By an amended notice of motion filed on 1 February 2023 the defendant, Australia and New Zealand Banking Group Limited (ANZ), seeks orders dismissing these proceedings. It also seeks orders that the proceedings be stayed, and that the plaintiff, Mrs Patricia Poulos, be restrained from commencing fresh proceedings arising out of the same or similar facts as these proceedings, or proceedings heard by Darke J on 2 August 2021, unless Mrs Poulos first pays the costs of the proceedings before Darke J, and an application for leave to appeal from a judgment delivered by Darke J on 13 December 2021. Lastly, ANZ seeks the following order:
(1B) An order that should the Plaintiff seek to file any further application in this Court against the Defendant in respect of the matters raised in the Amended Statement of Claim filed 1 November 2022, the Plaintiff must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.
These proceedings were commenced by Mrs Poulos by statement of claim filed on 5 October 2022. Mrs Poulos filed an amended statement of claim on 1 November 2022. By her amended statement of claim Mrs Poulos seeks orders setting aside the judgments of Darke J delivered on 2 August 2021 and 13 December 2021. She also seeks, "[c]ompensation for eleven (11) properties unlawfully procured by ANZ in a Ponzi-Style Scam" together with a number of ancillary orders, including an order that ANZ pay her damages. The claim is said to be brought on the basis that fresh evidence discovered between 2019 and 2022 establishes that a series of judgments given by this Court were procured by a fraud perpetrated by ANZ, and a number of others. It is not possible from the amended statement of claim to discern what the frauds were. Mrs Poulos seeks to rectify that problem in a draft further amended statement of claim which she seeks leave to file. That draft seeks no final orders. However it alleges that "fresh evidence" or "fresh discovery of evidence" reveals that ANZ intentionally concealed from her, and in some cases the Court, certain facts, or made misleading or deceptive statements to Mrs Poulos, the Stamp Duties Office and the Land Titles Office which affected the outcome of those judgments.
Some allegations in the further amended statement of claim omit the formulas "fresh evidence reveals" or "fresh discovery of evidence" and simply assert that ANZ engaged in the relevant conduct. No attempt is made in the proposed further amended statement of claim to identify the "fresh evidence".
Before seeking to address Mrs Poulos' claim, it is necessary to say something about the background to the proceedings. That background is set out in detail in a number of earlier judgments of this Court. It is not necessary to repeat it here. A brief summary is sufficient.
On 8 December 1988, Elders Lensworth Finance Limited (Elders) on its own behalf, and as an assignee of the rights of several other related companies obtained judgment from Needham J against Mrs Poulos and her husband, and a company known as Hacide Pty Ltd (Hacide) of which Mr and Mrs Poulos were directors: Elders Lensworth Finance Ltd v Glenwood Investments Pte Ltd, unreported, Needham J, 8 December 1988. Mr and Mrs Poulos had given a guarantee in respect of debts owed by Glenwood Investments Pte Limited to Elders and the assignees. Mr and Mrs Poulos had also executed mortgages over eight properties they owned, including a property in Miranda, and Hacide had executed mortgages over two properties it owned as security for their obligations under the guarantees. In the judgment, Needham J ordered that Mr and Mrs Poulos and Hacide give possession to Elders of the properties over which security was held.
On 28 November 1989, the Commonwealth Bank of Australia (the Commonwealth Bank) obtained judgment from Sully J for possession of a property in Cronulla owned by Hacide, which had been provided as security for a loan the Commonwealth Bank had advanced to Hacide. The property was Mr and Mrs Poulos' family home. Mr and Mrs Poulos and their children were joined as defendants in those proceedings. One issue raised by the defendants was that the mortgage had been obtained by fraud. That defence was rejected by Sully J in an unreported judgment: Commonwealth Bank of Australia v Hacide Pty Ltd unreported, Sully J, 28 November 1989. An appeal from Sully J's judgment was dismissed: Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134.
Nothing then happened for almost 30 years, when Mrs Poulos commenced proceedings against, relevantly, the Commonwealth Bank, seeking the following orders among others:
1. Impeachment of the judgment of Needham J on the grounds of fraud;
2. Impeachment of the judgment of Sully J on the grounds of fraud.
By a notice of motion filed on 15 March 2019, the Commonwealth Bank sought summary dismissal of the proceedings against it. Kunc J granted the relief sought by the bank: Poulos v Elliott [2019] NSWSC 423. The hearing before his Honour focused on the judgment of Sully J. As Kunc J pointed out, that judgment could only be set aside if it had been obtained by fraud. The principles for setting aside a judgment on that basis are set out in the judgment of Kirby P, with whom Hope and Samuels JJA agreed, in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539, where his Honour relevantly said:
It is useful to state a number of principles which are established by law and which govern proceedings of the kind which the appellant wishes to bring.
