FEDERAL COURT OF AUSTRALIA Ninan v St George Bank Ltd [2014] FCA 334 Citation: Ninan v St George Bank Ltd [2014] FCA 334 Parties: GEORGE NINAN AND MOLLY GEORGE v ST GEORGE BANK LTD (ABN 92 055 513 070) and WESTPAC BANKING CORPORATION (ABN 33 007 457 141) File number: WAD 491 of 2013 Judge: MCKERRACHER J Date of judgment: 3 April 2014 Catchwords: PRACTICE AND PROCEDURE – application for leave to commence proceedings repeating allegations made in previous proceedings – whether pursuing proceedings would be an abuse of process – patent deficiencies in pleadings – applicants seeking to repeat same claims made in previous proceedings – proposed proceedings would be an abuse of process – leave to file the proceeding refused Cases cited: Ninan v St George Bank Ltd (2012) 294 ALR 190 Ninan v St George Bank Ltd (No 2) [2013] FCA 273 Ninan v St George Bank Ltd [2013] FCA 818 Ninan v Valuer-General of Western Australia [2013] FCA 789 Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180 Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 Date of hearing: Determined on the papers Date of last submissions: 7 March 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr Ninan represented the applicants Counsel for the Respondents: Mr P Newton Solicitor for the Respondents: Kemp Strang IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 491 of 2013 BETWEEN: GEORGE NINAN AND MOLLY GEORGE Applicants AND: ST GEORGE BANK LTD (ABN 92 055 513 070) First Respondent WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 3 APRIL 2014 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Leave to file the proposed proceeding is refused. 2. The applicants pay the costs of the respondents, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 491 of 2013 BETWEEN: GEORGE NINAN AND MOLLY GEORGE Applicants AND: ST GEORGE BANK LTD (ABN 92 055 513 070) First Respondent WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Second Respondent JUDGE: MCKERRACHER J DATE: 3 APRIL 2014 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 The applicants require and seek the Court's leave to file an application against the respondents. Such leave is necessary due to orders made by Buchanan J on 9 August 2013 in proceedings commenced by the same applicants against (amongst others) the same respondents in the New South Wales Registry of this Court (Ninan v Valuer-General of Western Australia [2013] FCA 789 (Ninan No 2)). Orders made by his Honour in those proceedings were that the applicants provide security for costs by a certain date, failing which those proceedings would stand dismissed. Further, if the proceedings were dismissed for failure to provide security for costs, no further originating application which named any of the respondents to that proceeding as a party was to be filed by the applicants or accepted by any Registry of the Court without leave of the Court. No security for costs was provided and the proceeding was dismissed. Thus the applicants need leave to commence this proposed proceeding. 2 Leave is opposed by the proposed respondents on several grounds. On the return date of the application for leave on 18 February 2014, I made directions for the filing of further materials in response by the respondents and in reply by Mr Ninan. The parties accepted that the matter could be resolved on the papers, once that material had been filed. I had previously indicated to Mr Ninan in the directions hearing in the related proceeding against National Australia Bank (NAB) that there was probably sufficient material to support his application for leave, by which I did not mean that the leave would be granted. Rather, I meant that there was sufficient material on which the leave application could be considered. The remarks which followed in that hearing and in the directions hearing for this proceeding made it clear that I would determine whether or not leave should be granted. THE APPLICANTS' PROPOSED CLAIM 3 The applicants' proposed application of 30 December 2013 claims a variety of breaches by the proposed respondents and seeks damages of millions of dollars as well as exemplary damages and costs. Additionally, the applicants seek interlocutory relief to restrain the proposed respondents from taking any steps in execution of their securities. 4 Various materials have supplemented the application including a draft statement of claim, a genuine steps statement, and submissions and an affidavit of Mr Ninan sworn on 13 February 2014 which were refused for filing prior to the first return date but which I will nevertheless consider. The applicants also seek to rely upon submissions and a second affidavit of Mr Ninan filed in reply to the proposed respondents' submissions. 