ANZ Banking Group v Lawson[2022] QDC 41

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:   This proceeding was commenced by way of originating application on 25 November 2019.  The application was supported by substantial affidavits.  By the application, the bank, namely the applicant, seeks recovery of possession of mortgaged properties on the basis that the debt that is secured by those mortgages has not been paid by the respondent debtors.

Since those initial affidavits were filed with the application very little further has happened in this proceeding.  A couple of subsequent affidavits were filed in January 2020, which simply updated the position rather than being any substantive evidence.  It appears, from affidavits filed in response to the court asking for submissions why the proceeding should not be dismissed for want of prosecution, that in June 2020 the respondents made a complaint to the Australian Financial Complaints Authority, which is a body that is responsible for progressing complaints pursuant to an external dispute resolution scheme authorised under section 1050 of the Corporations Act 2001 of the Commonwealth.

The effect of that scheme is that there is a contract, in essence, between the applicant, the respondents and the Australian Financial Complaints Authority or AFCA.  AFCA has rules which form the provisions of that contract.  One of those rules is that AFCA is required to consider complaints submitted to it in a way that is, among other things, efficient, effective and timely.  The fact that this complaint has been on foot now for over 18 months indicates to me – although I have not heard from AFCA as to the reasons for the delay – that it is not complying with its obligations under that clause.

The problem with AFCA’s failure to comply with that obligation and to resolve the complaint promptly, is that this court has been adjourning the originating application time and time again at the request of the parties.  It seems to have happened on at least six occasions since the proceeding was commenced.

It is entirely unsatisfactory that proceedings in this court should be delayed for such a long time because of such a complaint taking so long to be finalised.  Even now it seems AFCA has issued what it calls a recommendation, which appears to be a form of preliminary view that is not yet binding on the parties.  It only issued that apparently in September 2021.  With that recommendation not having been accepted by the respondents, AFCA will now proceed to make a final determination on the complaint.  Of course, how long it will take to do that is anybody’s guess, although counsel for the applicant submits that it should not take long.

In one respect AFCA is apparently waiting for action by the second respondent, Mrs Lawson, because (I am told) it says that it cannot proceed to determine the complaint made by her without the consent of her trustee in bankruptcy, which she has not yet obtained.  That may be part of the reason for the delay, but it is still unsatisfactory from this court’s point of view, particularly given the parties’ obligations to conduct litigation efficiently and effectively and at a minimum of cost under rule 5 of the Uniform Civil Procedure Rules.

When I was asked last week to adjourn the proceeding yet again, I informed the parties that I required them to appear today and they were told that I wished to hear submissions as to why the proceeding should not be dismissed for want of prosecution.  In response, the respondents made a brief submission to the effect that the proceeding should be dismissed for want of prosecution.  Alternatively, they asked that it be adjourned to June this year to give the AFCA ombudsman the required time to review the case and to take into account new information apparently included in the file as of November last year.

The applicant submits that the proceeding should not be dismissed for want of prosecution because the delay has caused minimal, if any, prejudice to the respondents and a fair hearing of the application is still possible.  Conversely, the bank would suffer significant prejudice if its case were to be dismissed.  When I asked Mr Dudley (for the applicant) what that prejudice would be, he pointed out that the proceeding could be recommenced, it is within the statutory time limit and the prejudice would really be the costs of bringing this proceeding.

To my mind, if this sort of thing happens again, a proceeding should be stayed at the very least so that it is not live and does not cause costs and inconvenience to the parties, the court and the court’s registry by continually bringing the matter on before the court.  I have no confidence in the circumstances of this case that AFCA will make a final determination within a short period of time.  I should say, because I have not said it, that under the rules of AFCA any determination it makes will be binding on the parties.  That would obviously have an effect on the outcome of the proceeding.

But given my lack of confidence that the proceeding will be able to be dealt with one way or another relatively soon, I am not prepared simply to adjourn the matter for another few months, as the parties seem to wish me to do.  In the circumstances, I will order that the proceeding be stayed.  It will then be necessary, if any of the parties wishes to re-enliven it, to make an application to remove the stay.  Given that arguably no step has been taken in the proceeding and, by then, undoubtedly no step will have been taken in the proceeding to further it towards a final determination, for over two years, it would be necessary for a party to apply for leave to proceed in any event.

In these circumstances, the orders that I will make are that the proceeding be stayed and that the parties’ costs of today be their costs in the cause.

I will also direct that the registrar forward a copy of my reasons, once they are published, to the secretary of the Australian Financial Complaints Authority so that it is informed of this court’s concerns with the delays caused by that body.

______________________