Rogers v Asset Loan Co Pty Ltd ACN 107 746 798 [2007] FCA 1660

FEDERAL COURT OF AUSTRALIA

Rogers v Asset Loan Co Pty Ltd ACN 107 746 798 [2007] FCA 1660 PRACTICE AND PROCEDURE – application for summary dismissal – O 20 r 2 Federal Court Rules – whether abuse of process – whether an attempt to re-litigate matters already determined by the Court – whether facts, matters and circumstances pleaded in respect of a claim under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) consumer protection provisions identical to facts, matters and circumstances pleaded in respect of an earlier claim under the Trade Practices Act 1974 (Cth) unfair practices provisions – whether, in the circumstances, any material differences between the legislation pursuant to which the proceedings are commenced – whether, in any event, "no reasonable prospects of success" – s 31A Federal Court of Australia Act 1975 (Cth) BANKRUPTCY – alleged counterclaim or set off for damages for financial loss and psychological or mental damage – whether counterclaim or set off actually exists – whether counterclaim or set off relies on facts, matters and circumstances previously before the Court and previously dismissed Held: Substantive application summarily dismissed. Nothing turns on the fact that the application in these proceedings is brought under the ASIC Act as distinct from the Trade Practices Act. Claim is identical to that previously heard and determined by the Court. To allow the application to proceed would constitute an abuse of process as an attempt to re-litigate a matter already determined by the court. Further, and in any event, the application has "no reasonable prospects of success". No counterclaim or set off exists as the facts, matters and circumstances on which the claim for damages for financial loss and psychological or mental damage relies have already been dismissed. Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA, 12DJ Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(7) Federal Court of Australia Act 1976 (Cth) s 31A Trade Practices Act 1974 (Cth) s 52, s 60 Financial Sector Reform (Consequential Amendments) Bill 1998 (Cth) Federal Court Rules O 14 r 8, O 20 r 2 Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34 cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 cited Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 339 applied General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 cited Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 cited Lidden and Anor v Composite Buyers Ltd & Ors (1996) 139 ALR 549 cited Re A Debtor [1958] 1 Ch 81 cited Reichel v Magrath (1889) 14 App Cas 665 applied Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 cited Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 cited Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 cited Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 related Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 applied White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 applied Wilson v Commonwealth of Australia [1999] FCA 1308 cited Miller R, Annotated Trade Practices Act (28th ed, Thomson, 2007)