Croker v The Commonwealth Bank of Australia S141/2000 [2001] HCATrans 53 (20 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S141 of 2000

B e t w e e n -

CLAYTON ROBERT CROKER

Applicant

and

THE COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 FEBRUARY 2001, AT 3.05 PM

Copyright in the High Court of Australia

MR C.R. CROKER appeared in person.

MR F. KUNC: It the Court pleases, I appear for the respondent. (instructed by L.E. Taylor of the Commonwealth Bank of Australia)

CALLINAN J: I think both parties have been informed, have they not, that I have a small shareholding in the Commonwealth Bank.

MR CROKER: We have, your Honour. Your Honours, if I could address the Court on the matter of Croker v The Commonwealth Bank of Australia in that special leave application that was filed in all the judgments of the Full Court of the Federal Court.

GUMMOW J: Are we right in thinking that the amount, Mr Croker, in dispute, is in the sum of or around about the sum of $5000?

MR CROKER: Your Honour, no. I can tell you exactly, your Honour.

GUMMOW J: Is it more than that?

MR CROKER: Substantially more. Actually, $10,724.05.

GAUDRON J: What, that includes interest, does it?

MR CROKER: It does, your Honour. Your Honour, if I can give you a brief history of the application and the proceedings in the inferior court, it might shed a little bit more light on the application. The respondent and myself, the applicant, was engaged in a revolving credit agreement in early 1999. That was for the sum of $3000 on a progressive basis of interest on anything that was borrowed. At that stage, your Honours, the respondent was administering the account and also charging - the interests rates were nominal on the statements.

Your Honours, after several months of use of the card, the applicant was still in control of - the respondent was still managing the administration. I would say, your Honours, that at the beginning of the application to the Bank, the continuing credit agreement, there was no explanation to myself on the conditions and also the clauses of the contract which actually were supposed to bind myself and also the respondent.

Further down the line, your Honour, the credit limit was exceeded by myself and at some stage in the future of the extension I was contacted by the Bank to be informed that the credit limit had expired over its agreed limit with myself and the Bank and that the sum was payable immediately. Your Honours, at that stage I found myself in a position where I was quite unable to control the account and the account ran its own course since then.

Your Honours, the application in front of you is one that is concerning - that the justice in the inferior court which was Justice - - -

GUMMOW J: Now, the initial agreement was in 1997, was it?

MR CROKER: Did I say 1999? It could have been - - -

GUMMOW J: No, you said it was 1997.

MR CROKER: Was it 1997, your Honour?

GUMMOW J: It was 1997?

CALLINAN J: It was 19 January 1997, I think. Is that right?

MR CROKER: Sorry, 1997. Time has just flown.

GUMMOW J: The proceedings begun in 1999.

MR CROKER: That is correct. The first application actually was to the Ombudsman to actually - to relieve my application to the Ombudsman to actually clarify the position with the Bank and also the position with their clauses and also their procedural conduct when - - -

GUMMOW J: Now, has the Bank some action against you in another court to recover moneys?

MR CROKER: No, your Honour, not as yet. Your Honour, the proceedings in front of Justice Tamberlin were one that actually the contract with the respondent would be actually voided and damages were payable. The basis was that the Bank's fiduciary duty and also the duty of care in not delineating the processes of the revolving credit agreement was one that was their duty and also their obligation to a customer, your Honours, just in fairness of commerce and trade of the Bank actually take these provisions and also supply some reasonable response to questioning on the conditions and clauses of a revolving loan agreement.

The respondents were sluggish in their action and really were not impressed by any questioning and also actually spurred on that more funds be available through the revolving credit agreement for reasons that were unexplainable.

GUMMOW J: Now, quite apart from the background, the question we have is fairly narrowly focused and fixes upon a particular formulation in the statement of claim, and that was struck out, and the Full Court of the Federal Court refused leave to investigate that question in the Full Court, and the question then is why would we grant special leave in that sort of case, which would be highly unusual.

MR CROKER: Your Honour, I take it from a point of view that the applicant - - -

GUMMOW J: We understand it is important to you but in terms of the overall scheme of things it would be unusual for us to grant leave to appeal on a strike-out pleading point like this.

MR CROKER: Your Honour, I suppose the main question in front of Beaumont and the other two justices, Mathews and Lehane, was one that a notice of appeal was filed on the decision of Justice Tamberlin in the Full - - -

GUMMOW J: They decided you needed leave.

