party and the contents of which he could not overhear. After a further short time Mr Quinn against approached Mr Lanser and Mr Wong. He said words to the effect that Mr Giunta would agree to dismissal if there were no costs order. He asked Mr Wong to prepare some short minutes. 17 Mr Wong wrote out the short minutes, and handed the documents (then unsigned) to Mr Quinn. Mr Quinn then left them and walked back to where Mr Giunta was standing. Mr Lanser did not overhear any conversation. After a further few minutes Mr Quinn returned to Mr Lanser and Mr Wong with Mr Giunta following closely behind. Mr Giunta appeared sombre. While he was still a pace or two away Mr Quinn said relatively loudly, "Unfortunately, Mr Giunta will not be contacting you any more." Mr Quinn then turned to Mr Giunta and said words to the effect, "You understand this is the end now. It is all finished." Mr Giunta nodded in apparent acknowledgment but Mr Lanser did not hear him say anything. Mr Giunta then signed the terms of settlement and Mr Lanser signed them on behalf of the Bank. 18 Mr Quinn, Mr Wong and Mr Lanser then returned to the courtroom where, the short minutes were handed to the Magistrate and orders were made. Mr Lanser does not recall seeing Mr Giunta in the courtroom at this time.

The version of events according to Mr Quinn, counsel who appeared for Mr Giunta 19 Mr Quinn deposed (Aff, 22/10/2007 [3]-[16]) initially, that Mr Giunta approached Mr Quinn one day in the Downing Centre Local Court and asked him (Mr Quinn) for his name among other things. 20 Mr Giunta then turned up at Mr Quinn's chambers unannounced and began telling Mr Quinn about his problems with the Police and the Commonwealth Bank. Mr Quinn sorted out Mr Giunta's problems with the Rock's Police over the telephone. 21 On 9 August 2006, Mr Giunta arrived at Mr Quinn's chambers with a statement of claim issued out of the Local Court in relation to suing the Commonwealth Bank for missing money back in 1984. Mr Giunta informed Mr Quinn that the matter was outside the limitation period but that he would assist Mr Giunta the next day to sort the matter out. Mr Quinn was only briefed with the statement of claim and a defence. 22 On 10 August 2006, Mr Quinn and Mr Giunta attended the hearing of the statement of claim in proceedings No 13351/2005 in the Downing Centre Local Court. They travelled to Court by taxi. When Mr Quinn arrived at court, he found out that the matter had been listed for a hearing of a "notice of motion" to have a number of preliminary matters resolved. Mr Quinn and Mr Giunta met with Mr Wong of counsel and Mr Lanser solicitor in the foyer outside court 5.9, the Registrar's call over court, between the notice board and the stairs. Mr Quinn was handed an affidavit of Mr Lanser, a notice to produce and a defence, all of which had previously been served on Mr Giunta. 23 Mr Quinn read Mr Lanser's affidavit which confirmed that the matter was outside the limitation period and also had been heard before on 26 November 1997, when Mr Giunta had signed terms of settlement, giving a verdict to the Bank with no order as to costs. Mr Quinn walked away with Mr Giunta towards the assessor's court 5.8 about five metres away. Mr Quinn read the documents to Mr Giunta. 24 Mr Quinn said, "This matter has been settled before and its is out of time. This is a matter that can settle, however that's something you will have to decide. The other party is seeking costs. As you own a house this is a matter that you should take into account." Mr Giunta said. "Settle the matter with no costs." Mr Quinn then walked over to Mr Lanser and said, "I have instructions to settle, no order as to costs." Terms of settlement were drawn up by Mr Lanser. Mr Quinn walked back over to Mr Giunta who was near the assessor's court and then read the terms of settlement to Mr Giunta. Mr Quinn said, "Once you sign the terms of settlement, that's the end of the matter for all time. Do you understand that?" Mr Giunta said, "Yes." 25 The terms of settlement were then handed to Mr Giunta. Mr Quinn then said to Mr Giunta "Read the terms of settlement out aloud." Mr Giunta then read the terms out aloud. He then placed them on the table near the assessor's court, then signed the terms of settlement. The terms of settlement were then taken over to Mr Lanser who was about five metres away on the eastern side of the entrance to court 5.8. Mr Lanser then signed the terms of settlement on behalf of the Commonwealth Bank. The terms of settlement were taken by Mr Quinn to the Civil Claims Office of the Local Court, and then photocopied by a female staff member in the registry. A copy of the terms was handed to Mr Giunta. Mr Quinn then went with Mr Lanser and handed up the terms of settlement signed by both parties to Magistrate Price in court 5.7. 26 Mr Quinn came out of court and said to Mr Giunta, "The court has made orders in accordance with the terms of settlement." Mr Quinn then caught the lift with Mr Giunta to the ground floor and they parted company outside the front entrance to the court. 27 The events as recounted by Mr Lanser and Mr Quinn are at odds with the plaintiff' version. I accept that Mr Quinn at one stage did say to Mr Giunta "This matter has been settled before and its is out of time. This is a matter that can settle, however that's something you will have to decide. The other party is seeking costs. As you own a house this is a matter that you should take into account."