First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selborne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage: see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury's Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
…
Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic: cf Perry v Meddowcroft (1846) 10 Beav 122 at 136-139; 50 ER 529 at 534, 535. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment: Ronald v Harper (at 318); Shedden v Patrick (at 643).
Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
The principal question before Kunc J was whether the second of the requirements referred to by Kirby P had been satisfied. Mrs Poulos, during the course of the hearing, identified six documents which she claimed amounted to the discovery of something new and material. Kunc J concluded that three of the documents were available and known to Mrs Poulos at the time of the hearing before Sully J. His Honour concluded that the other three documents were not evidence that Sully J's judgment had been obtained by fraud.
On 4 October 2019, Payne and Brereton JJA dismissed an application by Mrs Poulos for leave to appeal: Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 (the Appeal Proceedings). On Mrs Poulos' case, relevant to the allegation of fraud, was the fact that ANZ had previously held a second mortgage over the Cronulla property and a mortgage over the Miranda property. Two of the documents relied on by Mrs Poulos were discharges of those mortgages dated 15 August 1984 and registered on 23 May 1985. The gap between the date of the discharge of mortgage and the date of registration was said to provide new evidence that the Commonwealth Bank had not advanced funds to pay out ANZ, and therefore must have somehow or another obtained its own mortgages over the two properties improperly. The Court of Appeal accepted that it was arguable that the discharges of mortgage were not before Sully J and were, in that sense, new evidence. However, the Court concluded, for a number of reasons, that that new evidence would not have made a difference to the outcome of the case. The Court of Appeal concluded that the third document relied on was irrelevant to the case against the Commonwealth Bank.
On 18 October 2019, Mrs Poulos filed a notice of motion in the Appeal Proceedings seeking an order "[s]etting aside the Judgment of their Honours Payne JA and Brereton JA". That notice of motion was dismissed with costs on 2 December 2019: Poulos v Commonwealth Bank of Australia Ltd (No 2) [2019] NSWCA 290.
On 13 December 2019, Mrs Poulos filed a further notice of motion in the Court of Appeal proceedings seeking essentially the same orders as those sought by her earlier notice of motion, relying on what was said to be further new evidence. The Court of Appeal dismissed that application with costs: Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72. At the same time, the Court made the following order:
(3) Should the applicant seek to file any further application in this Court against the respondent in respect of the matters litigated in the proceedings dismissed by Kunc J or in the Court of Appeal, the applicant must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.
On 17 April 2021, Mrs Poulos commenced proceedings against ANZ: Poulos v Australia and New Zealand Banking Group Ltd [2021] NSWSC 971. The claim, as finally put in those proceedings, was summarised by Darke J in these terms:
[9] The Amended Statement of Claim is a lengthy document, running to almost twenty-five pages. I have spent a considerable amount of time reading the document and trying to understand it. The principal relief sought consists of orders to "reinstate the plaintiff in residence" at the Cronulla property, and "reinstate the plaintiff in" the Miranda property. These prayers for relief include the assertions that ANZ fraudulently procured and disposed of the properties on 15 August 1984 to the Commonwealth Bank of Australia and "Elliott" respectively. The reference to Elliott may be intended to refer to a company in what Needham J referred to in his judgment as the Elders Group. The assertion is also made in these prayers that ANZ intentionally concealed from the plaintiff its dealings with the properties.
…
[13] In relation to the 34 paragraphs which may be intended to serve as the pleadings I note the following (which is not intended to be a complete summary of those paragraphs):
(a) there are numerous allegations that the defendant colluded with Elliott and Commonwealth Bank of Australia to defraud the plaintiff of money, assets and income (see, for example, paragraphs 2, 4, 19 and 22);
(b) it is alleged that ANZ fraudulently procured and disposed of the two properties (see, for example, paragraph 7);
(c) it is alleged that ANZ intentionally concealed certain dealings it had with the properties (see, for example, paragraph 9);
(d) it is alleged that in 1983 ANZ fraudulently obtained control of the Cronulla property (see paragraphs 13 and 18);
(e) there are various allegations that ANZ made false and misleading statements (see, for example, paragraphs 14 to 16);
(f) it is alleged that ANZ disposed of the two properties on 15 August 1984, not at a settlement on 3 May 1985, which is said to be a fictitious settlement date (see paragraphs 22 and 23); and
(g) there are numerous statements to the effect that "the fresh discovery of evidence" reveals certain matters. These are likely references to the five documents that are listed at paragraph 22(1) of the Summary. These documents include two discharge of mortgage forms, dated 3 May 1985, in respect of mortgages held by ANZ over the two properties.
