Gradara v Bolt [1998] FCA 460

FEDERAL COURT OF AUSTRALIA

APPEAL - dismissal of proceedings where no reasonable cause of action - criminal conspiracy pursuant to ss 86 and 87 Crimes Act 1914 (Cth) - whether facts relied on are within the purview of the Act - common law civil conspiracy - relevant limitation period expired. Crimes Act 1914 (Cth) - s 86, s 86A (repealed 15 September 1995), s 86(1)(e) (repealed 25 October 1984), s 87 Cheques and Payment Orders Act 1986 (Cth) - s 59(a), s 78(2) Limitation of Actions Act 1958 (Vic) Federal Court Rules - O 20 r 2(1)(a) TARCISIO GRADARA -v- WENDY BOLT & ANOTHER VG 485 of 1997

FOSTER, NORTH & MANSFIELD JJ 19 MARCH 1998 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 485 of 1997

on appeal from a judge of the federal Court of australia

BETWEEN: tarcisio gradara

Appellant

AND: wendy bolt & another

Respondents

JUDGES: FOSTER, NORTH & MANSFIELD JJ

DATE OF ORDER: 19 MARCH 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 485 of 1997

on appeal from a judge of the federal court of australia

BETWEEN: tarcisio gradara

Appellant

AND: wendy bolt & another

Respondents

JUDGES: FOSTER, NORTH & MANSFIELD JJ

DATE: 19 MARCH 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT (Extempore) FOSTER J: This is an appeal from a decision given on 1 August 1997 by a judge of this Court, Merkel J. By that decision, his Honour gave effect to a notice of motion brought under O 20 r 2(1)(a) of the rules of this Court, which sought that the applicant's proceedings be dismissed on the basis that they disclosed no reasonable cause of action. The proceedings in question were brought by the applicant, Tarcisio Gradara, in person. They consist of an application filed on 19 June 1997 together with a supporting affidavit. The documents in question have obviously not been prepared with the assistance of a member of the legal profession and Merkel J would undoubtedly have approached them on the basis of giving them as liberal a construction as would be possible in those circumstances. I have adopted the same approach in considering whether, as this appeal asserts, his Honour erred in the decision that he gave. The application which founds the proceedings is an application brought by Mr Gradara against respondents who are described as the staff and manager of the Commonwealth Bank, Sydney Road-Albert Street, Brunswick, with the persons Wendy Bolt and S. Byrne being specifically named. It is quite clear that the proceedings are in fact brought against those two named persons. Wendy Bolt is, or was at a relevant time, a member of the staff of that branch of the bank, being a teller, and Mr Byrne was a manager, also at a relevant time. The application makes a claim, "Under Commonwealth Crimes Act 1914 re-printed in 1993, section criminal conspiracy", and then page references are given which obviously relate to the location of the sections upon which the applicant relied. Those sections are set out as, "Paragraph 86, 86A, 87". The grounds alleged are as follows (with some changes to spelling for ease of reading): "The applicant claims $3500 (by way of conspiracy has been rob [sic]) and be from all the expenses free, no pay nothing any more to nobody. This is justice". That is the conclusion of the grounds in the document. The orders sought are: "$3500 must be give [sic] back to the applicant and the applicant must not pay any expenses from past or future from this case". The affidavit in support alleges that, "The respondent commited [sic] conspiracy on 13 August 1984 with [a named solicitor] by accepting a cheque that was not diligented [sic] duly presented for payment, it was a disonor [sic] cheque, a fraudulent cheque, made up to obtain money by decption [sic] from the applicant payee". Then it goes on, "Cheque and Payment Order Act 1986 Commonwealth section (59A) page 20, section 78(2), page 32 - presentment and dishonour". Then the allegation is made that "The charge is criminal conspiracy to obtain money by deception from the payee ...". Further material is alleged in this affidavit. It will be apparent from what I have read that, in the first place, the application relies upon the sections of the Crimes Act 1914 (Cth) ("the Crimes Act"), to which I have made reference, alleging, apparently, that the named respondents acted in breach of those sections in furtherance of a conspiracy of a criminal kind. The other sections referred to are in a separate piece of Commonwealth legislation, the Cheques and Payment Orders Act 1986 (Cth). As the alleged wrongful acts occurred on 13 August 1984, that section of the claim can be immediately disposed of. The Act relied upon, if indeed it gave any rights of action at all - a matter which has not been considered - was not in force at the time of the alleged conspiracy and may consequently be put to one side. The aspect of the claim with respect to expenses can also be dealt with, cast as it is, in the terms to which I have already made reference. The expenses referred to are quite clearly the expenses incurred by the applicant by way of orders for costs that have been made against him in prior proceedings. I will not lengthen these reasons by referring in any detail to those proceedings, but they are apparently some six in number and are listed in a chronology of events which was handed to the Court for the purpose of the conduct of the case. It is clear that the appellant has harboured a great sense of grievance springing from events occurring in August 1984, and also from a particular event in 1989, which has led him to undertake a large number of proceedings in Magistrates Courts and in other courts. There have been two proceedings which obviously touch, to some extent, upon the merits of the matters that he would seek to raise in the current application to this Court. He has been unsuccessful in those previous proceedings, although it is quite apparent that he has not been prepared to accept those results. He is clearly - and I do not say this in a perjorative way at all - very emotionally involved with the matters occurring in 1984 and thereafter. The costs that have been awarded against him in those unsuccessful proceedings, as has been endeavoured to be explained to him during the course of this hearing, are not the subject matter of any appeal to this Court. Any rights he had in regard to challenging those orders for costs would have to have been brought at other times and in other jurisdictions. They are not matters that can be dealt with here. The applicant's claim for $3,500 springs from an assertion that he was entitled to that money and that it was wrongfully retained from him as a result of actions taken in relation to the cashing of a cheque for a larger amount. It is unnecessary in these reasons to go into those facts. It is plain that despite the unsuccessful results of earlier