EBMA v ANZ Banking Group [2000] FCA 1655

FEDERAL COURT OF AUSTRALIA

EBMA Investments Pty Limited & Ors v Australian and New Zealand Banking Group [2000] FCA 1655 EBMA INVESTMENTS PTY LIMITED & ORS v AUSTRALIAN AND NEW ZEALAND BANKING GROUP A 69 of 2000 O'LOUGHLIN, MATHEWS & WEINBERG JJ 15 NOVEMBER 2000 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 69 OF 2000

BETWEEN: EBMA INVESTMENTS PTY LIMITED & ORS

FIRST APPELLANT

ERNEST ALLESCH

SECOND APPELLANT

WALTER ZIEGLER

THIRD APPELLANT

AND: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT JUDGES: O'LOUGHLIN, MATHEWS & WEINBERG JJ

DATE OF ORDER: 15 NOVEMBER 2000

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal is dismissed as incompetent. 2. The appellants named in the document entitled Notice of Appeal, jointly and severally, pay the party and party costs of the Australia and New Zealand Banking Group Limited. Those costs are to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 69 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: EBMA INVESTMENTS PTY LIMITED & ORS

FIRST APPELLANT

ERNEST ALLESCH

SECOND APPELLANT

WALTER ZIEGLER

THIRD APPELLANT

AND: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT

JUDGE: O'LOUGHLIN, MATHEWS & WEINBERG JJ

DATE: 15 NOVEMBER 2000

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an application by the respondent to the appeal, the ANZ Banking Group Limited, seeking an order that a purported appeal lodged by the three appellants be dismissed as incompetent. For ease of reference we shall describe the applicant in these proceedings, the respondent on the appeal, as "the bank", and the other parties as "the three appellants". 2 The proceedings giving rise to this purported appeal were commenced by the bank on 11 November 1999 in the Supreme Court of the ACT. So far as can be ascertained, the originating process claimed that a liquidated debt was owing and also sought possession of property under a mortgage. 3 On 31 December 1999 the appellants entered a memorandum of appearance. On the same day they filed a notice of motion seeking to transfer the proceedings from the ACT Supreme Court to the ACT Magistrates Court. On 3 March 2000 this application was heard by the Master of the ACT Supreme Court. He dismissed the application, as the bank's claim included a claim for possession of property which was outside the jurisdiction of the Magistrates Court. 4 Since that date various other applications have been filed and heard in these proceedings. We will mention only those which are relevant to the issues raised here. 5 On 4 August 2000 the Master granted leave to the second appellant, Mr Allesch, to represent all three appellants. On 21 September 2000 the appellants filed and served an amended defence. The following day, on 22 September, the bank sought further and better particulars of that defence. On 26 September 2000 the appellants filed a notice of motion seeking leave to issue certain subpoenas for service upon the bank. Two days later, on 28 September 2000, the bank filed and served an affidavit of Mr Greg Lance, the manager of its Fyshwick branch, which annexed all documentation relevant to the case other than material for which privilege was claimed. 6 On 6 October 2000 the appellants' application to issue subpoenas against the bank and the bank's application for further and better particulars were heard by the Master of the ACT Supreme Court. The Master dismissed the appellants' application for leave to issue further subpoenas and ordered that the further and better particulars sought by the bank be furnished by 27 October 2000. 7 It would appear that the Master did not give reasons for his orders, at least none that have been transcribed and provided to us. Kerry Murnain, the respondent's solicitor, who was present in Court during the proceedings, said in an affidavit dated 26 October 2000 that the Master explained to the appellants that the seeking of further and better particulars was an acceptable and normal practice in proceedings before the Court. As to the appellants' request for leave to issue subpoenas to the respondent, the Master indicated that Mr Lance's affidavit appeared to answer the terms of the proposed subpoena. 8 On 24 October 2000 the appellants lodged a document headed "Notice of Appeal" in the ACT District Registry of the Federal Court. In it they purported to appeal from "the whole of the judgment of the Supreme Court of the Australian Capital Territory before Master Connolly given on 6 October 2000 at Canberra." 9 The notice of appeal set out 13 so-called grounds of appeal. These are somewhat unorthodox in their expression. They do not on their face raise matters which appear to be adjudicable on appeal. Moreover, they purport to relate not only to the orders made by the Master on 6 October 2000, but also to his dismissal of the appellants' application for the matter to be transferred to the Magistrates Court which had occurred back on 3 March 2000. 