AUSTRALIA & NEW ZEALAND BANKING GROUP LTD v COLLIER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Kirpy P, Hope and CLARKE JJA 20 June 1988, 20 June 1988 [1988] NSWCA 9 TRADE PRACTICES — jurisdiction of Supreme Court — effect of s86 Trade Practices Act 1974 (Cth) — whether jurisdiction to consider alleged breaches of s52 and s68 of Trade Practices Act exclusive in Federal Court of Australia — decisions of Master and of Enderby J given after s86 amended — statement of claim relying inter alia on Trade Practices Act struck out as not disclosing a reasonable cause of action — appeal to Enderby J — purported further appeal to Court of Appeal — held: (1) Leave to appeal was required as judgment appealed from was interlocutory. Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 referred to; (2) Leave should be refused as no sufficient error had been shown to attract leave. Contracts Review Act 1980. Trade Practices Act 1974 (Cth) s52, s68, s86. Kirby P The Court is of the opinion that this is not a matter appropriate for the giving of leave to appeal. Normally such decisions are unelaborated or given with only the briefest of reasons. However, as Mr Robert Collier is before the Court and is unrepresented, as his wife, the other claimant, is not present at Court today and as the decision affects the possession of their home, it is appropriate very briefly to explain why the Court has reached its conclusion. The matter before the Court concerns, in substance, a dispute between Mr and Mrs Collier (the Colliers) and the Australian and New Zealand Banking Group Limited (the Bank) in relation to what began as an apparently normal extension of a loan to the Colliers by the Bank on the security of a mortgage over their home. The advance was in the sum, as it is agreed, of $80,000. There is no dispute that this sum was received by the Colliers. Upon it interest has accrued. These proceedings commenced before Master Sharpe and continued before Enderby J in the Supreme Court. When they were before Master Sharpe it was asserted by the Bank that, with accumulated interest, the amount then outstanding was $130,000 in all. Obviously, with the accumulation of further interest, the amount owing would now be substantially more, if the Bank's contentions are correct. Originally there were before the Court at first instance two sets of proceedings. The first was a proceeding by the Bank against Mr and Mrs Collier in ejectment, seeking possession of the property the subject of the mortgage taken by the Bank. Possession was claimed pursuant to the terms of the mortgage by reason of a relevant default by the Colliers in the payment of principal and interest. The second was a proceeding in the Equity Division by Mr and Mrs Collier against the Bank for relief under the Contracts Review Act 1980. Ultimately these two proceedings were consolidated. The consolidated proceedings came before Master Sharpe in August 1987. The Colliers in substance sought relief from the apparent obligations of the terms of the mortgage upon five bases. The first two related to claims for relief which they had raised under s52 and s68(1) of the Trade Practices Act 1974 2 UNREPORTED JUDGMENTS (Cth). The third was an assertion of negligence on the part of the Bank. The fourth was a claim for relief under the Contracts Review Act. The fifth was upon a defence of non est factum. Master Sharpe heard argument upon the claim by the Bank that the statement of claim of the Colliers disclosed no reasonable cause of action and should be struck out. The argument seeking that relief took place on 28 August 1987. The Master gave his reasons for decision on 4 September 1987. In the meantime the Trade Practices Act had been amended to include a new s86. That section in its amended form came into force on 1 September 1987. The new section was designed to confer concurrent jurisdiction upon the Supreme Courts of the States in respect of, inter alia, claims based on s52 and s68 of the Trade Practices Act. The contention of the Colliers, who, though not represented before the Master, had the benefit of written submissions prepared by a solicitor, was, amongst other things, that the Trade Practices Act amendment did not apply. Accordingly, so their argument went, their reliance on the Trade Practices Act was a matter to be determined exclusively by the Federal Court of Australia. The Master dismissed this contention. He held that the Act applied at the time of his decision. That decision was, in turn, challenged before Enderby J. However, it appears to me that it was a correct decision having regard to the terms of the Act. In any case, the Colliers were objecting to the application of the Trade Practices Act by the Supreme Court although it was an integral element in the relief which they had purported to invoke in their statement of claim in the Supreme Court. In this sense, their attack on the jurisdiction of the Supreme Court to afford them relief under the Trade Practices Act, was an attack on the very basis on which they were invoking the relief of the Supreme Court. As I have said, following the adverse decision of Master Sharpe, the Colliers appealed to Enderby J. He heard their appeal on 26 October 1987. That appeal was heard under the Supreme Court Act 1970. It was thus an appeal by way of rehearing. At the time of the hearing of the appeal before Enderby J the amended provisions of s86 of the Trade Practices Act were certainly in force. There were a number of bases to the Colliers' appeal before his Honour. However, essentially they came down to two. The first was an attack on Master Sharpe's determination of the application of the Trade Practices Act. The second was a suggestion that Master Sharpe had denied the Colliers natural justice. Enderby J reserved his decision. His Honour delivered judgment on 26 February 1988. In the meantime Master Sharpe, to permit the appeal which ensued before Enderby J, had stood over the Bank's proceedings in ejectment by which the Bank had sought an order for possession. Those proceedings have not yet been determined. Master Sharpe took this sensible course in order to permit the Colliers to exhaust their challenge to his rulings adverse to them. When Enderby J delivered his judgment, the Colliers exercised a purported right to appeal to this Court. The Bank, by its solicitors, on a number of occasions warned the Colliers of its contention that the leave of this Court would be required to bring a further