Walker v Commonwealth Bank of Australia [2000] FCA 1711

FEDERAL COURT OF AUSTRALIA

Walker v Commonwealth Bank of Australia [2000] FCA 1711 JOHN EDMOND WALKER v COMMONWEALTH BANK OF AUSTRALIA, TERRY BURNS AND PETER SWAN Q 66 of 2000 DOWSETT J 17 NOVEMBER 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 66 OF 2000

BETWEEN: JOHN EDMOND WALKER

APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA

FIRST RESPONDENT

TERRY BURNS

SECOND RESPONDENT

PETER SWAN

THIRD RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 17 NOVEMBER 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The action be dismissed. 2. The applicant pay the respondents' costs of and incidental to the action. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 66 OF 2000

BETWEEN: JOHN EDMOND WALKER

APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA

FIRST RESPONDENT

TERRY BURNS

SECOND RESPONDENT

PETER SWAN

THIRD RESPONDENT

JUDGE: DOWSETT J

DATE: 17 NOVEMBER 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application to dismiss proceedings on the ground that they are frivolous, vexatious or an abuse of process of the Court, or alternatively to strike out the statement of claim. The application is primarily brought pursuant to O 21 r 2. 2 I am satisfied that the applicant was served at his address for service. Although it seems that a person or persons associated with him has or have tried to create confusion as to whether he has knowledge of proceedings, there is no admissible basis upon which I could conclude that he has not had notice. Further, if he has not had notice, it is because he has failed to keep in contact with his address for service. The consequences of that should not be visited upon the respondents. 3 The merits of the respondents' motion are quite clear. The applicant previously had a bank account with the Commonwealth Bank, the first respondent. Mr Burns, the second respondent, was the relevant manager. Mr Swan appears to have had no involvement in the relevant transactions. It is alleged that whilst the account was in credit in the amount of about $300, the bank caused an automatic teller card used to operate on the account to be retained when a transaction was attempted. The applicant says that when he contacted Mr Burns concerning this matter, he was told that it had been retained because of an amount owing on an account of a company of which the applicant was a director and that Mr Burns required funds from the applicant's account to reduce the debit on the company account. According to the applicant, Mr Burns conducted himself in an arrogant and offensive way, asserting a right to transfer funds from the applicant's personal account to the company account. 4 On the basis of these facts, it is alleged that the applicant has a cause of action under s 51AB or s 52 of the Trade Practices Act 1974 (Cth) for which he seeks relief pursuant to s 82 and "common law relief." Although the applicant implies that funds had been transferred from his account to the company account, he does not actually allege it. The closest he comes is the tacit assumption in par 19 of the statement of claim where he asserts that Mr Burns "refused to return the account to a balanced state". There are no circumstances pleaded which could give rise to a claim under s 51AB. It is also impossible to identify any actionable misleading and deceptive conduct pursuant to s 52. It may be that the applicant asserts that Mr Burns misled him by what he said in the telephone conversation, but there seems to be no way in which any damage could have flowed from that, and none is alleged. 5 Quite apart from these considerations which would, in any event, lead to the action being struck out, Mr Burns has sworn an affidavit in which he sets out the substance of his telephone conversation with the applicant, effectively denying the latter's assertions. Mr Burns says that he tried to contact the applicant to make arrangements concerning the company account but was unable to get any response. Perhaps in desperation, he chose to take the possibly somewhat high-handed approach of temporarily terminating use of the automatic teller card, hoping that this would prompt the applicant to contact him, which in fact it did. As I say, it does seem a little on the high-handed side as the bank was holding the applicant's funds. 6 He also swears that no funds were ever transferred from the applicant's account to the company account and that subsequently, the account was closed and the balance returned to the applicant. In those circumstances, it is impossible to imagine any basis upon which a substantial claim for relief could be mounted. The bank may have breached its contract with the applicant, but there is no plea to that effect, nor would there be any substantial damage flowing from such a breach. One could argue for a very long time about minute amounts of interest, but that does not seem to be the basis of the cause of action. In any event, the evidence establishes that the only period during which the applicant was kept out of his money was for a matter of hours on the day in question. It is clear that he is not complaining about that. 7 In the circumstances, I consider the proceedings to be frivolous and vexatious and to constitute an abuse of the process of the Court. The application will be dismissed. The applicant ought pay the respondent's costs of the application. There will be an order in terms of the draft. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.