5 The draft statement of claim, at least in part, bears more resemblance to submissions and assertions rather than the pleading of a series of facts giving rise to a legal conclusion. The following is a sample: a) We seek leave of the court to file this application as we have been illegally barred from filing Originating Applications against the Respondents by Hon. Justice Buchanan under an illegal order contained in FCA 789 of 2013. There can be nothing more unjustifiable than that barring order on us with unassailable claims against the Respondents. b) In any case, this court is obliged to hear the claims detailed here since s37 AT (4) of FCA Act 1976 demanded that we are heard. c) Even further, our application here is seeking special relief and orders based on provisions under s96 of National Credit Code under NCCP Act 2009. It is mandatory for the court to hear both parties on this application as per those provisions. (S96-2) d) Our statements here would show more than a strong case on the face of them (prima facie). They would show that Respondent is taking advantage of the illegal restriction placed on us by order # 4 of FCA 789 of 2013. e) The acts in October, 2013 until now by Second Respondent in themselves are deceptive which were not pleaded before the pronouncement of illegal FCA 789 of 2013. f) It is our solid claim due to many reasons that the illegal order #4 under FCA was issued as a weapon of oppression & that the recent acts by Respondents to deprive us of our only survival income are facilitated by that weapon. g) For these reasons, we claim that the need for "leave to apply" should be waived at the time of accepting and filing this claim instead of a need to hear and decide on it. h) Respondent would not be affected in any way by such prompt action by court but would serve justice to our survival/survival income. 6 The draft statement of claim contains numerous summary statements asserting fraud and deceptive conduct but the specific facts supporting those contentions, with some exceptions, are impossible to discern. 7 Part of the claim appears to be that in 2006 the first proposed respondent (St George Bank) granted the applicants a loan to purchase Lot 124, 15 Lawrencia Loop in Kalbarri, Western Australia (Kalbarri property), on the basis that it commanded a value of $567,000 at the time which was the price paid to the developers. The next pleading is that in 2009 'we demanded to St. G that the loan was deceptive & demanded that they pay us full compensation of an amount close to $750,000. It ended up as a dispute with FOS in 2009' (Financial Ombudsman Services). The applicants claim that the Kalbarri property was sold without the appropriate prior steps specifically, '[a] valid default notice as per s88 of NCC'. I take this to refer to the National Consumer Credit Protection Regulations 2010 (Cth). 8 This is essentially the same piece of property and the same allegations as made against the same respondents, amongst others, in proceedings considered in 2012 by Griffiths J in the New South Wales Registry (Ninan v St George Bank Ltd (2012) 294 ALR 190 (Ninan No 1) and Ninan v St George Bank Ltd (No 2) [2013] FCA 273) and reconsidered by Buchanan J in the context of security for costs (Ninan No 2). There is an allegation of a deceptive act by St George Bank amounting to 'serious fraud' in the context of a valuation report by a named licenced valuer concerning the Kalbarri property. There are similar allegations concerning Lot 11, 104 Sanctuary Circuit, Dawesville and Lot 721, 16 Sandpiper Island Retreat. There are allegations of 'deceptive loans' and 'serious crimes'. The nature of the deception is not articulated. For example, the allegation is put in this way '[w]hen our property at 104 Sanctuary Cct (lot #11) in Dawesville truly commanded an approximate value of only $450,000, Wpc offered us a loan based on its value as $1,425,000'. Similar allegations are set out in respect of 'deceptive loans' by the second respondent (Westpac) in 2007, St George Bank in 2006 and Westpac in 2002. The complaint seems to be that Westpac lent them too much money. 9 The draft statement of claim also includes, as do the submissions in support, allegations against judges and registry staff whom it is contended have denied the applicants their entitlement to justice. 10 The applicants also contend that '[i]t is a well-established rule that land should be sold only at true market value'. The provenance of this rule is not identified. The applicants continue: '[t]herefore it is also a rule that mortgage loans would be based on those true land values'. There is an assertion that '[i]t is also well-established that falsification of land values by false documents of certified valuations is "serious fraud" due to its heavy impact on land values'. 11 The relief sought under the draft statement of claim is expressed as follows: 11. Part B8- Relief sought in General a) We seek an order to totally suspend all actions against us by the Respondents. b) We seek a declaration that Respondents have acted deceptively against us amounting to serious fraud and that we are entitled to full compensation due to those actions. 12. Part B9- Relief for Liquidated damages suffer by us We seek an order to Wpc (including those for St.G) to pay us compensation for liquidated damages caused to us by both the Respondents as on 31 December, 2013 at $3,672,255 (Three million six hundred seventy two thousand two hundred & twenty five only) 13. Exemplary damages & extra ordinary compensations a) We seek a specific order to determine if we are entitled to exemplary damages & extra ordinary compensations under our claims. b) If considered yes, an order to determine the quantum of the same. 12 The first affidavit of Mr Ninan, dated 18 February 2014, goes further asserting the following matters which constitute a blend of assertion and evidence: 3. Banks' current conduct a) It is important to understand the anarchical behaviour or conduct of all the banks involved here currently. b) Before our mortgages may be enforced by the bank, a court order to possess our property is the first step. c) Instead of doing it, the