SKIPPY ROWE In Person v NATIONAL AUSTRALIA BANK LIMITED [2025] SASCA 86

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) CIV-24-010407; CIV-24-011901 First Applicant: ANTHONY ROWE In Person Second Applicant: SKIPPY ROWE In Person Respondent: NATIONAL AUSTRALIA BANK LIMITED Counsel: MR J MARSH - Solicitor: DENTONS AUSTRALIA Hearing Date/s: 08/08/2025 File No/s: CIV-25-008909 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ROWE & ANOR v NATIONAL AUSTRALIA BANK [2025] SASCA 86 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey and the Honourable Justice Stanley) 8 August 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT REAL PROPERTY - TORRENS TITLE - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - POSSESSION - GENERALLY This is an application for leave to appeal against a decision by a Supreme Court judge (the appeal judge) to refuse an extension of time and leave to appeal. The respondent bank sought an order for possession of the applicant’s property after the applicants entered into default under a loan agreement. Further, two interested parties, the Bishops applied to be joined and sought orders ancillary to the enforcement of their judgment and an order for costs obtained against the applicants in the District Court. On 9 October 2024, Dart AsJ made orders for possession and joined the Bishops as interested parties. On 4 November 2024, Costello Aux AsJ made a charging order in the Bishops’ favour. The applicants then instituted two appeals. The first appeal sought to challenge the possession order and other orders made by Dart AsJ. The second appeal sought to challenge the charging order made in favour of the Bishops by Costello Aux AsJ. The appeal judge refused leave to appeal, finding that none of the grounds of appeal were sufficiently arguable to warrant a grant of leave to appeal. The appeal judge also dismissed an application to rely on fresh or further evidence. Held (the Court) refusing an extension of time and refusing leave to appeal: -- 1 of 10 -- 1. There is no basis to conclude that the appeal judge improperly exercised any discretion reposed in him, nor did he fail to take into account relevant matters when determining these or the matter more generally. 2. In all of these circumstances, the interests of justice do not favour the grant of leave to appeal because there is no merit in any of the proposed grounds, and none raise issues of principle or importance. 3. As leave to appeal should be refused, there is no utility in granting an extension of time. 4. Observations made regarding the listing of a matter before two judges of the Court of Appeal. Uniform Civil Rules 2020 (SA) r 213.1(1)(a), referred to. Mallios v Commissioner of Police [2025] SASCA 66; Muscatello v Check Inn Systems Pty Ltd [2024] VSC 745; P v P (2008) 216 FLR 453; Rowe v Bishop (No 3) [2023] SADC 28; Rowe v National Australia Bank Ltd [2025] SASC 50; R v Brown [2012] NTSC 1; Tipping v Stanton [2016] FamCAFC 127, considered. -- 2 of 10 -- ROWE & ANOR v NATIONAL AUSTRALIA BANK [2025] SASCA 86 Court of Appeal – Civil: Livesey P and Stanley JA THE COURT (ex tempore): Introduction 1 By a notice of appeal filed on 25 July 2025, the applicants seek leave to appeal concerning two appeals. On 17 April 2025 a single judge refused leave to appeal in both appeals and, accordingly, an extension of time is required.1 2 The first appeal sought to challenge a possession order and other orders made by Dart AsJ on 9 October 2024. The second appeal sought to challenge a charging order made in favour of two interested parties, the Bishops, on 4 November 2024 by Costello Aux AsJ. 3 For the following reasons, leave to appeal should be refused. Preliminary matter – hearings before two judges 4 The applicants are representing themselves. This hearing follows the civil callover which is held each fortnight. The parties were advised that the Court would convene today’s hearing to determine the question of leave to appeal against the judgment of the appeal judge. The parties were given an opportunity to file short written submissions, limited to three pages, which have been received. The Court also gave the parties an opportunity to make brief oral submissions. 5 Before the hearing, the applicants attempted to interrogate the Court about its reasons for convening a bench of two judges in accordance with s 19C(2) of the Supreme Court Act 1935 (SA) and r 212.4(c) of the Uniform Civil Rules 2020 (SA). The Court declined to be interrogated. 6 The exercise of the discretion to convene a two-judge hearing of the Court of Appeal, as determined by the Chief Justice or the President,2 will potentially turn on a broad range of considerations. The determination may be made with or without a request from the parties, and it may even be made against their opposition. The relevant considerations may include the pressure of the Court’s 1 Rowe v National Australia Bank Ltd [2025] SASC 50 (B Doyle J) (the appeal judge), together with a ruling by B Doyle J refusing the applicants’ application to adjourn the delivery of judgment on 17 April 2025. 