MR CROKER: That is correct, your Honour.

GUMMOW J: Which looks right, I think.

MR CROKER: The question was, if leave was to be asked, it could be actually asked by a notice of appeal and also could be asked for a notice of motion. The honourable Justice Beaumont argued that a notice of motion would have been the correct way to actually file in the Full Court of the Federal Court and therefore dismissed the notice of appeal and continued on the grounds that the objection to competency was upheld with costs, was his order.

GUMMOW J: Well, they refused leave to appeal.

MR CROKER: That is correct, your Honour. Virtually due to the fact that it came as a notice of appeal and not a notice of motion which was the argument that came in front of the court. Your Honour, there are several methods in which an appeal can be brought to a court.

GUMMOW J: No, no, that is not quite right, I think. They refused leave because they said there was no sufficient ground for granting leave because the amended statement of claim did not disclose, with the necessary specificity and so on, a reasonable cause of action.

MR CROKER: Your Honour, in the actual appeal - - -

GUMMOW J: I am looking at the reasons at page 24 which is what matters, I think; page 24 of your application book.

MR CROKER: Which line?

GUMMOW J: Line 10.

MR CROKER: Your Honour, it states:

The test for whether leave to appeal is granted or refused, as described in Decor Corp v Dart Industries Inc is, firstly, "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court" and, secondly, "whether substantial injustice would result if leave were refused, supposing the decision to be wrong".

Your Honour, I would say in that sense that the decisions that were - or, actually, the application in many circumstances are made to the court with not detailing the precise nature or the cause of action which, I suppose, is many a fault in many claims and is misinterpreted or misunderstood by the decision-maker or the justice, your Honour, but on both occasions - on also the first and second occasions in the Federal Court of Australia in front of Justice Tamberlin - I found that I was quite unable to understand his judgments and at that stage I was at a loss to interpret the exact meaning of them.

At the stage where I did receive his judgments, I thought they were actually contradicting what he said in them and therefore put in the application - the notice of appeal to actually set the judgment aside. Your Honours, at that stage I was of mind that there was evidence in the judgments that actually would substantiate a notice of appeal or leave, at least, your Honours, for review. Actually, when the notice of appeal was filed and the first hearing date was set down for directions, Justice Beaumont actually designated that in two days time there would be a hearing and no more evidence was to be filed; only the notice of appeal and a supporting affidavit.

Your Honours, there was - by the Justice's action, he was swift and also intent on making what I thought to be a pre-judgment of the appeal and struck it out as he thought necessary. Your Honours, I am led to believe that in the Federal Court procedures that a notice of motion is only a way of saying several notices - - -

GUMMOW J: I would not worry about what particular document gets you before the Full Court. The question for us is whether the Full Court made some mistake in principle in refusing leave to appeal, on the footing that leave to appeal was necessary against Justice Tamberlin's summary dismissal of the proceedings which involved, I think, a second pleading of the statement of claim.

MR CROKER: Your Honour, the only thing that I am appealing in the decision is was errors in law in that the respondent was misleading and did use abuse of market power and took advantage of someone who was in a situation or a disadvantaged situation, I suppose. One of the best outlinings of that would be in the applicant's authorities that were filed yesterday in the matter of Commercial Bank of Australia Ltd v Amadio (1983) which actually states:

whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.

GUMMOW J: Well, you see, you did not have to deal with the Bank.

MR CROKER: I did not have to deal with the Bank.

GUMMOW J: No, did you?

MR CROKER: I have been a customer - - -

GUMMOW J: There are other banks.

MR CROKER: I know, but I have been a customer of the Bank for over 30 years and I felt obligated as a stake holder to actually deal with that Bank. There is no indication that the Bank actually was to do any wrong. Your Honour, I am not asking for the doctrine of "the king can do no wrong", and be uprooted, I am only asking it to be reworded and say that "the king has done little wrong" and put me in a position where the financial situation and economic situation is more burdened than it would be if the credit card application and also contract had not continued in their hands.

Your Honours, I signed the agreement for a specified amount and that amount was not honoured. It was actually extended quite well above that amount without my knowledge. Really, your Honour, the agreement was one to be stuck by and the breach by the respondent has put the financial pressures on when it is not necessary.

I looked at - Justice Beaumont and also Justice Lehane and also Justice Mathews made a decision before there was actually evidence before the court to support the appeal and the order not to supply any evidence was one that was actually a miscarriage of justice with the respondent supplying also written submissions and also a quite substantial 30-page book, called "The respondent's bundle of documents", your Honours - was very similar to an application book, plus written submissions.

