CONSIDERATION
15 For the reasons which follow, I would not grant leave to issue the proceeding.
16 It is clear that many of the statements and assertions made by the applicants replicate the complaints discussed at length by Buchanan J in Ninan No 2. There is no doubt that leave is necessary. As Jacobson J noted in Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180 (at [40]-[41]) it is not necessary that these proposed proceedings be identical to an earlier proceeding for it to be re-litigation. As is recognised in the principles discussed in the authorities referred to by French J, as his Honour then was, in Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 (at [64]-[70]), the question is not to be determined by the precise form of the words stated in a pleading but by considering whether, in all the circumstances, the party is misusing the processes of the Court by seeking to raise issues which were, or could have been, determined in the earlier proceeding. That, of course, was the approach taken by Griffiths J in Ninan No 1 and Buchanan J in Ninan No 2.
17 As noted by Buchanan J in Ninan No 2 (at [20]):
It is well established that it is an abuse of process to simply seek to relitigate a case which has already been disposed of by earlier proceedings (Reichel v Magrath (1889) 14 App Cas 665 at 668; Walton v Gardiner (1993) 177 CLR 378 at 393; Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676). Apart from the claims against the City of Mandurah, it appears to me to be incontestable as a matter of substance that the applicants are seeking, in large part, to repeat allegations which have been dealt with to finality in the 2012 proceedings in this Court. To the extent that the proceedings now commenced proceed in that way, they seem clearly to be an abuse of process. The applicants have argued that there is no real overlap between the two sets of proceedings, but that is a conclusion which cannot be accepted. Even though the allegations are, in some respects, expressed in different language, the factual assertions are essentially the same. Like the 2012 proceedings, it is a difficult task to get behind the obscure language and structure used by the applicants in their pleadings, but when that is attempted it is clear that the present cases represent an attempt to revive the 2012 litigation.
18 I would respectfully adopt the summary by Buchanan J (at [20]) in Ninan No 2. On or about 4 September 2013, the applicants filed an application for an extension of time for leave to appeal from the orders made by Buchanan J in Ninan No 2. On 13 November 2013, Jacobson J dismissed those applications.
19 No attempt has been made by the applicants to illustrate the manner, precise or even general, as to why these proceedings are different in form from the proceedings dealt with in Ninan No 2. Indeed, the arguments for the applicants appear to accept that there is no difference or substance.
20 Further, as in Ninan No 1 and Ninan No 2, there are patent deficiencies in the pleadings. I have previously noted that there is no pleading of facts, matters and circumstance supporting conclusions and assertions such as: 'serious fraud', 'deceptive and discriminatory orders are made by the judges', 'the loan was deceptive', 'St.G produced a false document to us', 'Wpc offered us refinancing loans at unconscionable prices by over valuing land held by us', 'deceptive acts of loans at false values to facilitate land purchases at false values are causes of action to claim all damages'. See the observations of Griffiths J in Ninan No 1 (at [46]).
21 Also unanswered is the submission for the prospective respondents that it would be futile to grant leave to the applicants to commence the proceeding because, if leave were granted, the prospective respondent (there is in truth only one, Westpac) would make an application for security for costs. It would also bring a strike out or summary dismissal application. Unless matters change significantly, it is to be expected that security would be ordered, alternatively, the proceedings would be struck out or dismissed. Security for costs has already been ordered on two previous occasions in Ninan No 1 and Ninan No 2. The same matters have been pleaded or foreshadowed in this proceeding as in those proceedings. As Westpac submits, having regard to the earlier proceedings (including the refused application for leave to appeal (Ninan (No 2) [2013] FCA 1180 per Jacobson J), and having regard to the deficiencies discussed, the applicants' foreign residency, the fact that the applicants are impecunious and the broad discretion to grant security for costs conferred by s 56 of the Federal Court of Australia Act 1976 (Cth), security for costs would be likely to be awarded. No submission has been advanced or evidence provided to suggest that such an application would be successfully opposed by the applicants.