2 See generally, Hegarty v Keogh [2021] SASCA 46, [33] (Livesey JA). See also, for example, M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [8] (Doyle and Livesey JJA); DT v Chief Executive of the Department for Child Protection [2021] SASCA 64, [3] (Doyle and Livesey JJA); BAF v The Queen [2021] SASCA 69, [11] (Kelly P and Livesey JA). In Ilich v The Queen [2021] SASCA 45, [2] (Kelly P, Lovell and Livesey JJA) and Calabrese v The Queen [2022] SASCA 65, [3] (Livesey P, Lovell and David JJA), after two judges were initially allocated, the cases were eventually determined by three judges. -- 3 of 10 -- [2025] SASCA 86 The Court 2 business or workload,3 together with the availability of its judges, and an assessment of the urgency of the matter,4 as well as the apparent merit and difficulty of the matter. 7 Today, the applicants asserted that because they did not consent to a two-judge hearing, the matter must be adjourned so that a bench of three could be convened. The Court refused the request for an adjournment. The Court also over-ruled their objection to the appearance of Mr Marsh, who appeared for the respondent bank. The proposed grounds of appeal 8 The applicants relied upon the following proposed grounds of appeal: 2.1 The learned Judge erred at law refusing leave to appeal without adequately considering the substantive legal and factual grounds raised and 2.2 Procedural fairness was denied by refusing we the Appellants reasonable request to defer hearing and judgment thereby violating principles of natural justice and 2.3 The Court improperly exercised judicial discretion with dismissing the appeal while simultaneously delivering final orders without affording we the Appellants the full hearing and 2.4 The judgment failed to take into account relevant matters and improperly considered irrelevant or administrative convenience based considerations and 2.5 The dismissal of the appeal was unreasonable particularly given the decision to reserve judgment which implies the presence of arguable legal issues and 2.6 The order that costs be determined “on the papers” without oral hearing denies we the Appellants and [f]ailed due process to be heard on the issue of costs and 2.7 The judgment lacked sufficient reasons and [f]ailed to articulate the proper legal basis for the refusal of leave and dismissal of the appeal and 9 The applicants sought leave to appeal on the following grounds: 5.1 There Are Arguable Questions of Law and/or Fact of General Importance We the Appellants respectfully contend the proposed appeal raises significant legal and factual questions which warrant appellate scrutiny and the proper exercise of judicial discretion denial of procedural fairness and the threshold for refusing leave in complex civil matters and these questions transcend the immediate dispute and bear broader significance for access to justice transparency and procedural integrity and 3 Workload, DT v Chief Executive of the Department for Child Protection (No 2) [2022] SASCA 55, [12] (Livesey P). 4 Urgency, Marschall v Elson [2023] SASCA 1, [5] (Livesey P and Lovell JA). -- 4 of 10 -- [2025] SASCA 86 The Court 3 5.2 There Has Been Denial of Procedural Fairness and Natural Justice We the Appellants were not afforded reasonable opportunity to present our case or respond to the issues raised prior to the dismissal of our appeal and the Court refused to defer the hearing and/or delivery of judgment despite the requisition made in good faith and this constitutes the serious denial of natural justice which justifies the granting of leave and 5.3 The Judgment Was Entered Without Proper Notice or Opportunity to be Heard Judgment was reserved on 4 March 2025 and delivered on 17 April 2025 without sufficient advance notice or consultation with all parties and we the Appellants were effectively denied the opportunity to make further submissions or seek representation and refusal to grant leave coupled with summary dismissal occurred with circumstances where no adequate reasons were provided and 5.4 The Refusal of Leave and Dismissal Were Manifestly Unreasonable The decision to refuse leave while simultaneously dismissing the appeal and ordering the determination of costs on the papers lacks procedural transparency and appears arbitrary and such decisions undermine public confidence in judicial impartiality and fair hearing rights and 5.5 The Interests for Justice Strongly Favours Grant of Leave We the Appellants acted promptly upon receiving the judgment and now seek leave to appeal in good faith and granting leave will enable proper ventilation for all legal and procedural issues and allow fair and just outcomes and denying leave risks entrenching miscarriage of justice[fullstop]. 