Poulos v Australia and New Zealand Banking Group Ltd

Court of Appeal (NSW)|2023-10-27|Before: Ward ACJ, Adamson JA, Sully J, Needham J, Ball J

Background to the present application

The background to the present application is set out in the primary judgment (see from [5]-[16]) but may be conveniently summarised as follows. It is important to note, in light of some of the complaints made by Mrs Poulos as to the primary judgment, that this is no more than a summary of the earlier proceedings that have led to the present application. That said, the history of the litigation involving Mrs Poulos is of relevance to the making by the primary judge of the Teoh direction referred to above.
Back in 1989, the Commonwealth Bank of Australia (Commonwealth Bank) obtained judgment for possession of Mr and Mrs Poulos' then family home in Cronulla, which had been provided as security for a loan advanced to Hacide Pty Ltd (Hacide) (the registered owner of the Cronulla property) (Commonwealth Bank of Australia v Hacide Pty Ltd, Supreme Court (NSW), Sully J, 28 November 1989, unrep). Mr and Mrs Poulos were the directors of that company. Sully J rejected a defence raised by the defendants in that proceeding to the effect that the mortgage had been obtained by fraud. This Court (Priestley, Samuels and Clark JJA) subsequently dismissed an appeal from Sully J's decision (Hacide Pty Ltd v Commonwealth Bank of Australia [1991] NSWCA 134).

Primary judgment

It is against the above background that the primary judge came to consider ANZ's application (by amended notice of motion filed on 1 February 2023) for the stay or summary dismissal of the proceedings.
The primary judge considered the proceedings before him to be misconceived. At [17], his Honour pointed out that the only judgment that ANZ had obtained against Mrs Poulos was the dismissal of the proceedings commenced on 17 April 2021 and that the judgment of Darke J turned on his Honour's assessment of the original and amended pleading in that case. His Honour considered that in those circumstances it was difficult to see 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 (see at [17] of the primary judgment).
The primary judge said (at [18]) that the amended statement of claim and proposed further amended statement of claim filed by Mrs Poulos in the proceedings were difficult to follow but that it was apparent that Mrs Poulos was attempting to relitigate issues determined adversely to her by this Court in the Commonwealth Bank proceedings (referred to above) and 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 (the case that was struck out by Darke J) ([18]).
It should be noted that the reference by the primary judge to the "proposed further amended statement of claim" filed in the proceedings is an obvious error. No further amended statement of claim had been filed in the proceedings before Ball J; nor had any further amended statement of claim actually been filed in the proceedings before Darke J (since his Honour refused leave for the filing of the document that had been served on 1 October 2021). However, in our opinion nothing turns on this error since the amended statement of claim that had been filed on 1 November 2022 (and to which his Honour had also referred) suffices to support the conclusion drawn by his Honour as to the case Mrs Poulos was seeking to advance in the proceedings before him.
As noted above, his Honour considered that the proceedings before him were an abuse of process (at [18]) and accordingly dismissed the proceedings (making the additional direction as to any further application in respect of those matters to which we have referred above).

Extension of time

As noted above, the summons seeking leave to appeal was filed on 21 July 2023. The primary judgment was delivered ex tempore on 11 April 2023 and the proceedings were dismissed on that date. Mrs Poulos filed a notice of intention to appeal on 18 April 2023. Thus, the time by which any summons seeking leave to appeal was to be filed was extended to 11 July 2023.
Mrs Poulos does not accept that an extension of time is required, asserting in her written submissions that no extension has been sought "nor was it deemed necessary". In that regard, Mrs Poulos seems to argue that ANZ was on notice of correspondence (not before this Court) to the costs assessor (presumably this correspondence indicated her intention to appeal but this is not clear). Mrs Poulos further asserts that if any delay is "deemed" then it was delay in the Registry forwarding the link to enable prepayment of the filing fee. Mrs Poulos also appears to be critical of the respondent for not raising this issue and providing her the opportunity to seek an extension of time (although she has not taken the opportunity to do so at least in her written submissions in any event).
ANZ opposes an extension of time to file the summons for the following reasons: first, that the delay is not inconsiderable (citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55], [59] per Basten JA, with whom Ipp JA agreed), ANZ saying that it is not "a matter of days"; second, that Mrs Poulos has provided no explanation for the delay (and ANZ argues that it may be inferred that she is familiar with the time restrictions on seeking leave to appeal in this Court since this same issue arose last year in her 2022 application); and, third, that she has not demonstrated any prospects of success.

