MR JOHN VISCARIELLO In Person v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2024] SADC 71

On Review from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE PANAGIOTIDIS) CIV-22-003265 Applicant: MR JOHN VISCARIELLO In Person Respondent: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED Counsel: MR E MAY - Solicitor: GADENS LAWYERS Hearing Date/s: 22/05/2024 File No/s: CIV-24-001657 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) 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. VISCARIELLO v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2024] SADC 71 Decision of his Honour Auxiliary Judge Chivell 25 June 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA Minor Civil Review - Applicant brings action against Respondent for failure to remove entry in Personal Property Securities Register - claims $12,000.00 damages, declarations and other orders - Magistrate dismissed action for want of jurisdiction - Respondent willing to pay $12,000.00 damages from early stage. Held - application for declarations and other orders should be refused - order dismissing action rescinded - judgment entered for the Applicant in the sum of $12,000.00. Personal Property Securities Act 2009 (Cth); National Consumer Credit Protection Act 2009 (Cth); Australian Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth); Magistrates Court Act 1991 (SA), referred to. Keane v The City of Salisbury (1995) 87 LGERA 203; Macks v Viscariello [2017] SASCFC 172; Warramunda Village Inc v Pryde [2001] FCA 61; [2001] 105 FCR 437; Foster v Jojodex Australia Pty Ltd (1972) 127 CLR 421 , considered. -- 1 of 8 -- -- 2 of 8 -- VISCARIELLO v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2024] SADC 71 1 Mr Viscariello claims $12,000.00 in damages, declarations and other orders because Australia and New Zealand Banking Group Limited (‘ANZ’), through its subsidiary, Esanda Finance, failed to remove an entry in the Personal Property Securities Register (‘PPSR’). 2 The PPSR is a register created by the Personal Property Securities Act 2009 (Cth). 3 In June 2007, Mr Viscariello entered into a Hire Agreement with Esanda Finance which related to a Holden HSV motor vehicle purchased by Esanda from City Holden in Adelaide. 4 Esanda’s interest in the vehicle was registered in the PPSR. 5 The Hire Agreement was for a period of five years. 6 On 25 June 2012, Mr Viscariello paid to Esanda $21,743.75 with the intention of finalising the agreement. Esanda asserted that he still owed $446.23. Mr Viscariello disputed this and did not pay the extra amount. 7 In October 2012, Esanda decided not to pursue Mr Viscariello for the outstanding amount. They did not inform Mr Viscariello of this decision. 8 On 3 March 2019, Mr Viscariello arranged to sell the vehicle. The proposed purchaser searched the PPSR which stated that the vehicle was subject to a security to Esanda Finance. Esanda had never cleared the entry from the registry despite their decision not to pursue the debt. 9 Mr Viscariello lodged a complaint with the Australian Financial Complaints Authority, who referred the matter to Esanda. 10 Esanda apologised to Mr Viscariello in very clear terms. They assured him that this incident would not affect his credit rating. They offered him $2000.00 as a ‘goodwill’ payment. The entry on the PPSR in relation to Mr Viscariello’s vehicle was removed on 6 March 2019. 11 Mr Viscariello did not accept the offer. In March 2022, he issued proceedings in the Minor Civil Jurisdiction of the Magistrates Court, seeking compensation of $12,000.00 (the jurisdictional limit of the Court in money claims) and seeking declarations that Esanda Finance and/or ANZ had contravened sections of the Personal Property Securities Act 2009 (Cth), the National Consumer Credit Protection Act 2009 (Cth), the Australian Consumer Law which is Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth), and the Corporations -- 3 of 8 -- [2024] SADC 71 2 Act 2001 (Cth). He also sought an order that ANZ pay compensation to be determined at some future date when an ‘expert report’ is provided by him.1 12 Further, Mr Viscariello sought an order that a sealed copy of those declarations to be provided to him ‘to enable the Applicant to approach the Registrar of Personal Property Securities and/or the Australian Securities and Investments Commission, to, if so advised, commence Civil Penalty Proceedings against (ANZ)’. 13 Mr Viscariello also sought orders concerning the correction of his credit report, a written apology (which he had already received), and interest and costs. 14 The claim eventually came before the Magistrate in May 2023 and was heard over three days. Her Honour’s judgment was published on 20 December 2023. Mr Viscariello was dissatisfied with the outcome and seeks a review of her Honour’s decision pursuant to s 38(6) of the Magistrates Court Act 1991 (SA) (‘MCA’). Issues 15 ANZ made an open offer to pay the full amount claimed by Mr Viscariello, namely $12,000.00 plus costs and interest. This offer was conveyed to Mr Viscariello by a letter dated 6 March 2023 from ANZ’s solicitors. The letter is an exhibit to an affidavit of Hanna Tsavalas sworn on 29 March 2023.2 16 The Magistrate observed: 3 Whilst the Magistrates Court in its Minor Civil Jurisdiction can grant any form of relief necessary to resolve a minor civil action (see s 8(1)(d) Magistrates Court Act), that is ordinarily for the purpose of the court reaching the point of determining the remedy. The remedy sought here is $12,000.00. The respondent had for some time been willing to make a payment of that amount to the applicant. He refuses to accept it. The proceedings therefore have not been issued for the purpose of obtaining a monetary judgement but rather, a collateral advantage. If the applicant seeks declaratory relief, then that cannot alone be the basis of a minor civil action. I find that the claim introduces a claim that is not within the categories mentioned in s 3(2) of the Magistrates Court Act and is therefore not a minor civil claim. 17 Later her Honour said: 4 I consider that I do not have jurisdiction to determine this claim as a minor civil action. I consider the appropriate order is to permanently stay the proceedings as an abuse of process. 18 This analysis seems to conflate two distinct issues. If her Honour was ruling on the jurisdictional issue against the applicant, the appropriate order would have 1 FDN 32 - Statement of Claim, [5B]. 2 FDN 37. 