10 As may be obvious, these pleadings largely comprised submissions. The applicants also relied on the following written submissions: The appellants respectfully request that Elizabeth Claire Canny and Karen Guazzelli as representatives of the respondent National Australia Bank Limited (ABN 12 004 044 937) (“NAB”) provide the following: 1. Full documentary evidence of the mortgage registration details relating to the Property and along with complete bank transaction records for the date in question and we the appellants require NAB to clarify its position on the status of the mortgage under the Torrens system acknowledging that title protection is subject to exceptions in cases of proven fraud or forgery on title as may be established by we the appellants and registered proprietor and we also request confirmation regarding NAB’s Statement 1 (14 March 2014–30 June 2014) suggesting the mortgage was discharged on 21 March 2014 and confirmation that the purported mortgage and any related lien have been duly released and cancelled on the title and; 2. Clarification on the role and status of the Interested Parties builder Matthew Stuart Alexander Bishop and Hayley Marie Bishop who initially undertook work at the Property with a contract and have been overpaid and currently being unsecured creditors and we the appellants seek advice on whether these parties are considered interlopers in the proceedings and note an outstanding counterclaim involving the builder remains unresolved and request clarification on how these factors impact the current case and -- 5 of 10 -- [2025] SASCA 86 The Court 4 As reflected on NAB statements we the appellants and beneficiaries hold the equitable interest in the property and as beneficiarys have fiduciary duties to act in best interests and manage the trust and real property and • We the appellants contest the validity of the mortgage due to fraud defective notices and failure by NAB to acknowledge payment made by three commercial instruments valued over $1,000,000 that fully discharged the alleged debt and; • We the appellants have faced continued harassment and improper possession proceedings by NAB despite evidence and payments and; • We the appellants highlight procedural and judicial fairness issues including ignored submissions and rushed decisions without fair opportunity to respond and reliance on incorrect legal precedents by the court and; • We the appellant seek clarity on whether any court orders will be binding on the real property under the Torrens system and emphasising the importance of recognising the full satisfaction and accord of the debt and the fiduciary responsibilities owed to we the beneficiarys and; • We the appellants respectfully submit these requests and observations to ensure due process protection of their equitable rights and proper consideration of all evidence and legal principles in this matter[fullstop]. 11 Associated with these submissions, today the applicants claimed that Australia (or perhaps the Australian government) and this Court were registered in the United States. The purpose of this submission seemed to be that the applicants contended that they could not be bound by this Court without their consent. In addition, they relied on the law of the United States, including what they described as “the Clearfield doctrine”.5 12 This resort to pseudo-law, disengaged from the issues actually before the Court, did not assist the applicants. The applicants also sought various documents, including on the grounds of fraud. These new requests and issues could not be raised for the first time in this Court and, otherwise, they restated requests and arguments which had been rejected by the appeal judge. The decision of the appeal judge 13 The appeal judge gave careful and extensive reasons for decision. He had before him evidence that demonstrated that the applicants had entered into a loan contract with the respondent (the bank) on 4 March 2014 by which they were loaned the amount of $304,000, secured by a registered mortgage over the relevant property. The affidavit evidence from the bank demonstrated that the applicants were in default and had been issued with a letter of demand, together with other correspondence foreshadowing possession proceedings. 5 Perhaps the applicants meant Clearfield Trust Co v United States, 318 U.S. 363 (1943), a case where the Supreme Court of the United States had held that federal negotiable instruments were governed by federal law, and a federal court therefore had the right to fashion a governing common law rule. How this assisted the applicants was not clearly explained. -- 6 of 10 -- [2025] SASCA 86 The Court 5 14 Before the possession order was made, the Bishops had applied to be joined as interested parties. They also sought orders ancillary to the enforcement of their judgment and an order for costs obtained against the applicants in the District Court. The judgment concerned an unsuccessful claim made by the applicants against the Bishops concerning building work performed by the Bishops on the applicants’ property. The Bishops succeeded with their counterclaim and obtained a judgment for just over $6,350, together with an order for costs fixed in a lump sum of just over $147,200.6 15 There was evidence demonstrating that the applicants had not satisfied the Bishops’ judgment or costs award. The Bishops also applied for a variation of a freezing order they had previously obtained, together with a charging order against the applicants. 