litigation, where he has sought to raise this matter, he wishes once again to raise it in the application to this Court. Merkel J, in dealing with the application for summary dismissal of these proceedings, referred to the fact that the proceedings had been apparently issued under the Crimes Act alleging, as he put it, "a conspiracy involving the Commonwealth Bank in relation to a cheque that appears to have been drawn in 1984". His Honour also referred to the fact that "this basic claim in various forms has been made in a number of courts", a matter to which I have already made reference. His Honour also pointed out that the current respondents in this application had indeed been respondents, amongst other respondents, in those earlier proceedings. His Honour went on to say that the claim made here did not appear, on its face, to raise any cause of action which would normally be within the jurisdiction of this Court. He then referred to the fact that the case had been brought 13 years after the cause of action had accrued. He went on to say, in what appears to be the crux of the judgment, that in his view, "the claim is not one which, on its face, is sustainable as a cause of action in this Court". He therefore found that the requirement of O 20 r 2(1)(a) of the Federal Court Rules had been made out and in the circumstances he dismissed the proceedings. In order for this appeal to succeed it must be shown, of course, that his Honour was in error in making the finding that the proceedings displayed no sustainable cause of action. It has not been suggested to the Court in argument that there was any error involved in his then taking the step, as provided for by the rule, of dismissing the proceedings. If one regards the application as being founded upon the sections of the Crimes Act that are referred to in it, it is necessary to consider whether those sections can reasonably or properly be called in aid of the allegations that are made. In other words, is the cause of action brought in reliance upon those sections of the Crimes Act, one which indeed is a cause of action cognisable in this Court? I am satisfied that so viewed no cause of action has been demonstrated. Section 86 of the Crimes Act deals with conspiracies between persons to commit offences against a law of the Commonwealth, to prevent or defeat the execution or enforcement of the law of the Commonwealth, to effect a purpose that is unlawful under a law of the Commonwealth, to effect a lawful purpose by means that are unlawful under a law of the Commonwealth or to defraud the Commonwealth or a public authority under the Commonwealth. It has not been demonstrated to me that any of the facts upon which it is apparent the appellant seeks to rely in these proceedings can properly be brought within the purview of that section, if indeed that section or any of these sections can properly be relied upon to found a civil action. That latter question is one that is not necessary for decision in these proceedings and I proceed merely on the assumption that they can be so used. Section 86A did not in fact commence until 25 October 1984, that being a date after the transactions in question took place. However, there was in existence a s 86(1)(e) which was substantially in the same terms and regard may be had to that section in considering this aspect of the case. It is clear that neither the existing s 86A nor the earlier section can provide any basis for this application. The sections simply do not apply. They deal with conspiracies to defraud the Commonwealth or a public authority under the Commonwealth and they have no reference to the defrauding of any individual citizen. Section 87 plainly has no relevance. It deals with certificates given by persons authorised or required to do so by a law of the Commonwealth, and it is not arguable that the cheque, which is the subject of the proceedings sought to be brought, could be regarded as a certificate within the meaning of that section. For the reasons which I have elaborated, and regarding this application as being confined only to an allegation of conspiracy involving those sections of the Crimes Act it follows that I would necessarily uphold the judgment given by Merkel J. I have given consideration, however, as to whether this application could be construed as being wider in its terms and as alleging the tort of conspiracy committed in the way in which it is alleged by the applicant, that is, by dealing in a conspiratorial and illegal way in relation to the cheque presented in August 1984. In discussion with the appellant in the conduct of his case before the Court, it appears that he relies upon events occurring in relation to the negotiation of that cheque, which, in 1984, involved the respondent, Wendy Bolt. He does not allege that those events involve the respondent, Mr Byrne, but he says that Mr Byrne became a party to the conspiracy upon which he relies, by giving him information in 1989 which he describes as false in its description of the make-up of that cheque. Even if the claim were to be viewed in this broader way as being a common law civil conspiracy comprising events occurring in 1984 and also an event in 1989, it seems to me that the applicant would clearly face an insuperable difficulty which was probably adverted to by Merkel J but not developed by him in his reasons. The events in relation to the negotiation of the cheque occurred 13 years before this cause of action was sought to be advanced by this application. The other event upon which the appellant relies occurred in 1989. Both events, of course, fall well outside the six-year limitation period which prescribes the time within which a cause of action of this kind could be brought. I have not failed to pay regard to the fact that there is, of course, an allegation of fraud underlying the claim for conspiracy, nor to the fact that the applicant asserts that he really only became fully aware of what had been perpetrated against him in 1989. Even so, it appears from provisions of the relevant Limitation of Actions Act 1958 (Vic) to which counsel has taken the Court, that having been thus appraised in 1989 of the allegedly fraudulent aspects of the claim he seeks to now bring, the limitation period would have commenced to run and would have expired before these proceedings were instituted. In these circumstances and being aware, of course, of the sense of grievance obviously harboured by Mr Gradara, I can see no basis upon which the decision of Merkel J could be disturbed by this Court of Appeal in light of the reasons given by his Honour and in light of my expansion of those reasons in what I have said. It appears that there can be no result in these proceedings other than that this appeal be dismissed with costs . Those are the orders I propose. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster