FEDERAL COURT OF AUSTRALIA Freeman v National Australia Bank [2012] FCA 659 Citation: Freeman v National Australia Bank [2012] FCA 659 Parties: LYNTON NOEL CHARLES FREEMAN v NATIONAL AUSTRALIA BANK and MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN File number: QUD 106 of 2012 Judge: LOGAN J Date of judgment: 23 March 2012 Catchwords: PRACTICE AND PROCEDURE – vexatious litigant pursuant to O 21 r 2 of the Federal Court Rules 1979 (Cth) – application for grant of leave to commence proceedings against parties in respect of whom applicant declared vexatious – no arguable case that any prior judgment obtained by fraud – application dismissed – costs awarded against applicant on indemnity basis Legislation: Federal Court Rules 1979 (Cth) O 21 r 2 Federal Court Rules 2011 (Cth) r 5.08 Cases cited: Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 considered National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 referred to Ramsey v Skyring (1999) 164 ALR 378 considered Date of hearing: 23 March 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr CM Muir Solicitor for the First Respondent: King & Wood Mallesons Solicitor for the Second Respondent: Robinson Locke Litigation Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 106 of 2012 BETWEEN: LYNTON NOEL CHARLES FREEMAN Applicant AND: NATIONAL AUSTRALIA BANK First Respondent MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN Second Respondent JUDGE: LOGAN J DATE OF ORDER: 23 MARCH 2012 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the costs of each respondent on an indemnity basis and, if not agreed, costs are to be taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 106 of 2012 BETWEEN: LYNTON NOEL CHARLES FREEMAN Applicant AND: NATIONAL AUSTRALIA BANK First Respondent MATTHEW LESLIE JOINER AND PHILIP GREGORY JEFFERSON, TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF LYNTON NOEL CHARLES FREEMAN Second Respondent JUDGE: LOGAN J DATE: 23 MARCH 2012 PLACE: BRISBANE REASONS FOR JUDGMENT 1 One feature of the role of the courts in our system of government is finally to quell disputes. In general, that means that after a hearing and determination according to law of a controversy, the expiry of any appeal period, or the disposal of any appeal in respect of a judgment given in original jurisdiction, the adjudication of the court in respect of that controversy is final. 2 That adjudication may or may not meet the expectations of particular litigants as to where, in their perception, the justice of their cause lies. Nonetheless, so that there is a final quelling of a controversy, the judgment of the court stands as to how that controversy is decided, both in fact and in law. There are, of course, exceptions to that finality, principally, so far as civil litigation is concerned, where it can be shown that a judgment which is otherwise final was procured by fraud. Finality is not confined to the civil jurisdiction. Again, in general, in the criminal jurisdiction, a judgment of acquittal brings to an end the ability of the Crown to accuse a person of particular wrongdoing. 3 The present proceeding raises, in an acute way, the feature of finality which I have described in relation to the adjudication of controversies in civil matters. On 22 December 2005, for reasons which his Honour published that day (see National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895), Spender J made orders that: 1. Mr Freeman shall not, without the leave of the Court, commence in this Court any proceeding against the National Australia Bank Ltd ("the Bank") or against Matthew Leslie Joiner and Philip Gregory Jefferson, the respondent's Trustees in Bankruptcy ("the Trustees"), or against both the Bank and the Trustees, or any of their servants, officers, agents or employees, other than an appeal against this order. 2. Any proceeding initiated by Mr Freeman in the Federal Court of Australia against the Bank or the Trustees prior to the making of this order shall not be continued by Mr Freeman without the leave of the Court, other than appeal against these orders. 3. Any application by Mr Freeman for leave of the Court to institute any proceedings against the Bank or the Trustees, or both, shall be served upon the Bank or the Trustees, as the case may be, at least three clear working days prior to the application for leave being filed in the Court. 4. Any such application by the respondent for leave shall be made and determined ex parte, unless the Bank or the Trustees seek to be heard in relation to the application for leave. 5. The respondent pay the costs of both applicants of and incidental to this application. 4 His Honour's reasons for judgment recite at some length the course of litigation both in this Court and in the courts of the State of Queensland as between Mr Freeman, the applicant today and the National Australia Bank and, more laterally, as between him, the bank, and Messrs Matthew Leslie Joiner and Philip Gregory Jefferson, who became the trustees of his bankrupt estate. Included in Spender J's reasons for judgment, at [29], is the text of a "defence" (the designation in apostrophes is that of Spender J) filed by Mr Freeman in the proceeding before his Honour. 5 In that proceeding, the bank and the trustees in bankruptcy sought orders pursuant to the then O 21 r 2 of the Federal Court Rules 1979 (Cth), that Mr Freeman be declared vexatious and required to obtain the Court's leave before commencing any further proceedings. In that application they were successful. The defence set out by Spender J includes, at [5], allegations which bear an uncanny and uncoincidental resemblance to those which feature in the statement of claim which accompanied the application, which is, in turn, the subject of an application for leave to bring proceedings against the bank. 6 Both the bank and the trustees in bankruptcy oppose that application for leave. They seek, pursuant to r 5.08 of the Federal Court Rules 2011 (Cth), that the application be heard and determined at the directions hearing. It is convenient to do that. The bank's submission, which is adopted by the bankruptcy trustees, is that an analysis of the material upon which Mr Freeman relies, in other words, his affidavit filed on 17 February 2012, discloses the following issues as the basis upon which he maintains that the orders for a grant of leave should be granted: (a) there is fresh evidence; (b) there was no debt at the time of bankruptcy; (c) all judgments are based on incorrect evidence; (d) the bank has admitted a corporate culture of maximising profits and not providing and controlling information to other parties; (e) the bank did not discover documents; (f) the bank discovered documents advantageous to the bank but disadvantaged the others; (g) the bank issued incorrect documents, including bank statements; and (h) the bank's representatives gave incorrect information that all judgments in the federal jurisdiction are unjust on the grounds of discovered new evidence, material nondisclosure of new evidence, and are fraudulent. 7 Regard to the statement of claim, as well as Mr Freeman's affidavit, discloses that there is substance in each of the bases apprehended by the bank upon which Mr Freeman seeks a grant of leave. Each of those is a feature of the affidavit, as is underscored as well by the way in which that material is developed in the outline Mr Freeman has lodged. 8 It is not my purpose today to recite again the history of disputation as between the bank and Mr Freeman. That has been amply done by Spender J in his reasons for judgment. Further, today is not a hearing of whether or not, in relation to the bank and the bankruptcy trustees, Mr Freeman is to be regarded as vexatious, having regard to the principles set out in cases such as Ramsey v Skyring (1999) 164 ALR 378 and Kowlaski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153. He already has that status in relation to those parties. Rather, the question for today is whether, notwithstanding his possession of that status, there is anything warranting a grant of leave. In the course of his oral submissions supplementing the written submissions, Mr Freeman was asked by me to identify with precision a particular feature of his affidavit which was new. He drew my attention, by way of response, to an announcement made by the National Australia Bank in July 2005 in respect of a refunding of what the bank acknowledged to be incorrectly debited bank accounts debit tax to particular accounts. 9 That particular body of evidence seems to have been the subject of agitation at the time when Spender J made his determination. I can see nothing in the evidence today which would warrant a grant of leave more particularly, nothing which would support even an arguable case that any prior judgment was obtained by fraud. The application is dismissed. 10 In addition to the order for dismissal, the further order is that the applicant pay the costs of each respondent on an indemnity basis, to be taxed if not agreed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 22 June 2012