banks are arbitrarily starting to enforce these mortgages by assertions. d) National Australia Bank went much further. They issued illegal notice (Form 14) to our tenants at 26 Surf View & ensured that we were denied to earn our rental, our only survival income. e) By colluding with our property managers & with our tenants, they allow the tenants to stay at our property even today, but by not paying rentals to us. f) On or around, 10 January 2014, Mr. Jason Kyle, our tenant at 26 Surf View called me on the telephone and assured me that though he had not paid the rentals for three weeks at that time, he would pay them immediately. g) He assured me this after checking the legal positions at Reiwa & at Supreme Court at WA as per his conversation with me. h) But the rentals did not come . His wife, Tammy Kyle emailed me on 3 February, 2014 that bank instructed them not to pay us rental. i) It was in response to my email attaching the certificate of title of lot 26 Surf View as of date 31 January, 2014. I had emailed them that they should pay rental to us as we were still the owners & our lease agreement was still valid. j) I have attached that certificate of title marked GN-1001 with this affidavit. k) I do not believe that this would happen in a third world country where a bank orders a party to act illegally & where a bank has no legal standing. l) I have a letter to day confirming that Westpac Bank is enforcing our mortgages though they have no possession of our properties yet. m) The reason for their anarchical behaviour is to escape from their legal obligations to us by a "jail break" or by simply ignoring the norms. 4. Banks earlier conduct a) We bought all our properties in dispute here "off plan" before Interim Valuation or the first valuation of newly sub-divided land is ascertained. b) The value or the price of such a land can only be determined by the Interim Valuation. c) That determination is to be done as per s24 of VLA 1978 & the limitation therein. The limitation spells out that land value cannot be inflated by the mere fact of a sub-division. d) Banks are responsible for the conduct of the developers as per the provisions (S127 -3 of NCC) of NCCP Act, 2009 when the finance the purchases of land from a developer. e) The banks and the developers had not complied with the limitation of the s24 provision of VLA 1978. f) In the case of lot 124 Lawrencia Loop which was illegally sold by St. George Bank in 2012, this issue was proven beyond a doubt. g) Though St. George Bank and the developer claimed the value to be $567,500 in 2006 for this land, Valuer General certified on 4 March, 2011 that its value was only $270,000. I have now attached that letter marked GN-1002 h) I have calculated and determined that its true value was only $7,378 in 2006 as the mother lot with 12 million sq. m area was only worth about $1.1 million in 2006. The area of our lot #124 is only 908 sq.m. i) Therefore, banks had encouraged the developers to sell land at unreasonable prices in large land developments. This is something that cannot be easily determined by the land buyers & the public unless one does a lot of research as the subdivision details are known concurrently to the developers and the financing banks only. … 6. The standing of St. George Bank a) St. Goerge bank had allowed the developers to deceive us by selling lot #124 for $567,500 when that land was way below that sum of money. They knew it well. b) So they have a duty to defend themselves and in their own name. c) It was St. George Bank (and not Westpac Banking) that sold our land lot #124 illegally on 27 July 2012 & derived the benefit of that illegal sale. d) So it is a false claim that St. George Bank has no need to defend their actions after March, 2012. 13 The references above are, inter alia, to s 23 and s 24 of the Valuation of Land Act 1978 (WA) (VLA) discussed by Buchanan J in Ninan No 2 (at [12]). ST GEORGE BANK'S STATUS 14 The applicants' contentions concerning St George Bank relate to the submission raised for Westpac that, inter alia, all of the liabilities of St George Bank have been acquired by Westpac. As indicated above, St George Bank is the proposed first respondent and Westpac the proposed second. As explained in an affidavit of Ms Jillian Parkin, solicitor for the proposed respondents, St George Bank has been deregistered. It is now a division of Westpac. Pursuant to s 22 of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (Business Transfer Act), on 1 March 2010 Westpac became the successor in law of St George Bank. Ms Parkin produced the copy of the Certificate of Transfer issued under the Business Transfer Act to St George Bank and Westpac dated 18 February 2010. This is not new advice to Mr Ninan. Correspondence was produced which establishes that the applicants were informed on 17 July 2012 of the deregistration of St George Bank. That information was given following the institution of proceedings NSD 700 of 2012 on 18 May 2012 by the applicants against the St George Bank and nine other respondents including Westpac. The materials from Ms Parkin make it clear that the applicants have met no costs orders and met no orders for paying of security for costs. Her evidence on this topic is unchallenged. Ms Parkin also refers to orders made on 15 August 2013 by Edmonds J (Ninan v St George Bank Ltd [2013] FCA 818) by which an application for leave to appeal was refused and the applicants were ordered to pay costs. CONSIDERATION 15 For the reasons which follow, I would not grant leave to issue the proceeding. 