By a notice of motion filed on 11 June 2021, ANZ sought to strike out the amended statement of claim. In granting that order, Darke J said:
[18] In my view it is plain that the Amended Statement of Claim has a tendency to cause prejudice, embarrassment and delay. It is not possible for the defendant to discern with any clarity the factual matters that are alleged to constitute the cause or causes of action brought against it. As submitted by the defendant, quite how it is said to have procured the disposal of the properties in a fraudulent way, or colluded with the Commonwealth Bank of Australia, or what the fraudulent conduct even is, is not explained in the Amended Statement of Claim.
His Honour directed that Mrs Poulos serve and provide to his Honour's associate any proposed further amended statement of claim and stood the matter over until 8 October 2021. On 12 November 2021, the matter was listed for hearing on 2 December 2021 in relation to the question whether Mrs Poulos should be given leave to file her proposed amended statement of claim. That leave was opposed by ANZ. On 13 December 2021 Darke J refused the plaintiff leave to file her new further amended statement of claim and dismissed the proceedings with costs: Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC 1620.
On 15 August 2022 the Court of Appeal refused an application for an extension of time in which to bring an application for leave to appeal from Darke J's decision: Poulos v Australia and New Zealand Banking Group [2022] NSWCA 218.
In my opinion, the current proceedings are misconceived. The only judgment that ANZ has obtained against Mrs Poulos is the dismissal of the proceedings she commenced on 17 April 2021. The case that Mrs Poulos apparently now seeks to advance is that that judgment was obtained by the fraud of ANZ, but nowhere does Mrs Poulos explain how that could be so. It is relevant in this context to observe that the judgment obtained by ANZ from Darke J arose from the fact that Mrs Poulos was unable to articulate a case against the Bank. It depended on the Court's assessment of Mrs Poulos' original and amended pleading in that case. It did not depend on any evidence from ANZ. It is difficult to see in those circumstances what new evidence, let alone evidence of fraud by ANZ, could lead to the conclusion that the judgments of Darke J were obtained by fraud.
Although the amended statement of claim and proposed further amended statement of claim filed by Mrs Poulos in these proceedings are difficult to follow, it is apparent that Mrs Poulos is attempting to relitigate issues determined adversely to her by the Court of Appeal in proceedings brought by her against the Commonwealth Bank. She apparently also seeks to advance a case that ANZ engaged in a fraud over 30 years ago, when it granted a discharge of the mortgages it held on repayment of the facilities it advanced. That is the case that was struck out by Darke J. It is plain that in those respects, the current proceedings are an abuse of process.
For those reasons, the current proceedings must be dismissed.
The question remains whether the Court should make an order, in effect, preventing Mrs Poulos from commencing further proceedings against ANZ without leave. In opposition to an order of that type it might be said that Mrs Poulos has only commenced two proceedings against ANZ (the proceeding heard by Darke J and this proceeding) and that is not sufficient to justify an order of the type sought by ANZ.
However, the claims against ANZ must be seen in the context of the earlier proceedings. Taken together, they demonstrate a persistent determination by Mrs Poulos to pursue proceedings in an attempt, in effect, to reverse the decisions of Needham J and Sully J. The Court can have no confidence that Mrs Poulos will accept the outcome of this case any more than she has accepted the outcome of the earlier ones in which she has made similar allegations.
For those reasons, in my opinion, it is appropriate to grant an order in terms of para 1B of ANZ's amended notice of motion.
Therefore, the orders of the Court are:
1. The proceedings be dismissed;
2. Should the Plaintiff seek to file any further application in this Court against the Defendant in respect of the matters raised in the Amended Statement of Claim filed 1 November 2022, the Plaintiff must at the same time file a document of no more than five pages showing cause why this Court should not in chambers summarily dismiss the application as vexatious and an abuse of process; and
3. The Plaintiff pay the cost of the Defendant's Amended Notice of Motion dated 11 April 2023.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 April 2023