10 It is clear that the judgments of the Master delivered on 3 March and 6 October 2000 were interlocutory by nature. Neither judgment finally determined the rights of the parties to the proceedings - see Brouwer v Titan Corporation Ltd 149 ALR 50. In these circumstances, section 24(1A) of the Federal Court Act requires that an appeal may not be brought from the judgment unless leave to appeal is granted by the Court. No leave to appeal has been sought by the appellants or granted in this case. This is the essence of the bank's application that the appeal be dismissed as incompetent. We consider it to be an unanswerable proposition. The appeal as presently framed is clearly, under the legislation, incompetent. 11 Order 52 rule 10 of the Federal Court Rules provides that an application for leave to appeal from an interlocutory judgment of the Court is to be filed and served within seven days of the judgment or within such further time as the Court or a judge may allow. However, this rule applies to judgments of the Federal Court, not to those of judges or masters of the ACT Supreme Court. The Federal Court Rules are silent as to the time or manner in which leave to appeal from the Master's judgment should be sought. 12 It would no doubt be within the inherent jurisdiction of this Court to grant leave to the appellants to now file an application for leave to appeal from the Master's judgment pursuant to section 24(1A) of the Federal Court Act. However, we do not think that we should make such an order in this case. The notice of appeal, as already indicated, does not contain any recognisable grounds of appeal. Moreover, an appeal as of right exists under the ACT Supreme Court Act 1933. Section 9(2)(a) of that Act provides that a person who is dissatisfied with an interlocutory judgment of the Master may appeal to the Court constituted by a single judge. Order 61A rule 5 of the Supreme Court Rules sets out procedures for such appeals. These require, inter alia, that the appeal be instituted within five days after the date of the judgment complained of. That time has long passed,although there may well be power in the Supreme Court to extend time for filing an appeal. However, we do not think it necessary to explore that issue here. The appellants had a right to appeal to a judge of the ACT Supreme Court which they chose not to exercise. 13 Today Mr Allesch, the second appellant, was given leave to appear for the purpose of these proceedings on behalf of the other two appellants. During his submissions to us he sought to explain why the appellants sought relief in this Court rather than in the Supreme Court. He suggested that some members of the Supreme Court might be biased in relation to the appellants and their case. He gave us a detailed account of the history of the appellants' relationship with the bank and sought that we ourselves should send the case back to the Consumer Credit Tribunal or alternatively that we should order a stay of the Supreme Court proceedings. However, this Court has no jurisdiction to make either of the orders sought by Mr Allesch. The clear fact is that the so-called appeal to this Court is incompetent as being in breach of the Federal Court Act, and therefore this Court has no jurisdiction to make any consequential orders. 14 Other grounds have been raised by the bank in support of the incompetency of this appeal. By way of example, the notice of appeal purports to be filed on behalf of all three appellants by the second appellant. However, under Order 4 rule 14 of the Federal Court Rules leave is required for a person or corporation to be represented by an agent who is not a solicitor. No such leave has been sought or granted in this case. Furthermore, it is submitted that the appeal constitutes an abuse of process having been instituted for an ulterior purpose, namely the stay of the substantive proceedings. Again there is no need to explore this issue here. 15 In the court's view the primary relief sought by the bank should be granted and the purported appeal should be dismissed as incompetent. The bank seeks an order that the appellant pay the costs of this motion on an indemnity basis. However, we consider that insufficient ground has been shown in support of this application. The bank is clearly entitled to its costs but they should be awarded on a party and party basis. 16 The order of the Court is that the purported appeal in these proceedings be dismissed as incompetent. It is further ordered that the appellants named in the document entitled Notice of Appeal, jointly and severally pay the party and party costs of the Australian and New Zealand Banking Group Limited. Those costs are to be taxed in default of agreement.