3 [2023] SAMC 168, [20]-[21]. 4 [2023] SAMC 168, [26]. -- 4 of 8 -- [2024] SADC 71 3 been a dismissal of the claim. If her Honour found the proceedings were an abuse of process, the appropriate order would have been a stay. 19 After hearing further submissions from the parties on 6 February 2024, her Honour made the following orders: 1. The claim is dismissed. 2. No order as to costs. 20 In view of those orders, I conclude that her Honour held that she had no jurisdiction to try the action for the reasons expressed at [20]-]24] of her judgment, quoted above. I will therefore leave the issue of abuse of process to one side. Jurisdiction 21 Section 8 of the MCA, gives the Magistrates Court jurisdiction: (a) To hear and determine an action (at law or in equity) for a sum of money where the amount claimed does not exceed $100,000; (b) … (c) … (d) To grant any form of relief necessary to resolve a minor civil action. 22 A ‘minor civil action’ is defined in s 3(2) of the MCA as a ‘small claim’. 23 A ‘small claim’ is defined in s 3(1) of the MCA as a ‘monetary claim for $12,000 or less’. 24 Section 32 of the MCA provides: The Court may, on matters within jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed. 25 This power does not add to the court’s jurisdiction. It merely empowers the court to grant declarations as an additional remedy in respect of the subject matter over which it already has jurisdiction.5 26 I conclude that the combined effect of s 8(1)(d) and s 32 of the MCA give the Magistrates Court power to grant declaratory relief in matters within its jurisdiction. 27 In this case, the applicant’s claim for $12,000.00 in damages is a monetary claim within the jurisdiction of the court. The fact that the respondent is willing to pay that amount does not rob the court of jurisdiction. 5 Keane v The City of Salisbury (1995) 87 LGERA 203, 204 (King CJ). -- 5 of 8 -- [2024] SADC 71 4 28 The question then becomes whether declarations should be made in this case. Section 32 of the MCA requires that the proposed declarations must be ‘binding’. In addition, they must comply with equitable principle. 29 In Macks v Viscariello,6 the Full Court of the Supreme Court of South Australia quoted from Young, Declaratory Orders:7 Although the declaratory judgment does not involve a cause of action in the usual sense, the authorities have established that six factors must be present before there can be a declaratory order. These factors are present when the following conditions are met: 1. There must exist controversy between the parties...; 2. The proceedings must involve a 'right'…; 3. The proceedings must be brought by a person who has a proper or tangible interest in obtaining the order, which is usually referred to as ‘standing’ or ‘locus standing’…; 4. The controversy must be subject to the court's jurisdiction both within the court's own charter and also within the jurisdiction so far as private international law rules are concerned ...; 5. The defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim ...; 6. The issue must be ripe - it must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility. 30 The court in Macks also quoted from Warramunda Village Inc v Pryde8 as follows: The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording, in summary form, conclusions reached by the court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability flows. 31 The passage from Young, Declaratory Orders was also cited with approval by the High Court in Foster v Jojodex Australia Pty Ltd.9 32 In this case, the declarations sought by Mr Viscariello are that the ANZ has contravened the various pieces of legislation outlined in para [11] above. This is all Commonwealth legislation, and no declaration made by a Magistrate in a South Australian court would be binding on anyone. Put another way, no such declaration 6 [2017] SASCFC 172, [677]. 7 Young, P.W, QC, Declaratory Orders (2nd Edition, 1984), [202]. 8 [2001] FCA 61; [2001] 105 FCR 437, [8]. 9 (1972) 127 CLR 421 at [427]-[428]. -- 6 of 8 -- [2024] SADC 71 5 would have any practical utility. No right or liability would flow from any such declaration. 33 If Mr Viscariello took a sealed copy of any such declaration to the Registrar of Personal Property Securities and/or ASIC, as he proposes, neither officer would consider any such declaration binding. Any decision to commence Civil Penalty Proceedings against ANZ would be made by that officer in accordance with the relevant Commonwealth legislation, not in accordance with such a declaration. 34 For those reasons, Mr Viscariello’s applications for declarations should be refused. 35 Section 38(d) of the Magistrates Court Act empowers me to affirm the Magistrates’ judgment or rescind the judgment and substitute a judgment that I consider appropriate. The respondent has at all relevant times been willing to pay the sum sought by way of damages. I consider that the appropriate order should have been that the applicant have judgment for that amount. I therefore rescind the Magistrates’ order, dismissing the action. 36 Mr Viscariello also sought orders that: (a) The respondent correct and/or remove and/or withdraw any adverse remarks if recorded or caused to be recorded on the applicant’s Credit Report in which it made to credit reporting agency. The evidence shows that the ANZ corrected the PPSR on 7 March 2019. There is no evidence that ANZ made any other ‘adverse remarks’ which would justify such an order. (b) An order that the respondent provide a written apology to the applicant in terms agreed by the court. The clear facts are that the respondent has already provided a clear apology to the applicant. There is nothing which requires a further order to apologise. (c) An order that ANZ pay Mr Viscariello costs on an indemnity basis. The respondent has been prepared to pay the full amount of the applicants claim for damages since at least 29 March 2023. Neither party was legally represented at the trial or on review. I consider that there should be no order as to costs. (d) An order that the respondent pay interest. As mentioned, the respondent has been prepared to pay the full amount of Mr Viscariello’s claim since March 2023. I decline to order interest. 37 I make the following orders: 1. The Magistrate’s order determining the claim is rescinded. -- 7 of 8 -- [2024] SADC 71 6 2. Judgment be entered in favour of the applicant in the sum of $12,000.00. 3. No order as to costs. -- 8 of 8 --