Determination as to extension of time issue

While the delay in our opinion is relatively inconsequential - some ten days - and no particular prejudice was pointed to as arising from that delay, there is force to ANZ's submission that Mrs Poulos must have been aware of the applicable time restrictions (given the refusal of her application for an extension of time last year on a similar application against the same respondent) and Mrs Poulos' apparent attempt to deflect blame onto the Registry is not a satisfactory explanation for the delay.
Had there been any arguable prospects of success on the proposed application for leave to appeal (or more than arguable prospects on the proposed appeal itself) we would have granted an extension of time for the filing of the summons seeking leave to appeal. As it is, we consider that such an extension would be futile and the extension should be refused. We explain below why it is that we are of the view that there are no arguable prospects of success on the proposed appeal (which informs our conclusion both as to the extension of time issue and, had it arisen, the leave to appeal issue).

Application for leave to appeal

The draft notice of appeal, after sixteen paragraphs identifying asserted errors on the part of the primary judge (largely subsumed in the grounds that follow), sets out nine proposed grounds of appeal, which may be summarised, with some brief commentary, as follows. At the outset, however, it must be emphasised that the subject matter of the application for leave to appeal is the summary dismissal by Ball J of the 2022 proceedings instituted by Mrs Poulos against ANZ. Those are separate proceedings to those which were dismissed by Darke J. Hence the relief now sought by Mrs Poulos to set aside the judgments of Darke J in the previous proceedings against ANZ, as a practical matter, could go at most to the adverse costs orders made in those proceedings; there being little point to reinstating proceedings that have now been superseded by the proceedings that were before Ball J.
Ground 1 (Discovery) raises no ground of appeal as such; rather it asserts that ANZ, in collusion with others, intentionally concealed "fresh" evidence from Mrs Poulos for almost 40 years and from the numerous judicial officers who have heard the proceedings in which Mrs Poulos has been involved over the years.
Ground 2 (Fresh evidence) complains that the primary judge erred in failing to consider and/or not properly considering the "fresh evidence" referred to at [18]-[27], [29]-[33] of the "Details of Appeal" section in the draft notice of appeal (there being no content to [28]). This "fresh evidence" goes to the circumstances in which the ANZ mortgage was discharged and Commonwealth Bank became incoming mortgagee.
ANZ submits that none of the "fresh evidence" to which Mrs Poulos refers is relevant to or capable of changing the fatal misconception identified by the primary judge (at [17]) as to the case that Mrs Poulos sought to advance (that being that the judgment of Darke J summarily dismissing the proceedings was obtained by the fraud of ANZ). Pausing here, it must also be noted that the amended statement of claim also sought other relief based on the claim that there was a scam involving ANZ and others as to the circumstances in which ANZ's mortgage was discharged and Commonwealth Bank became the incoming mortgagee. Mrs Poulos' contention is that the fresh evidence goes to that issue.
Ground 3 (Reliance) asserts error on the part of the primary judge in relying on "the evidence in the Court Book and Chronologies of the Respondent and [the various judgments]" and asserts that had the "fresh" discovery of evidence been before the respective judicial officers this would have resulted in different outcomes. Mrs Poulos also asserts that the presentation of this material as being accurate and its reception by her at Court took her by surprise (though it is not clear from her submissions in what respect that material is said to have been inaccurate or to have caused Mrs Poulos any surprise).
ANZ submits that the features of the previous judgments that his Honour extracted by way of background (at [4]-[16]) are not controversial but that, in any event, this background material does not relate to the basis upon which his Honour dismissed the proceedings (at [17]-[18]); nor does any reliance placed by the primary judge on the "Court Book and Chronologies".
Ground 4 (Fraud) makes allegations of fraud in three respects: first, as to false evidence said to have come before Hodgson J as to the making or documentation of an "Elders Pacific" loan to Glenwood Investments Pte Ltd at a settlement on 3 May 1985 in Hong Kong; second, as to false evidence said to have come before Needham J as to the making of an Elders Finance & Investment Co Ltd loan made to Glenwood Investments Pte Ltd at a settlement on 3 May 1985 in Sydney; and, third, as to false evidence before Sully J of a loan having been made by Commonwealth Bank to Hacide at a settlement on 3 May 1985 in Sydney. Ground 4 contains the allegation that none of those loans was made; and that Commonwealth Bank did not advance any loan funds for the discharge of the ANZ mortgage and incoming mortgage of Commonwealth Bank. Various allegations of concealment of matters are made.
ANZ submits that none of this goes to how the decision of Darke J is alleged to have been procured by fraud and reiterates that Darke J's decision related to Mrs Poulos' inability properly to articulate a claim and arose from her pleading alone, rather than any evidence from ANZ.
Ground 5 (Due Diligence) asserts that: For 40 years the Appellant has attempted to unravel the frauds which now evident [sic] in these proceedings to expose the truth to the falsities fabricated by Elders and [Commonwealth Bank] with ANZ deeply concealed