appeal to the Court of Appeal. Despite such warnings, the Colliers proceeded to assert an appeal as of right. In my opinion the Bank's warning to the Colliers was correct. Leave to appeal was required by the Colliers on the basis that the decision of Enderby J, and the orders made, were to be categorised as interlocutory. See Hall v The Nominal Defendant (1966) 117 CLR 423, Barwick CJ 427-430; Taylor J 439-441; Windeyer J 442-445; Tampion v Anderson (1974) 48 ALJR 11, Lord Kilbrandon (for their Lordships) at 12-13; Licul & Ors v Corney (1976) 50 ALJR 439 URJ AUSTRALIA & NEW ZEALAND BANKING GROUP LTD v COLLIER (Kirby P) 3 Barwick CJ 441-2; Gibbs J 444; Carr & Anor v Finance corporation of Australia Ltd (1980-1) 147 CLR 246, Gibbs CJ 248; Mason J 253-6; and Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 Kirby P and Glass JA 377-9, Mahoney JA 380-1. When the matter came first before this Court, Mr Collier appeared and his wife did not appear. Subsequently on that day the Court was asked to adjourn the proceedings to permit Mrs Collier to appear. The Court granted a short adjournment. Mrs Collier then appeared in the afternoon. She asked for an adjournment to permit her time to retain a solicitor to advise her. At that time she stated that she did not wish Mr Collier to speak on her behalf. The Court eventually granted an adjournment. When the case was relisted a solicitor appeared. He asked for a further adjournment which was also granted. This morning that solicitor, before Clarke JA sitting alone, sought and was granted leave to withdraw. The proceeding then continued before this Court. Mrs Collier was not present. But Mr Collier was present. He produced, on this occasion, a document signed by Mrs Collier which purported to indicate that he was representing his wife today. As no point of distinction appears to arise between the positions of Mr and Mrs Collier, the Court, in order to bring these protracted proceedings to a conclusion, continued to hear the proceedings. It did so on the basis that what was sought by Mr Collier was, in effect, the leave of the Court to appeal. The Court addressed itself to the substance of the contentions by the Colliers in their objection to what was decided by Enderby J. It took this course because Mr Collier was appearing in person and because, if there were any basis for allowing leave to appeal, the mistake by Mr and Mrs Collier in proceeding as on an appeal as of right could be corrected by the appropriate grant of leave to appeal. The Court proceeded to examine the Colliers' "notice of appeal" and the ten purported grounds in that notice, in order to see whether any of them would give rise to a ground for the grant of leave to appeal. Sufficient appears from the transcript of the exchanges between Mr Collier and the Court for it to be said that none of the grounds of appeal is such as to attract the leave of the Court. Some of them note apparent errors in dates contained in Enderby J's judgment. However, these are not errors of any consequence for the rights of the parties. They would not therefore attract leave to appeal. Others relate to objections by the Colliers to the course which was taken before Enderby J and earlier before Master Sharpe of accepting the truth of the assertions by the Colliers for the purpose of testing the legal consequences thereof. There is no substance in these grounds. There was no point in either the Master or Enderby J proceeding to make findings of fact if, upon the facts asserted and considered in the way most favourable to the Colliers, relief was not attracted. The most substantial objection remained before this Court in this application, as it had been before Enderby J and before Master Sharpe. It was that the exercise of jurisdiction under the Trade Practices Act in relation to the complaints which the Colliers made of the breaches of that Act by the Bank were within the exclusive jurisdiction of the Federal Court of Australia and not within the jurisdiction of the Supreme Court. The Colliers had commenced proceedings in the Federal Court of Australia. That Court adjourned those proceedings pending the outcome of the proceedings in the Supreme Court. I say nothing as to whether there would be any remaining basis for relief for the Colliers in the Federal Court. That would be a matter for the Federal Court to determine. Pertinently, the only issue in contention before 4 UNREPORTED JUDGMENTS this Court was whether, by the Trade Practices Act, the undoubted jurisdiction of the Federal Court to dispose of the complaints made by the Colliers under s52 and s68 was exclusive to that Court or concurrent with the jurisdiction of the Supreme Court at the relevant time. So far as the objection to the jurisdiction of, first, Master Sharpe and then Enderby J on the basis of the provision of the Trade Practices Act, I see no error in what Enderby J said such as would attract the leave to appeal which the Colliers require. There being no basis in any of the grounds of the purported notice of appeal which would attract leave if, as I would hold, leave is required, the proper order in the circumstances is that the purported appeal filed by the opponents, Robert John Collier and Marion Louise Collier, should be dismissed as incompetent. The motion for leave to file out of time a summons for leave to appeal and for ancillary relief should be dismissed as futile. The Colliers must pay the costs of the Bank of and incidental to the proceedings in the Court of Appeal. In the Common Law Division the matter will now be returned to the Master to dispose of the ejectment proceedings which have been stood over awaiting the outcome of the appeal to Enderby J and the latter proceedings in this Court. Hope JA I agree. Clarke JA I also agree. KIRBY P: The orders which I have proposed are therefore the orders of the Court. 1. Purported appeal filed by the opponents, Robert John Collier and Marion Louise Collier, dismissed as incompetent. 2. Motion for leave to file out of time a summons for leave to appeal and ancillary relief dismissed. 3. Robert John Collier and Marion Louise Collier to pay the costs of the Australia and New Zealand Banking Corporation of and incidental to the proceedings in the Court of Appeal. Counsel for the Claimant: S BLAKE Counsel for the Opponent: McKENZIE (SOL) THEN MR COLLIER (IN PERSON) Solicitors for the Claimant: NORTON SMITH & CO Solicitors for the Opponent: CASULA & KELSO THEN MR COLLIER (IN PERSON)