FEDERAL COURT OF AUSTRALIA Freeman v National Australia Bank Limited [2005] FCA 1013 PRACTICE AND PROCEDURE – leave to appeal from security for costs order – whether affidavit should be admitted into evidence LYNTON NOEL CHARLES FREEMAN v NATIONAL AUSTRALIA BANK LIMITED (ACN 004 034 937) AND MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN QUD 45 OF 2004 TAMBERLIN J BRISBANE 7 JULY 2005 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 45 OF 2004 BETWEEN: LYNTON NOEL CHARLES FREEMAN APPLICANT AND: NATIONAL AUSTRALIA BANK LIMITED (ACN 004 034 937) FIRST RESPONDENT MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN SECOND RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 7 JULY 2005 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for leave to appeal is refused. 2. The applicant is to pay the costs of the respondent of the application. 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 QUD 45 OF 2004 BETWEEN: LYNTON NOEL CHARLES FREEMAN APPLICANT AND: NATIONAL AUSTRALIA BANK LIMITED (ACN 004 034 937) FIRST RESPONDENT MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LYNTON NOEL CHARLES FREEMAN SECOND RESPONDENT JUDGE: TAMBERLIN J DATE: 7 JULY 2005 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application by Mr Freeman for leave to appeal from an interlocutory judgment of Spender J dated 7 May 2004 ordering that the proceedings by stayed until further order unless Mr Freeman pay an amount of $5000 by way of security for costs. 2 The discretionary power of the Court to grant leave to appeal in a case such as the present is severely constrained. This is an appeal from the exercise of discretion by a trial Judge, which, in itself, requires a clear demonstration of reasons to support the exercise of the discretion in favour of the applicant. The errors that need to be shown in order for leave to appeal to be granted are that the Judge acted on a wrong principle, took into account extraneous or irrelevant matters, made an error of fact or failed to take into account material considerations. In addition, the discretion is in relation to a procedural matter and the principles set out in the case of Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981)148 CLR 170 at 177 by Gibbs CJ, Aickin, Wilson and Brennan JJ are applicable to the present circumstances. The trial Judge therefore had very broad discretion to order security for the payment of costs. 3 The relevant principles which support not ordering security for costs, were carefully taken into account and considered in detail by Spender J in the course of his reasons for judgment. His Honour clearly had regard to the prolonged history of the matter and the number of proceedings that have been involved and his Honour's reasons for judgment place emphasis on this. In the course of his reasoning, his Honour pointed out: "As the submissions by Mr Freeman on his own behalf before me today confirm, what he is seeking to do is to demonstrate what he has been unsuccessful in demonstrating thus far in many proceedings, namely that the decisions in favour of the National Australia Bank from the time of the first trial before Ambrose J and in successive proceedings, have been erroneously determined in favour of the bank and adversely to Mr Freeman." 4 Justice Spender states that one of the major reasons for his Honour's decision that security for costs ought to be ordered is that it is not simply an appeal from a judgment exercising at first instance a discretion adverse to an appellant. The appeal has to be seen in the context of the extensive previous litigation that has occurred between Mr Freeman and the National Australia Bank. His Honour also states that the thrust of Mr Freeman's complaints is to challenge the correctness of findings previously made and that his attempt to appeal from the judgment of Dowsett J must be judged against the fact that the issues sought to be agitated have been determined adversely to Mr Freeman and his appeal rights have been exhausted. 5 On the hearing before me today, Mr Freeman filed in Court a fresh affidavit, annexing to it a Statement of Claim dated 6 July 2005, which has been filed in the Supreme Court of Queensland and bears the stamp of that Court on it, referring to a claim lodged for an amount of $15,513,958 as damages for loss of property and other loss and damage suffered by the plaintiff due to the misleading statements or, alternatively, the alleged deceit and abuse of the Court by the defendant. In support of that claim, Mr Freeman has filed, in the Supreme Court of Queensland, an affidavit that is also annexed to his principal affidavit. The principal affidavit was sworn this morning and was only served on the bank a short time ago. In my view, the filing of this fresh material is not relevant to the present case and I do not admit it in evidence. 6 In all the circumstances, I am not persuaded that this is a case where I ought to grant leave to appeal from the decision of Spender J ordering that the applicant pay security for costs. As his Honour pointed out, the security of $5000 was nowhere near what might be the likely cost of the appeal. His Honour considered, however, that this amount provided some test of the bona fides of the appellant and provided some amount against which the cost expended by the respondent in relation to the numerous cost orders, which amount to in the order of more than 10, or perhaps 14, costs orders, might be able to be secured in the event that Mr Freeman's appeal is unsuccessful. There is considerable force in his Honour's observations. 7 There is no indication that the new Statement of Claim will succeed or indeed any evidence (as opposed to assertion) as to the prospects of success of the new claim. Also, having regard to the previous history of the matter, I do not think that this is a matter in which the filing of a new proceeding should be given any weight in reaching a conclusion on the leave question now before me. 8 Accordingly, the order of the Court in this matter is that leave to appeal from the interlocutory order of his Honour is refused with costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 1 August 2005 The Applicant appeared in person: Counsel for the Respondent: C Muir Solicitor for the Respondent: Mallesons Stephen Jacques Date of Hearing: 7 July 2005 Date of Judgment: 7 July 2005