This amounts to no more than assertion. No error on the part of the primary judge is here identified. Presumably, the complaint is as to the failure of the primary judge to make any finding of fraud, as asserted in the "Details of Appeal" section of the notice of appeal, or in failing to "apply" the "fresh evidence" or finding that the criteria in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 had not been met (see [14]-[16] of the "Details of Appeal" in the draft notice of appeal). If so, that misconceives the nature of the application before the primary judge (which, as indicated above, was as to whether the pleading properly identified a reasonable cause of action against ANZ); not to make findings as to the substantive allegations that Mrs Poulos was making against ANZ in the proceedings themselves if the claim were permitted to proceed. A review of the transcript of the hearing before Ball J makes clear that his Honour was at pains to explain this to Mrs Poulos.
Ground 6 (Res Judicata) asserts that the pleadings apply to "fresh" facts and evidence going to the fraud said to have been concealed from the judicial officers who dealt with Commonwealth Bank proceedings some 35 years ago; and includes a quote from a decision in the Supreme Court of the United Kingdom (Takhar v Gracefield Developments Ltd [2019] UKSC 13 per Lord Sumption at [61]) as to res judicata not arising in cases where a claimant establishes the right to have an earlier judgment set aside for fraud.
The relevance of this to the present application is not immediately apparent. What the primary judge was here addressing was the adequacy of the pleading to raise an arguable cause of action; not whether fraud was made out nor the principles considered in the case cited by Mrs Poulos.
Ground 7 (Leave to Amend) states that Mrs Poulos seeks leave to file a further amended statement of claim which "more clearly defines the unlawful conduct" of ANZ, Commonwealth Bank and Elders IXL and further to reveal the evidence said to have been concealed from the various judicial officers who have considered the matter. If this is characterised as a complaint that the primary judge did not permit a further opportunity for Mrs Poulos to formulate her claim, then it requires the establishment of error of the House v The King kind (i.e., error of principle, misapprehension of the law or the facts, or a decision of manifest unreasonableness so as to bespeak such error). No particular error was identified in Mrs Poulos' written submissions (other than the error in his Honour's reference to a further amended pleading when none had been filed in the proceedings before Darke J and none had yet been proposed in the proceedings before the primary judge). In oral submissions, the complaint appeared to be that the primary judge failed to deal with Mrs Poulos' application (contained at [5]) of her written submissions dated 6 April 2023 for leave to amend her pleading "fully [to] reflect the fresh discovery of evidence intentionally concealed by the Defendant discovered and presented in the Affidavits and submissions".
Ground 8 (No defence) complains that there was error in the summary dismissal of the proceedings, where ANZ had not filed a defence (either in the proceeding before the primary judge or in the proceeding before Darke J) and Mrs Poulos further complains that the primary judge erred in refusing to hear oral submissions in respect to the fresh evidence issue and failed to consider Mrs Poulos' affidavits and written submissions; and that his Honour erred in "failing to find the collusive relationship between the ANZ Bank, Elders, [Commonwealth Bank] and their collective lawyers in the Ponzi-style Scam which relieved [her] of assets and income".
As to the complaint that no defence has been filed, ANZ points out that it had no obligation to have filed a defence before the primary judge and argues that, even if it had, the fact that it had not done so does not impeach his Honour's reasons as to why Mrs Poulos' claim was dismissed. That is clearly correct; as already noted, the application being considered by his Honour was as to the adequacy of Mrs Poulos' pleading.
As to the complaint made of refusal to hear oral submissions, ANZ says that the transcript reflects that Mrs Poulos was never denied an opportunity to make an oral submission during the course of the hearing; his Honour raised the central concerns he had (which formed his reasoning at [17]-[18]) to Mrs Poulos repeatedly during the course of the hearing; and, before delivering judgment, his Honour expressly invited Mrs Poulos to make any other submissions she wished to make (an opportunity that Mrs Poulos declined).
It appears from the introductory "Details of Appeal" provided in the draft notice of appeal that the complaint as to refusal to hear oral submissions relates to: a refusal by his Honour to hear argument on the "fresh" evidence (an affidavit sworn by ANZ's solicitor, Justin Gibb Bates, on 4 November 2022 and the affidavits sworn by Mrs Poulos). Mrs Poulos contends that this thereby removed the opportunity for Mrs Poulos to tender "fresh" evidence as to ANZ being at material times the holder of eleven certificates of title (see at [3]).
As to the complaint of a failure to make findings as to the alleged "collusive relationship", again this misapprehends the function that the primary judge was here performing. On an interlocutory application of this kind, no factual findings as to the substantive issues would be made.
Finally, ground 9 (Bias) is a complaint of apprehended bias being an allegation that the primary judge failed to permit Mrs Poulos to present her case to the Court in a meaningful manner. The ground appears to contend that apprehended bias is evidenced in the judgment itself.
ANZ submits that this ground should not be countenanced when no allegation was raised during the course of the hearing before the primary judge and no particulars, or basis, for such an allegation are here proffered by Mrs Poulos.

