Croker v Commonwealth Bank of Australia [2000] FCA 279

FEDERAL COURT OF AUSTRALIA

Croker v Commonwealth Bank of Australia [2000] FCA 279

PLEADINGS – pleadings disclose no cause of action – pleadings do not particularise facts that could ground a cause of action – litigant in person Federal Court Rules, rr 11 and 12 CLAYTON ROBERT CROKER v COMMONWEALTH BANK OF AUSTRALIA N 727 OF 1999 TAMBERLIN J SYDNEY 2 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 727 OF 1999

BETWEEN: CLAYTON ROBERT CROKER

APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 2 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Statement of Claim be struck out. 2. Leave is granted to re-plead within 14 days. 3. The applicant to pay the costs of the respondent in this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 727 OF 1999

BETWEEN: CLAYTON ROBERT CROKER

APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 2 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter Mr Croker has filed a Statement of Claim against the Commonwealth Bank of Australia ("the Bank") in which he makes a number of allegations against it including allegations of harsh and oppressive conduct, undue influence, false and misleading conduct and acting without his consent in relation to regulating the amount of credit available to him. The relevant provisions of the Federal Court Rules relating to the necessity for precise and sufficient pleading are embodied in Order 11, which concerns Pleadings, Order 12, which concerns Particulars, and Order 13, which concerns Amendments. The purpose of these provisions is to ensure that the issues for determination by the Court are clearly defined so that the other party to the proceedings will be fully apprised of the nature of the case which is brought against it and will not be taken by surprise at the hearing. 2 The Statement of Claim in the present case fails to meet the standards required by the Federal Court Rules. Even having regard to the fact that Mr Croker is unrepresented, and making every liberal allowance in his favour, I cannot come to the conclusion that the Statement of Claim in the present case is anything like adequate. Particulars have been sought by the respondent Bank but these have not served in any material way to clarify or make more precise the exact nature of the allegations. 3 By way of example Mr Croker alleges that there was a continuing credit agreement with the Bank dated 9 January 1997 with a credit limit of $3000. There is then an assertion that the agreement was false and misleading to Mr Croker, and a statement that no advice or explanation of the facility was given. This discloses no cause of action and does not give any indication of the basis on which advice or explanation of the facility should have been given, by whom it should be given, the circumstances in which it should have been given, or the nature and extent of the explanation which it was appropriate to give in the circumstances. 4 The second matter which is alleged is that the Bank stated an approximate rate of annual interest of 13.9 per cent and that this interest rate has risen to 41.7 per cent (which is a multiplication by three of the annual interest of 13.9 per cent). It is alleged that the Bank failed "to delineate the interest of the facility", by which I take it is meant that the Bank did not explain the nature and extent of the interest. I fail to see any basis in the pleading for an allegation of misleading or deceptive conduct in this respect. Perhaps that is what was intended, but no allegation has been made. Nor is the nature, or indeed the merits, of such a claim evident from the pleading. 5 It is also said that the continuing credit agreement was, "in the control of the respondent for the period of the continuing credit agreement," and that the Bank used its own judgment in regulating the amount of credit to which Mr Croker had access. In discussion with Mr Croker in the course of the hearing it emerged that one of his concerns in relation to this matter is that he should not have been given an increased amount of credit having regard to his strained financial circumstances, and that this was, so far as I can determine, a causative factor in him incurring increased debt. However no particulars are given of any breaches that the Bank has committed in relation to the extension of the amount of credit apart from a bald allegation that it used its discretion to regulate the amount of credit. There is then a bald and unspecified allegation that the overall agreement has been harsh and oppressive to Mr Croker. No doubt by this it is meant that Mr Croker has incurred debt as a result of being unable to pay the credit agreement. However, no particulars or details are given in respect of the way in which the Bank has acted in a harsh and oppressive way and in what ways it has been harsh or oppressive to Mr Croker. 6 The next matter is that Mr Croker says that he has repaid approximately $6000 under the continuing credit agreement. There is no doubt that he has paid some money towards the debt, although the amount is not agreed. In any event this does not give rise to any cause of action. There is then an assertion that the Bank used undue influence in extending the credit limit. As the Rules make clear, it is essential when pleading matters such as undue influence that the pleadings be precise and spell out the circumstances and material facts by reference to which an inference of undue influence can be drawn. The pleading is inadequate in this respect. 7 The final allegation in the Statement of Claim is that Mr Croker obtained a form which allowed him to simply tick a box for an extension of credit to $4500 but that there was no indication to Mr Croker of the implication of the extension of credit, and there was no consideration by the Bank of Mr Croker's financial circumstances. This does not allege any cause of action known to the law. On its face it is not spelt out, for example, what the Bank should have explained, the extent to which Mr Croker should have been consulted, or in relation to which particular conditions of the extension or the continuing credit agreement he should have received advice. 8 Examining the Statement of Claim as a whole I am not satisfied that it discloses any cause of action or that it is in any way compliant with the Rules. In my view it would be vexatious and embarrassing to require the Bank to attempt to speculate as to the matters which it is required to meet. I therefore strike out the Statement of Claim, but grant leave to Mr Croker to re-plead the precise allegation which he wishes to raise having particular regard to the requirements of Order 11 and Order 12 of the Federal Court Rules. This will require, among other things, Mr Croker to carefully consider the nature of the causes of action he proposes to bring against the Bank and the ingredients of those causes of action. 9 For example, if he pleads misleading and deceptive conduct it will be necessary to plead the conduct, statements, or silences, which gave rise to the misleading conduct, and particulars must be given of this and the respects in which the conduct is said to be false or misleading. In addition, it is necessary to establish that he relied on that false and misleading conduct and that in acting in reliance on that false and misleading conduct he suffered loss and damage, which will itself need to be specified. 10 That is simply an example and I do not suggest in any way there is a cause of action available to Mr Croker in this respect on the material which I have seen. I merely mention this to illustrate what is necessary for a proper pleading. Those are the ingredients of the cause of action which I have referred to. However it is not simply enough to allege the ingredients, it is essential to plead the material facts which give rise to and support each of those elements. 11 While giving leave to Mr Croker to re-plead the Statement of Claim, I require him to do this within 14 days. This matter has been on foot for some time and Mr Croker must have some idea of what his cause of action, if any, is at the present time. Accordingly, I strike out the Statement of Claim and I grant leave to re‑plead within 14 days. I order Mr Croker to pay the Bank's costs of this application. 12 Further, I stand the matter over until 30 March 2000, at 9.30 am for further directions. By that time Mr Croker will have filed a Statement of Claim and if the Bank proposes to do anything in relation to that Statement of Claim it can then take any steps it thinks appropriate.