16 On 9 October 2024, Dart AsJ made orders for possession and the joinder of the Bishops as interested parties. No transcript of that hearing was produced. 17 The application for a charging order was set down for argument on 4 November 2024. On that day, orders were made by Costello Aux AsJ in favour of the Bishops. 18 As mentioned, the first appeal challenged the order for possession and the order joining the Bishops as interested parties made on 9 October 2024. The second appeal challenged the charging order made on 4 November 2024. 19 The appeal judge explained in his reasons that leave to appeal was required concerning the possession order by reason of r 213.1(1)(a) of the Uniform Civil Rules 2020 (SA). As the other orders challenged in both appeals were interlocutory in nature, leave to appeal was required for those as well. 20 The appeal judge granted the applicants a short extension of time to commence the second appeal. His Honour also granted them permission to amend the grounds concerning the first appeal to address the complaints they made about the absence of a transcript of the hearing on 9 October 2024. 21 Ultimately, however, the appeal judge refused leave to appeal, and he dismissed an application to rely on fresh or further evidence. He found that none of the grounds of appeal were sufficiently arguable to warrant a grant of leave to appeal.7 22 The appeal judge explained in some detail the unusual course of the appeal hearing before him. It is not necessary for this Court to go into detail. It is sufficient to observe that the applicants took a “combative and uncooperative” approach,8 challenging the appeal judge and interjecting so as to impede counsel 6 Rowe v Bishop (No 3) [2023] SADC 28. 7 Rowe v National Australia Bank Ltd [2025] SASC 50, [18]-[20] (B Doyle J). 8 Rowe v National Australia Bank Ltd [2025] SASC 50, [27] (B Doyle J). -- 7 of 10 -- [2025] SASCA 86 The Court 6 for the respondent presenting his submissions. After the applicants were warned that they may be directed to leave the courtroom, there was a short adjournment. A man who had been present in court, sitting behind the applicants, was removed from the courtroom and the applicants left the precincts of the court.9 23 The appeal judge determined to proceed with the hearing after the applicants left because he was satisfied that the applicants had concluded their submissions. Some of those submissions had been made by a woman who was apparently associated with the applicants.10 24 It is clear from a reading of the reasons of the appeal judge that many of the submissions made by the applicants before him did not engage with the orders made or the relevant legal principles that applied. 25 Indeed, on the first appeal the applicants relied upon decisions which the appeal judge suspected did not exist and were “likely AI hallucinations”.11 Nonetheless, his Honour addressed a number of decisions dealing with the unavailability of a transcript of proceedings, and concluded that the applicants had not been able to point to any substantive complaint about what occurred in the course of the hearing “in respect of which the transcript would be important”.12 26 Where the evidence in support of the possession order was in affidavits and there was no cross-examination, the appeal judge found that any legal argument about the sufficiency of the evidence or the appropriateness of making a possession order could have been advanced by the applicants without reference to a transcript of the submissions made below. 27 In those circumstances, the appeal judge found that the ground of appeal concerning the absence of a transcript was without merit.13 28 The appeal judge reached a similar conclusion concerning the joinder of the Bishops, especially as there was no connection between it and the making of the possession order.14 Similarly, the appeal judge found that there was no merit in the appeal grounds concerning the assertions of payment by means of bills of exchange; the absence of draft minutes of order; the assertion that there was an ex parte hearing (when there was no such hearing); and the filing of a caveat in respect of an asserted trust interest. 9 Rowe v National Australia Bank Ltd [2025] SASC 50, [27], [30]-[31] (B Doyle J). 10 Rowe v National Australia Bank Ltd [2025] SASC 50, [24]-[26], [32] (B Doyle J). 11 Rowe v National Australia Bank Ltd [2025] SASC 50, [37] (B Doyle J). 