Submissions by Mrs Poulos

Mrs Poulos has filed a summary of argument, which broadly correlates to the matters set out in the draft notice of appeal, as well as written submissions in reply to ANZ's submissions.
In summary, other than the matters already referred to, we note that Mrs Poulos has emphasised that despite "extensive litigation" against her for more than five years, it has taken 40 years to uncover the evidence suppressed from the judicial officers who have considered the proceedings to date and, as noted above, she complains that the primary judge failed properly to consider the amended statement of claim (filed on 1 November 2022, which Mrs Poulos asserts has been described as a "perfectly good proceeding"). Complaint is made that the primary judge did not cite the UCPR in his determination.
Mrs Poulos maintains that the "fresh discovery of evidence" reveals that ANZ, Commonwealth Bank and John Dorman Elliott (Elders) colluded to bring three sets of proceedings on false evidence against her, claiming loans by three different lenders in two different countries "being the same loan on the same day (3 May 1985) at three (3) different settlements with no loan or settlement having taken place", at all material times concealing that ANZ was in possession of the relevant certificates of title. Mrs Poulos relies in this regard on evidence identifying ANZ as being the holder of LTO BOX# B130 into which she says on registration all dealings with those properties were deposited (referring to her affidavit sworn on 5 April 2023). Mrs Poulos emphasises that the evidence as to the holder of the LTO Box identified was not evidence before Darke J (see T 3.45).
Mrs Poulos maintains that, had Darke J been given the evidence as to ANZ being the holder of the LTO BOX into which all dealings with the eleven certificates of titles from 1983 had been deposited and that this was concealed from the judges who considered the matter over 30 years ago, then Darke J would not have referred to those judgments (and, had it been revealed to those other judicial officers, it would have produced opposite outcomes).
Complaint is made that ANZ has falsely asserted that none of the evidence to which Mrs Poulos refers was unavailable at the time of the proceedings before Darke J or the primary judge. Mrs Poulos lists in her submission the evidence that she asserts was not available to Darke J: 1. the "fresh" evidence in [9] and [10] of Mr Bates' 4 November 2022 affidavit; 2. that an ANZ settlement with Elders and Commonwealth Bank had taken place prior to 3 May 1985 was allegedly concealed from Hodgson J, Needham J and Sully J; 3. the alleged concealment as to the absence of ANZ from a 3 May 1985 Elders settlement in Hong Kong (before Hodgson J) and an Elders Sydney settlement (before Needham J) and a Commonwealth Bank settlement (before Sully J), such that no settlements could have taken or did take place; 4. that the judgments of this Court (Priestley, Samuels and Clarke JJA) in the earlier appeal proceedings were determined on the basis of a 3 May 1985 settlement which never took place; 5. that, as at 15 August 1984 (prior to either Elders or Commonwealth Bank approaching Mrs Poulos to offer her a loan), ANZ discharged its mortgages; and 6. that all dealings with the eleven certificates of title were deposited into LTO BOX# B130 "and into which the ANZ Mortgage to Hacide Pty Ltd on which ANZ made no advance, and the ANZ Mortgage to J and P Poulos in 1983 were deposited, and without contrary evidence, is that of ANZ".