Extension of time to appeal 28 The summons was filed on 24 January 2007, 5½ months out of time. It is for the party seeking the extension to persuade the Court that it is in the interests of justice that it should be granted. Such persuasion will usually depend on the provision of an acceptable or satisfactory explanation as to why the time limits were not complied with - see Jackamarra v Krakouer (1998) 195 CLR 516 at 540; (1998) 153 ALR 276 at 294. 29 Mr Giunta submitted that an extension of time should be granted on the grounds that this might be his only chance to have his claim heard on its merits. His explanation as to why it took him 5½ months to lodge his summons is that he had "difficulty obtaining legal advice of the type and kind that comprehends his difficulties." 30 Mr Lanser deposed to a conversation he had with Mr Giunta on 14 August 2006, four days after the hearing at the Local Court. Mr Lanser says that one morning in the week commencing 14 August 2006 he encountered Mr Giunta when he was walking south in Phillip Street near the Supreme Court. Mr Giunta greeted Mr Lanser very cheerfully and had a bundle of papers in his hand. Mr Giunta said words to the effect, "I am going to appeal against the decision." Mr Lanser said "But you consented to it." Mr Giunta began to recite his complaint about his missing money and invited Mr Lanser into a nearby coffee shop. They had a conversation during which Mr Giunta told Mr Lanser that he had received a settlement some years ago of a personal injuries claim. Mr Giunta said words to the effect, "I got $20,000. The solicitor, he get $14,000, I get $6,000." Mr Lanser says that Mr Giunta made no complaint that he had been misled or pressured into signing the short minutes on 10 August 2006 or that Mr Lanser had been a party to any pressure or influence supposedly exercised on him. They parted amiably. 31 There is a copy of the terms of settlement with the following handwritten words added. "I SEE MR J LANSER ON 14-8-06 Would like Appeal 10-390AM G Giunta to the Decision Record" (Ex 2D/1) 32 The handwriting is that of Mr Giunta. The words "would like to appeal the decision record" are not his. This confirms that a conversation took place between Mr Giunta and Mr Lanser on 14 August 2006 where Mr Giunta told of his intention to appeal the entry of judgment in accordance with the terms of settlement. 33 On 19 October 2006, Mr Giunta wrote a letter to Mr Quinn on Sicilian Cultural Centre letterhead and stated: "DEAR MR BRUCE QUINN THANK YOU FOR THE HELP FOR MY PROBLEM WITH BANK. AS YOU NOW I AM A PENSIONER AND I COULD GET LEGAL AID FOR THE PURPOSE OF COURT 20/10/06-AUD . I DO NOT REQUIRE YOU TO TAKE ANY FURTHER ACTION, AS I HAVE NOW CONSULTED LEGAL AID. ALL THE BEST J G GIUNTA" (Ex 2D/2) 34 The summons in this matter was not filed until 24 January 2007 so the reference to legal aid and court does not relate to these proceedings. 35 It is difficult to accept that Mr Giunta could not obtain legal representation to lodge his appeal from the Local Court decision of 10 August 2006. He knew on 14 August 2006 that he wanted to appeal. He is the author of the summons, the statement of claim and his affidavits that were ultimately filed. He had not provided any details of any efforts he made to secure legal representation between 10 August 2006 and 24 January 2007. It is my view that Mr Giunta's explanation for delay falls far short of adequate. In the exercise of my discretion, it is my view that an extension of time should be refused.