12 Rowe v National Australia Bank Ltd [2025] SASC 50, [38]-[42], relying, amongst others, on P v P (2008) 216 FLR 453, [78], [85]-[88] (Finn, Coleman and Boland JJ); Tipping v Stanton [2016] FamCAFC 127, [18]-[23] (Strickland, Ainslie-Wallace and Austin JJ), R v Brown [2012] NTSC 1, [23] (Blokland J); Muscatello v Check Inn Systems Pty Ltd [2024] VSC 745, [95] (Harris J). 13 Rowe v National Australia Bank Ltd [2025] SASC 50, [43] (B Doyle J). 14 Rowe v National Australia Bank Ltd [2025] SASC 50, [45] (B Doyle J). -- 8 of 10 -- [2025] SASCA 86 The Court 7 29 As for the second appeal, the appeal judge found that there was no merit in the challenge made to the standing of Costello Aux AsJ to hear the matter,15 as well as the other grounds such as the ground concerning arguments about trust interests.16 30 Shortly prior to the day nominated for the delivery of judgment, the applicants applied to adjourn that hearing. The application to adjourn was rejected in a ruling delivered by the appeal judge on the morning judgment was delivered on 17 April 2025. Costs were addressed on the papers. The determination of the application for leave to appeal 31 When considering leave to appeal, this Court acts in the interests of justice and by reference to three inter-related questions: (1) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (2) whether the decision raises an issue of principle or general importance; and (3) whether allowing the decision to stand would work a substantial injustice to the applicant.17 32 The approach required of this Court when considering whether to grant leave to appeal in connection with a second opportunity to appeal has been considered on a number of occasions:18 Of course, it is necessary to evaluate these questions recognising that this is the applicant’s second application for leave to appeal.19 Because the matter has already received comprehensive consideration by a single judge that will usually make it more difficult for an applicant to demonstrate that the interests of justice require that there be a grant of leave to appeal. Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing. 33 It is far from clear that any error has been made by the appeal judge, still less that there is any injustice associated with the outcome which resulted in orders refusing leave to appeal and refusing leave to receive further evidence. 15 Rowe v National Australia Bank Ltd [2025] SASC 50, [74] (B Doyle J). 16 Rowe v National Australia Bank Ltd [2025] SASC 50, [78] (B Doyle J). 17 McDonald v State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA). 18 Miojlic v City of Onkaparinga Council [2025] SASCA 2, [12]; Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108, [39] (Livesey P, Lovell JA and Stanley AJA). 19 See, for example, M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJA); Sambastian v Police [2024] SASCA 79, [4] (Livesey ACJ and Bleby JA). See Mallios v Commissioner of Police [2025] SASCA 66, [18] (Livesey ACJ and Stanley JA), together with the cases there cited. -- 9 of 10 -- [2025] SASCA 86 The Court 8 34 Certainly, the applicants’ assertions concerning a denial of procedural fairness are baseless. The appeal judge was, as his reasons demonstrate, at pains to afford the applicants every reasonable opportunity to present their arguments and evidence. There is a certain irony in the applicants’ complaint that they were denied procedural fairness in circumstances where they chose to leave the courtroom soon after they were warned that their disruptive conduct may lead to their removal. 35 There is no basis to conclude that the appeal judge improperly exercised any discretion reposed in him, nor did he fail to take into account relevant matters when determining these or the matter more generally. 36 The dismissal of the appeals – following the refusal to grant leave to appeal – was far from unreasonable. The fact that a decision was reserved does not imply the presence of arguable legal issues but, rather, that the appeal judge was concerned to ensure that each of the matters raised for his decision was addressed. 37 The assertion that the judgment “lacks sufficient reasons” is spurious, as is the complaint about determining costs on the papers. 38 Judgment was delivered with reasonable notice to the applicants. It was a matter for the applicants whether they attended and exercised their opportunity to be heard. Certainly, they had the opportunity to make written submission following the delivery of judgment. 39 In all of these circumstances, the interests of justice do not favour the grant of leave to appeal because there is no merit in any of the proposed grounds, and none raise issues of principle or importance. Conclusion 40 As leave to appeal should be refused, there is no utility in granting an extension of time. 41 The order of the Court is that the applications for an extension of time and for leave to appeal are dismissed. -- 10 of 10 --