Mrs Poulos argues that ANZ is not entitled to rely on the UCPR to obtain relief "as it has not confined its conduct to within those Rules or s 101(2)(e) of the Supreme Court Act 1970 (NSW)". Further, Mrs Poulos invokes Article 17 of the United Nations International Covenant on Civil and Political Rights (ICCPR), which states that: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.
Mrs Poulos submits that: The daunting prospect of a litigant in person conducting a hearing the magnitude of that set out in the draft Notice of Appeal is, it is submitted, insufficient reason for quick disposal of this matter which would compound the injustices perpetrated by the Respondent in its unlawful procurement of eleven (11) Certificates of Title used as collateral, whilst obtaining monies paid by the [applicant] to which it was not entitled.
Mrs Poulos argues that ANZ's concern for Court time and costs could be appeased by ANZ "desisting rather than continuing to incur costs in attacking the draft Notice of Appeal to which it has no defence", reiterating her allegations as to concealment of evidence and false or fabricated evidence.
As to costs, Mrs Poulos maintains that ANZ is not entitled to costs incurred in deceiving the Court (which assumes that her substantive allegations are made good).
Mrs Poulos cavils with the proposition that her proceedings against ANZ amount to a re-litigation of the Commonwealth Bank proceedings (to which she notes ANZ was not a party and in which she says no ANZ evidence was relied upon). Further, Mrs Poulos asserts that the transcript of the hearing before Ball J is not an accurate recording of the hearing. The only aspect in which it is said to be inaccurate is the omission of reference to Mrs Poulos' 25 February affidavit.
Mrs Poulos maintains that there is no evidence of an ANZ settlement on 3 May 1985 or at all, nor the manner in which Elders and Commonwealth Bank obtained the discharges of mortgages and certificates of title (to which she says they were not entitled), which were registered on 23 May 1985 nor to them having become incoming mortgagee. In the alternative, Mrs Poulos says that there was no ANZ/Elders or ANZ/Commonwealth Bank settlement, with ANZ retaining all eleven certificates of title "using Elders and [Commonwealth Bank] to promise loans never made, nor intended, so as to obtain executed Mortgages to legitimize ANZ`s unlawful procurement of those eleven (11) Certificates of Title obtained through Laurence and Laurence". Mrs Poulos complains that "trickery" is used in ANZ bringing three notices of motion "to prevent the fresh evidence being aired, tried and tested".
Mrs Poulos says that the primary judge erred in the conclusion that nothing further was done for 30 years, pointing to material included in the White Books as to the investigations undertaken by her "in an attempt to understand the Elders and CBA dealings with her assets with ANZ deeply concealed by both Elders and CBA from the Appellant and the Courts".

