Jones v Bank of Queensland Limited

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 Mr Stephen Jones and his wife, Mrs Nadine Jones (Mr and Mrs Jones), the applicants in these proceedings, are at odds with the Bank of Queensland Limited (the bank), the respondent in relation to borrowings which they progressively made from the bank, starting in August 2007. More particularly, the grievance between Mr and Mrs Jones and the bank arises from an alleged way in which the bank dealt with hardship applications which they had made to the bank in respect of various loans upon their encountering financial difficulties. 2 The statement of claim which they have filed and served on the bank is by no means a model of perfection in terms of its compliance with this Court's pleading rules. What I have just given, though, in terms of a general summary of the grievance, is tolerably clear from a fair reading of the statement of claim. The bank is alleged by Mr and Mrs Jones, for the reasons set out in the statement of claim, to have breached the National Credit Code (Sch 1 to the National Consumer Credit Protection Act 2009 (Cth)), to have engaged in misleading or deceptive conduct contrary to the Competition and Consumer Act 2010 (Cth) and further to have breached, negligently, a duty of care said to be owed by the bank to them. 3 The bank and Mr and Mrs Jones are also parties to existing litigation in the Supreme Court of Queensland (proceeding 8808/2014), between the bank as plaintiff and Mr and Mrs Jones as first and second defendants respectively. Those proceedings on the part of the bank were for recovery of possession of land located at 73 Airlie Road, Pullenvale. For their part in those Supreme Court proceedings, Mr and Mrs Jones filed a defence and counter-claim, in its most recent form, that of 31 March 2014. It is evident from the defence and counter-claim, when compared with the statement of claim in the proceeding in this Court, that there is, to say the least, a considerable overlap between the defence and counter-claim and the statement of claim, in terms of issues and causes of action. 4 On 9 June 2015, in the Supreme Court, Douglas J, by consent, made orders that the bank be given judgment against Mr and Mrs Jones for recovery of possession of the land at 73 Airlie Road, Pullenvale on the provision that the bank would not file a warrant for possession any earlier than 24 July 2015. Judgment also went by consent for the bank against Mr and Mrs Jones on that date for the sum of $1,289,434.44, being an amount outstanding pursuant to loan agreements as at 29 April 2015. Judgment also went for interest in respect of three loans, which look to be one and the same as the three loans referred to in the statement of claim in this Court. A further order was made by the Supreme Court on that date that Mr and Mrs Jones' counter-claim be dismissed. 5 I was informed this morning that, on 29 July 2015, Mr and Mrs Jones filed an application in the Queensland Supreme Court to set aside the judgment of 9 June 2015. That application is returnable before the Supreme Court on 27 August 2015. 6 The bank is yet to file a defence in these proceedings. By way of submissions this morning, though, the bank tendered, and I have directed that it be placed on the Court file, what it termed a "side by side comparison" between the existing defence and counter-claim in the Supreme Court of Queensland and the statement of claim in this Court. That comparison serves to underscore what a reading of the two pleadings would, in any event, suggest, which is a close correlation between the claims which Mr and Mrs Jones seek to advance in this Court and those which they sought to advance in the Queensland Supreme Court. 7 The bank initially was disposed to seek a deferral of its filing of a defence in this Court, pending the determination of the application to set aside the consent judgment in the Supreme Court. At the same time, the bank foreshadowed, as is evident from the draft order tendered, the making of an application under the jurisdiction of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The bank has also, evidently, in terms of information given to me in the course of a very helpful exchange between Mr Jones on the part of him and his wife and Mr Vella on the part of the bank, put to Mr and Mrs Jones that their statement of claim seeks to raise issues in respect of which the bank, at least, in terms of the judgment of 9 June 2015 would be able to raise estoppel or res judicata issues. 8 Upon inquiry by me of both Mr Jones and Mr Vella as to whether there was any cause of action pleaded in the statement of claim in respect of which this Court had jurisdiction, but the Supreme Court of Queensland did not, neither could identify any such cause of action. Mr Jones, of course, is acting for himself and for his wife and does not have the benefit of legal training. Nonetheless, my own assessment of the position accords with that put on behalf of the bank, which is there is no jurisdictional advantage in the proceeding in this Court, compared with the existing proceeding in the Queensland Supreme Court. 9 So far as I can see, any issues concerning estoppel or res judicata which would arise in this Court would also arise in the event of transfer of the proceeding to the Supreme Court of Queensland. There is no advantage in that sense which Mr and Mrs Jones would enjoy by the proceeding staying in this Court. I am just as bound as would be a Supreme Court judge to apply the law with respect to res judicata and estoppel. 10 It is always a difficult task to set aside a judgment which has been entered by consent. Those difficulties in terms of going behind a judgment so entered would be just as present in this Court in relation to any question of estoppel by judgment or res judicata as they would be in the Queensland Supreme Court. 11 One option, and that was one initially canvassed on behalf of the bank, was just to pause proceedings in this Court pending the outcome of proceedings on 27 August in the Queensland Supreme Court. That though, would be to defer the determining of procedural issues, principally cross-vesting, which are already evident, as the position is revealed by the amended defence and counterclaim in the Supreme Court and the statement of claim in this Court. 12 It would visit, both upon Mr and Mrs Jones and the bank, inconvenience and expense to have parallel proceedings where there was no particular jurisdictional advantage to their retention in this Court. The Supreme Court proceedings are the more progressed. 13 It seems to me that the interests of justice in this case are best served by the aligning of the proceeding instituted in this Court with the existing proceeding in the Queensland Supreme Court, with their then being dealt with as one. The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) permits just such an outcome. 14 It may be that there is an own motion element to the order for transfer, but I have put to each of the parties whether there is any particular disadvantage in the making of a transfer order now. No disadvantage could be identified. I can identify no disadvantage. To the contrary, it seems to me that there is only advantage, in terms of an efficient use of judicial resources in the exercise of federal jurisdiction. And that includes, materially, the Supreme Court, which has such jurisdiction in this case. By not having parallel proceedings the advantage is in their being managed as one, at the same in the same Court. The further disposition of the case instituted in this Court can best be dealt with by a judge as soon as the application for the setting aside of the consent judgment has been determined. The latter will occur only in the Supreme Court. That is another reason why it is best that a Supreme Court judge deal, after cross-vesting transfer, with the proceeding instituted originally in this Court by Mr and Mrs Jones. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.