Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donnelly v Australia and New Zealand Banking Group Ltd [2016] NSWCA 167 Hearing dates: 8 July 2016 Decision date: 08 July 2016 Before: Basten JA, Sackville AJA Decision: (1) Dismiss the application for leave to appeal. (2) The applicant to pay the Bank's costs of the application, to be assessed on an indemnity basis. In relation to the application that the applicant's counsel, Mr Ryan, personally indemnify the Bank with respect to its costs: (3) The respondent is to file and serve written submissions, including a statement as to whether the application is pursued, by Friday, 15 July 2016. (4) Applicant to file and serve written submissions in response by Friday, 29 July 2016, including if oral argument is sought, the reasons for a hearing. Catchwords: APPEAL – application for leave to appeal – judgment below involved application to review an interlocutory decision made in the course of a trial in the Equity Division – trial followed by unsuccessful appeal – appeal followed by unsuccessful application for "judicial review" – second application for "judicial review" rejected – proceedings misconceived Cases Cited: Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760 Donnelly v Australia and New Zealand Banking Group Ltd (unreported, 13 May 2015, Equity Division) Category: Principal judgment Parties: Fiona Marie-Therese Donnelly (Applicant) Australia and New Zealand Banking Group Ltd (First Respondent) ANZ Asia Ltd (Second Respondent) Representation: Counsel: Mr K J Ryan (Applicant) Mr J Foley (Solicitor) (Respondents) Solicitors: Gadens Lawyers (Respondents) File Number(s): 2016/111690 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2016] NSWSC 263 Date of Decision: 15 March 2016 Before: Pembroke J File Number(s): 2015/370460 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant seeks leave to appeal from an ex tempore judgment of a judge of the Equity Division, Pembroke J. [1] The primary judge granted a motion filed by the present respondent (ANZ) for summary dismissal of the applicant's summons. The summons sought what it described as "judicial review" of an interlocutory decision made by Stevenson J on the third day of a hearing which occurred as long ago as November 2013. 2. Stevenson J upheld ANZ's claim for possession of a property that was the subject of a mortgage by the applicant and her husband to ANZ. [2] His Honour also made orders requiring the applicant to pay moneys due under the mortgage. On the third day of the four day hearing, Stevenson J refused an application on behalf of the applicant to amend her defence. It is that interlocutory decision that has been challenged in the application for "judicial review" determined by the primary judge. 3. The primary judge set out what he described as the "tortured history" of these proceedings. [3] It is unnecessary to set out the detailed history. However, it includes the applicant's unsuccessful appeal to the Court of Appeal against the decision of Stevenson J and her unsuccessful application for special leave to appeal to the High Court. The history of the litigation shows that the applicant has made repeated and unsuccessful attempts to challenge various aspects of Stevenson J's decision, including challenges to his Honour's refusal to permit the applicant to amend her defence. 4. The summons heard by the primary judge is the second application by the applicant for so-called "judicial review" of Stevenson J's decision. The first such application was summarily dismissed by Darke J on 13 May 2015. [4] His Honour described the proceedings, in so far as they sought judicial review of the judgment and orders of Stevenson J, as "plainly misconceived and bound to fail". Darke J also rejected the applicant's claim that ANZ procured the decisions of Stevenson J by fraud, finding that this claim was doomed to fail. 5. The applicant's principal complaint in her current application appears to be that Pembroke J did not deal with the contention that Stevenson J's refusal to permit the amendment to her defence involved a denial of procedural fairness, was "groundless" and resulted in a miscarriage of justice. It also appears to be suggested that the interlocutory decision was a product of bias or apprehended bias. In fact the primary judge did address the complaint. His Honour pointed out that the Court of Appeal had dealt with the merits of the proposed amendment and rejected the applicant's contentions. His Honour observed that the Court of Appeal's finding carried with it: "[t]he conclusion that Stevenson J was justified in refusing leave to amend, and that if leave to appeal had been granted the ground of appeal would have failed". [5] 1. The current application for leave to appeal encounters two obstacles. The first is that, as two judges of the Equity Division have pointed out, the remedy for correcting any error by a trial judge in the course of proceedings is by way of appeal or an application for leave to appeal from the decision, not by way of an application for judicial review brought more than two years after the matter has been finalised. In this case the applicant exercised her rights of appeal and they have been exhausted. 2. Counsel for the applicant has told the Court, without evidence, that the issue was simply overlooked on the appeal to the Court of Appeal. The applicant, however, was represented by the same counsel on the appeal. It is no basis for seeking to set aside a final judgment, confirmed on appeal, that counsel overlooked an argument that might conceivably have been available. 3. The second difficulty is that the applicant has not made out an arguable case that the primary Judge fell into error in summarily dismissing the summons. Nor has any basis been shown for questioning the primary Judge's comment that "the time has come to put a stop to this unnecessary litigation". 4. The application for leave to appeal must be dismissed. ********** Endnotes 1. Donnelly v Australia and New Zealand Banking Group Ltd [2016] NSWSC 263 (Primary Judgment). 2. Australia and New Zealand Banking Group Ltd v Donnelly [2013] NSWSC 1760. 3. Primary Judgment at [19]. 4. Donnelly v Australia and New Zealand Banking Group Ltd (unreported, 13 May 2015, Equity Division). 5. Primary Judgment at [11]. 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