16 It is clear that many of the statements and assertions made by the applicants replicate the complaints discussed at length by Buchanan J in Ninan No 2. There is no doubt that leave is necessary. As Jacobson J noted in Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180 (at [40]-[41]) it is not necessary that these proposed proceedings be identical to an earlier proceeding for it to be re-litigation. As is recognised in the principles discussed in the authorities referred to by French J, as his Honour then was, in Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 (at [64]-[70]), the question is not to be determined by the precise form of the words stated in a pleading but by considering whether, in all the circumstances, the party is misusing the processes of the Court by seeking to raise issues which were, or could have been, determined in the earlier proceeding. That, of course, was the approach taken by Griffiths J in Ninan No 1 and Buchanan J in Ninan No 2. 17 As noted by Buchanan J in Ninan No 2 (at [20]): It is well established that it is an abuse of process to simply seek to relitigate a case which has already been disposed of by earlier proceedings (Reichel v Magrath (1889) 14 App Cas 665 at 668; Walton v Gardiner (1993) 177 CLR 378 at 393; Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676). Apart from the claims against the City of Mandurah, it appears to me to be incontestable as a matter of substance that the applicants are seeking, in large part, to repeat allegations which have been dealt with to finality in the 2012 proceedings in this Court. To the extent that the proceedings now commenced proceed in that way, they seem clearly to be an abuse of process. The applicants have argued that there is no real overlap between the two sets of proceedings, but that is a conclusion which cannot be accepted. Even though the allegations are, in some respects, expressed in different language, the factual assertions are essentially the same. Like the 2012 proceedings, it is a difficult task to get behind the obscure language and structure used by the applicants in their pleadings, but when that is attempted it is clear that the present cases represent an attempt to revive the 2012 litigation. 18 I would respectfully adopt the summary by Buchanan J (at [20]) in Ninan No 2. On or about 4 September 2013, the applicants filed an application for an extension of time for leave to appeal from the orders made by Buchanan J in Ninan No 2. On 13 November 2013, Jacobson J dismissed those applications. 19 No attempt has been made by the applicants to illustrate the manner, precise or even general, as to why these proceedings are different in form from the proceedings dealt with in Ninan No 2. Indeed, the arguments for the applicants appear to accept that there is no difference or substance. 20 Further, as in Ninan No 1 and Ninan No 2, there are patent deficiencies in the pleadings. I have previously noted that there is no pleading of facts, matters and circumstance supporting conclusions and assertions such as: 'serious fraud', 'deceptive and discriminatory orders are made by the judges', 'the loan was deceptive', 'St.G produced a false document to us', 'Wpc offered us refinancing loans at unconscionable prices by over valuing land held by us', 'deceptive acts of loans at false values to facilitate land purchases at false values are causes of action to claim all damages'. See the observations of Griffiths J in Ninan No 1 (at [46]). 21 Also unanswered is the submission for the prospective respondents that it would be futile to grant leave to the applicants to commence the proceeding because, if leave were granted, the prospective respondent (there is in truth only one, Westpac) would make an application for security for costs. It would also bring a strike out or summary dismissal application. Unless matters change significantly, it is to be expected that security would be ordered, alternatively, the proceedings would be struck out or dismissed. Security for costs has already been ordered on two previous occasions in Ninan No 1 and Ninan No 2. The same matters have been pleaded or foreshadowed in this proceeding as in those proceedings. As Westpac submits, having regard to the earlier proceedings (including the refused application for leave to appeal (Ninan (No 2) [2013] FCA 1180 per Jacobson J), and having regard to the deficiencies discussed, the applicants' foreign residency, the fact that the applicants are impecunious and the broad discretion to grant security for costs conferred by s 56 of the Federal Court of Australia Act 1976 (Cth), security for costs would be likely to be awarded. No submission has been advanced or evidence provided to suggest that such an application would be successfully opposed by the applicants. DISPOSITION 22 Pursuing these proceedings would manifestly be an abuse of process as they re-ventilate substantially the same arguments which have been previously rejected. Leave to file the proceeding and any accompanying application for interlocutory relief will therefore be refused with costs. The following orders are made: 1. Leave to file the proposed proceeding is refused. 2. The applicants pay the costs of the respondents, to be taxed if not agreed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 3 April 2014