Application for leave to appeal

The submissions made by Mrs Poulos on the present application make clear that her focus is on the perceived merits of her substantive claims against ANZ rather than how it is said that the primary judge erred in concluding that the pleadings in the proceedings before him did not properly articulate a reasonable cause of action against ANZ and thus the proceedings were an abuse of process. That misapprehension is apparent from even a cursory review of the transcript of the proceedings before his Honour, in which the primary judge sought to make clear to Mrs Poulos that the focus was on the adequacy of the pleadings, not the fresh evidence on which Mrs Poulos wished to rely.
We can discern no error in the assessment by the primary judge as to the deficiencies in the amended statement of claim filed on 1 November 2022. Mrs Poulos wishes to make very serious allegations of fraud against ANZ (and others). Such allegations must be precisely pleaded. The amended statement of claim is deficient in numerous respects. The fact that his Honour also (erroneously) referred to the further amended statement of claim that had been proposed when the matter was before Darke J (and for which no leave was given to file) does not bespeak error in relation to the conclusions that the primary judge drew as to the actual pleading that was filed in the proceedings before him.
We can readily accept that it is daunting for a self-represented litigant properly to formulate a pleading in which such serious allegations are to be made, but that does not mean that a pleading such as this should be permitted to stand. Nor does Mrs Poulos' self-avowed 40 year search to uncover fresh evidence mean that she should be permitted time and again the opportunity to attempt to re-formulate her pleading.
The amended statement of claim filed on 1 November 2022 is replete with allegations of fraud and collusion, including numerous allegations of intentional concealment of evidence and of false evidence. Most of those allegations are pleaded in conclusory terms. The alleged "Ponzi-style scam" appears to be an allegation that ANZ intentionally concealed and withheld from Mrs Poulos that a Finance Corporation of Australia (FCA) loan had been discharged in 1980; that ANZ prevented the discharge of the FCA mortgage being registered for a fraudulent purpose; that branch and regional managers made fraudulent misrepresentations as to the replacement of that loan in the knowledge that there was no such loan, on the basis of which ANZ fraudulently obtained a mortgage over the Cronulla property; and that Commonwealth Bank participated in the scam, fraudulently fabricating cheques for the purpose of the litigation. More than once it is alleged that there was no loan; no funds were advanced or intended to be advanced; there was no settlement on 3 May 1985 and no debt.
Numerous persons are alleged to have participated in various aspects of the alleged fraudulent conduct, including alleged fabrication of evidence and forgery. In a number of instances, what appears to be relied upon is that there is no evidence of certain things.
Serious allegations of fraud and conspiracy (indeed, Mrs Poulos goes so far as to allege perjury) should not be made lightly, and they must be clearly and precisely identified (Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10 at 48 (Toohey J); (1986) 69 ALR 660 (Hughes); Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [59] (Hely J); Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456 at [39]; Central Exploration Pty Ltd v Zuks [2020] WASC 46 at [120] (Allanson J); Johnston v Smith [2002] NSWSC 409 at [25] (O'Keefe J); Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 at [652]). Darke J, unsurprisingly, noted in his August 2021 judgment that fraud must be pleaded distinctly and with particularity (see at [19]), referring by way of example to Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [46] (Leeming JA).
As noted in Muriniti v LawCover Insurance Pty Limited [2022] NSWSC 90 at [476], the general pleading requirements (in particular, the requirements that a pleading set out the material facts on which a party relies in support of its case; that facts that might take a defendant by surprise be specifically pleaded; that the material facts be contained in the pleadings rather than supplied by particulars; and that the pleading give such particulars as are necessary to enable the opposing party to identify the case that the pleading requires to be met - see rr 14.7, 14.14; 15.1 of the UCPR) are of fundamental importance when very serious allegations are made (as they are here).
The deficiencies that Darke J identified with the amended statement of claim then before him (see his Honour's August 2021 judgment) are largely mirrored in the present amended statement of claim. Insofar as Mrs Poulos now ties her allegations of fraud to the "fresh evidence" of the intentional concealment of ANZ as the holder of the LTO BOX#B130, this explains little of the case of fraud that ANZ would have to meet if the pleading were permitted to go forward in its present form. Nor is it clear even on this amended pleading how it is asserted that there was collusion between the alleged participants in the alleged scam.
There is no doubt that Mrs Poulos is firmly of the belief that a wrong has been occasioned to her. However, the present pleading is deficient. Therefore, to the extent that the primary judge considered the pleading to be an abuse of process because of the pleading itself, no error is here shown. Where the pleading is embarrassing in that sense, then its continued use may amount to an abuse of process.