Your Honours, we were asked not to file anything further on the first hearing date. I would say that the respondent's action was actually one that caught me by surprise - bewilderment and unexpected challenge. Your Honours, I would only reiterate what I have already stated - alleged against the respondent.

GUMMOW J: Yes. Thank you, Mr Croker. Yes, Mr Kunc.

MR KUNC: If your Honour pleases. There are only two matters that need concern the Court. The two questions are, first, was the decision of Justice Tamberlin interlocutory or not? The Full Court said, yes, it was interlocutory, therefore leave was required. That decision is supported by extensive and long-standing authority and, as your Honour said, is correct.

The second aspect of the matter was, was it a case in which leave to appeal ought be granted. In our respectful submission, the court, again, correctly applied the test in Decor. There was not sufficient doubt. The pleading, on any view, was plainly inadequate. There was no substantially injustice that would be afforded to the applicant by the pleading being struck out, not least because, as your Honours would be aware, it does not foreclose the opportunity for this applicant, if he got his way, to plead a proper case, to do so again if he can bring a case in proper form against the Bank.

GUMMOW J: That is the ultimate reason why it is interlocutory.

MR KUNC: Yes, with respect, that is the case. All the old authorities dealing with the question of whether or not a matter is interlocutory or not make that clear. In those circumstances, there can be no substantial injustice. In our respectful submission, there is no special leave issue.

GUMMOW J: Now, if we were to refuse special leave, the Bank would seek costs, would it?

MR KUNC: Yes.

GUMMOW J: Yes, Mr Croker.

MR CROKER: Your Honour, just in response to the respondent, I would try and clarify the interlocutory judgment and also one - that is one of the final.....your Honour. I would say Justice Beaumont's argument was, was judgment final or interlocutory? I find it myself difficult to distinguish one that is final or interlocutory in its form.

GUMMOW J: You are not the only person to find it difficult but in response to that, some rules have been laid down about on which side of the line various circumstances fall and the rules that have been laid down in the cases mean you fell on one side of the line rather than the other.

MR CROKER: I concede that, your Honour. I definitely got out of the wrong side of the bed that day but it is hard to - - -

GUMMOW J: It is not a perfect science but it has produced these rules which we have to follow.

MR CROKER: Your Honour, I would also try and justify why a special leave application would be something considerable in that the scope and also the repetition, I find, of the Bank's continuing ability to misguide the public or misguide the consumer. As we are well informed, the Commonwealth Saving Bank of Australia has nothing to do with the Commonwealth any more. They have legally departed from the arms of the government but still trade under the Commonwealth Savings Bank of Australia. Your Honours, I would say that the habitualness of the respondent in leading the consumer astray is one that is not unusual by the respondent and is one that is quite frequently reported in our afternoon editions.

GUMMOW J: That does not, I think, go to giving you an immediate course of action to recover the sum of damages you claim.

MR CROKER: Your Honour, the sum of damages would be negligible.

GUMMOW J: Or any sum of damages, actually.

MR CROKER: Any sum of damages, your Honour, would be one that would be punitive in nature and one that would be to enforce on the respondent that they do have a duty to the consumer in financial transactions.

Your Honours, the arena out there for financial and economic stability is very tough and being one which is someone in a disability situation makes it a lot difficult to actually - - -

GUMMOW J: Yes. Now, what do you say about the application for costs against you?

MR CROKER: Your Honour, I would say that the Court hears a lot of appeals or a lot of applications for relief. On many occasion, the application is not made clear and also the judgment to the applicant is not clear as well. I would say that where there is signs that the applicant may face further costs, the application should not be deterred by the threat of it and also that one application that does encompass a question of law that entails some sort of injustice or judicial error and also a public interest, the costs should be reserved or actually the parties should hold their own costs.

GUMMOW J: Yes, thank you, Mr Croker.

The applicant seeks special leave to appeal from the decision of the Full Court of the Federal Court of Australia upholding an objection to competency and refusing leave to appeal against the summary dismissal of his action against the Commonwealth Bank of Australia. No ground has been shown to attract the intervention of this Court in that dispute. Accordingly, special leave to appeal is refused and must, in the ordinary course which applies here, be refused with costs.

AT 3.26 PM THE MATTER WAS CONCLUDED