Leave to appeal 36 Section 74 of the Local Court Act 1982 provides: "Appeals requiring leave

(2) A party to proceedings under this Part who is dissatisfied with any of the following judgments or orders of a Court sitting in its General Division may appeal to the Supreme Court against the judgment or order, but only by leave of the Supreme Court: …

(b) a judgment or order made with the consent of the parties,

…" 37 Under s 74 of the Local Courts Act, the plaintiff requires leave to appeal. 38 Mr Giunta submitted that leave should be granted as he has had difficulty in obtaining legal advice of the kind and type, which comprehends his difficulties. He claims that the circumstances giving rise to his signing of the terms of settlement constitute an abuse of process. 39 The Bank submitted that Mr Giunta having signed and consented to the terms of settlement is estopped from now seeking leave to appeal and the appeal is not competent. The Bank further submitted that if Mr Giunta is not estopped from bringing this application then leave should not be granted because the 2005 Local Court proceedings were, and if reinstated would be, futile on the grounds that firstly, the matters alleged in the 2005 Local Court proceedings, which were previously alleged in the 1995 Local Court proceedings, are subject to issue estoppel, cause of action estoppel and merger in judgment; secondly, that the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 precludes Mr Giunta from now raising those matters alleged in the 2005 Local Court proceedings which were not, but should have been, pleaded in the 1995 Local Court proceedings; and thirdly, that the whole of the cause of action constituting the claim in the 2005 Local Court proceedings has been extinguished. According to the Bank, such cause of action as Mr Giunta may have had against the Bank first accrued to Mr Giunta more than six years prior to 15 December 2005 and are therefore barred by s 14(1) and s 63 of the Limitation Act 1969. 40 Mr Giunta's case in the Local Court has problems. The cheque was written in 1984 some 24 years ago. Judgment has been entered in favour of the Bank on the same cause of action in 1995. While it is not beyond doubt that the latter Local Court proceedings are subject to issue estoppel, it is difficult argument to mount. Mr Giunta's counsel made submissions that the 1984 cheque constituted a deed and was subject to a 12 year limitation period. This proposition is very weak. Mr Giunta's case in the Local Court has little merit. The advice given by his counsel at the Local Court was correct. If Mr Giunta was ordered to pay the costs, the Bank could have had redress to his assets, namely his house. 41 In my view even if Mr Giunta's version is accepted and he was told twice that he could lose his house this advice does not constitute an abuse of process. For the record, I prefer Mr Quinn's version of events that he told Mr Giunta that "the other party was seeking costs and as Mr Giunta owned a house this was a matter that he should take into account" on one occasion. It is most unlikely that an experienced counsel would have made those comments as alleged by Mr Giunta in front of the opposing counsel and solicitor. It is my view that leave to appeal should be refused. The orders made on 10 August 2006 in Local Court Proceedings numbered 13351/95 are affirmed. The summons filed 24 January 2007 is dismissed. The statement of claim filed 2 May 2007 is dismissed. 42 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(3) The orders made on 10 August 2006 in Local Court proceedings numbered 13351/95 are affirmed.

(4) The summons filed 24 January 2007 is dismissed.

(5) The statement of claim filed 2 May 2007 is dismissed.

(6) The plaintiff is to pay the defendants' costs as agreed or assessed. *********

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