Mrs Poulos also made belated allegations of apprehended bias. There is nothing in the transcript of the hearing (which we have carefully considered) nor in the primary judgment itself from which it could reasonably be concluded that a reasonable and fair-minded observer might be led to fear that the primary judge might not have been in a position to bring an open mind to the application before him (see the "double might" test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [88] per Gleeson CJ, McHugh, Gummow and Hayne JJ). Rather, his Honour seems to have been scrupulous in ensuring that Mrs Poulos understood the nature of the application before him and what had to be addressed in that regard. The fact that his Honour did not delve into the "fresh evidence" is completely explicable having regard to the fact that what his Honour was there determining was the adequacy of the pleading not the factual issues in dispute.
Other complaints by Mrs Poulos, such as the failure to cite the UCPR in his determination or the fact that his Honour referred by way of background to the previous judgments over the years, are both trivial and unfounded. His Honour's reasons (delivered ex tempore) make clear the basis on which the proceedings were dismissed.
As to the complaint by Mrs Poulos that his Honour failed to deal with her application (contained in her written submissions) for leave to amend the statement of claim, it is apparent from a review of the transcript that oral submissions were made for ANZ on that occasion opposing the grant of leave further to amend the pleading. His Honour did not address that explicitly in his ex tempore reasons. Insofar as the complaint is that his Honour erred in not expressly dealing with that application, we consider that this of itself would not warrant grant of leave to appeal. That is because we consider that it would have been open to his Honour to conclude that there would be no utility in permitting a further opportunity for Mrs Poulos to re-formulate her claim (she having had at least three attempts before Darke J and a further two attempts in the proceedings before Ball J). In Trau v University of Sydney (1989) 34 IR 466 at 475 Gleeson CJ, with whom Mahoney and Priestley JJA agreed, observed that the plaintiffs' continuing difficulty to formulate their case is likely "a very good indication that there is no cause of action". The fact that Mrs Poulos is self-represented may well be an explanation for her difficulty in formulating a properly pleaded statement of claim. However, one could place little confidence in the submission by Mrs Poulos that there is someone "interested" in assisting her to formulate her pleading when such assistance seems not to have been forthcoming to date.
Thus, even if there is arguably a House v The King error in the fact that his Honour did not expressly address whether to permit Mrs Poulos an opportunity to re-plead her claim, it would not warrant the grant of leave to appeal.
Insofar as his Honour determined that the proceedings should be dismissed on the basis that the current proceedings are an attempt to re-litigate the issues determined adversely against her in the Commonwealth Bank proceedings, it is clear from the amended statement of claim and the submissions made in writing and orally that what Mrs Poulos is here seeking to do is to raise what might be said to be an expanded case of fraud of the kind asserted some 35 years ago, this time including ANZ as a participant and now relying on the discovery of the identity of ANZ as the holder of the LTO BOX in question. The attempt to plead such a claim was not successful when the matter was before Darke J. As the primary judge here noted, the only judgment obtained by ANZ before Darke J was the dismissal of the proceedings based on the pleadings (and hence that judgment could not be said to have been obtained by fraud). As to the earlier judgments (and the claim now made for damages for the "Ponzi-style scam"), what is lacking is a a proper pleading of fraud.
In UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (UBS v Tyne), Gageler (at [62]), agreeing with the majority in the result, noted that the doctrine of abuse of process is informed by considerations of finality and fairness (see Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [21]). One of the circumstances in which there will be an abuse of process is where the continuance of proceedings will bring the administration of justice into disrepute (see UBS v Tyne at [44]). The present is a case where the continuation of improperly pleaded allegations of fraud is apt to bring the administration of justice into disrepute.
As to the issue of costs, Mrs Poulos argued that the primary judge further perpetrated the frauds by ordering her to pay ANZ's costs. There can be no criticism of a defendant insisting upon a properly pleaded claim being filed particularly where the claim is one as serious as this; and costs appropriately followed the event.
Finally, as to the making of the Teoh style direction, no House v The King error has here been shown. His Honour was faced with yet another in a series of proceedings in which Mrs Poulos has sought to agitate largely the same issues that were determined many years ago, albeit now with the "fresh evidence" referred to above. Her inability to plead a reasonable cause of action in that regard, and the persistent determination to which his Honour referred, makes such an order warranted (and, indeed, it was similarly considered appropriate when the matter was before this Court not so long ago).
For those reasons, we have concluded that the proposed appeal has no prospects of success and in those circumstances leave to appeal would not be warranted. This is not a case where there is a clear injustice in the decision by the primary judge summarily to dismiss the proceeding; nor is there any issue of principle or general public importance articulated by Mrs Poulos. Her invocation of the ICCPR does not assist her in this regard.
Costs should follow the event.
Finally, in circumstances where it appears that Mrs Poulos is persisting in re-agitating very serious issues of fraud, perjury and the like (and the Teoh directions to date have not been effective in desisting such applications) it seems to us that the matter calls for submission by Mrs Poulos as to why she should not be referred to the Attorney-General for consideration as to the making of an application for a declaration that she is a vexatious litigant.

Orders

The orders of the Court are: 1. Refuse leave for an extension of time for the filing of the summons seeking leave to appeal. 2. Dismiss the summons seeking leave to appeal as incompetent. 3. Order the applicant to pay the costs of the respondent. 4. Direct the applicant to file submissions within 14 days as to why the matter should not be referred to the Attorney-General for consideration as to whether to make an application for the applicant to be declared a vexatious litigant.

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: 01 November 2023

Solicitors: Dentons Australia (Respondent) File Number(s): 2023/00127571 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2023] NSWSC 362 Date of Decision: 11 April 2023 Before: Ball J File Number(s): 2022/00297409

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant has sought leave to appeal from the summary dismissal of proceedings brought by her in the Equity Division in which the applicant alleged fraud, conspiracy, perjury and fraud on the Court. The applicant in those proceedings sought, among other relief, orders to set aside earlier judgments in the Equity Division striking out her amended pleading and summarily dismissing earlier proceedings in which the same issues of fraud had been raised. The primary judge dismissed the latest set of Equity Division proceedings on the basis that the cause of action was misconceived and the pleadings were deficient and an abuse of process. The primary judge considered the proceedings to be an attempt by the applicant to relitigate issues determined in other proceedings over 30 years ago and made a "Teoh" direction to the effect that any further application in relation to those matters should be accompanied by submissions as to why the proceedings should not be summarily dismissed in chambers as vexatious. The applicant filed a summons seeking leave to appeal. The applicant seeks to raise a number of grounds of appeal, including apprehended bias. The application for leave was filed out of time. The respondent (ANZ) opposed any extension of time and opposed the grant of leave to appeal, including on the basis that the appeal had no prospects of success. The Court held (Ward ACJ and Adamson JA), refusing an extension of time for the filing of the summons and dismissing the summons with costs: (1) An extension of time was necessary and should be refused because there are no arguable prospects of success on the proposed application for leave to appeal or appeal itself (at [25]). (2) Serious allegations of fraud and conspiracy should not be made lightly, and they must be clearly and precisely pleaded (at [63]). The primary judge did not err in concluding that there were deficiencies in the pleading such that it was an abuse of process (at [66]). Hughes v Western Australian Cricket Association (1986) 19 FCR 10; (1986) 69 ALR 660; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290; Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456; Central Exploration Pty Ltd v Zuks [2020] WASC 46; Johnston v Smith [2002] NSWSC 409; Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433, applied. (3) There is nothing in the transcript of the hearing, nor in the primary judgment itself, that might lead a reasonable and fair-minded observer to fear that the primary judge might not have been in a position to bring an open mind to the application before him and hence no basis for the allegation of apprehended bias (at [67]). Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered. (4) It would have been open to the primary judge to conclude that there would be no utility in permitting a further opportunity for the applicant to reformulate her claim (at [69]). In those circumstances, any error in not expressly dealing with the application (made in the applicant's submissions) for leave further to amend the pleadings would not warrant the grant of leave. Trau v University of Sydney (1989) 34 IR 466, considered. (5) As to the making of a Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324 style direction, no House v The King (1936) 55 CLR 499; [1936] HCA 40 error has been shown. The applicant has sought to agitate largely the same issues of fraud that were determined many years ago on the basis of "fresh evidence" since discovered (relevantly, as to the identity of ANZ as the holder of a LTO Box into which conveyancing documents were deposited), but has been unable properly to plead her allegations of fraud despite a number of attempts. A "Teoh" order was warranted (at [74]). In the circumstances, the matter should be referred to the Attorney-General for consideration as to the making of an application for a declaration that the applicant is a vexatious litigant (at [77]). House v The King (1936) 55 CLR 499; [1936] HCA 40, applied. Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 711; [2011] NSWCA 324, considered. (6) The proposed appeal has no prospects of success and in those circumstances leave to appeal would not be warranted. This is not a case where there is a clear injustice in the decision by the primary judge summarily to dismiss the proceeding nor is there any issue of principle or general public importance that would warrant the grant of leave to appeal (at [75]).

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