Stubberfield V Newing B25/1996 [1998] HCATrans 116 (17 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B25 of 1996

B e t w e e n -

JOHN RICHARD STUBBERFIELD

Applicant

and

MALCOLM VICTOR NEWING

Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 12.08 PM

Copyright in the High Court of Australia

MR J.R. STUBBERFIELD: Stubberfield, the applicant, your Honour.

MR M.V. NEWING: Mr Newing, your Honour.

BRENNAN CJ: Mr Newing, I have a certificate here from the Senior Registrar, who certifies that Messrs John Healey & Co, solicitors for the respondent, advise that the respondent does not wish to file a summary of argument and will submit to any order of the Court save as to costs.

MR NEWING: Your Honour, I was only notified a couple of weeks ago of today and I have documents here to show the dilemma I have been in.

BRENNAN CJ: Has Mr Stubberfield seen this document?

MR NEWING: No, your Honour.

BRENNAN CJ: Then, I think Mr Stubberfield will have to see it before we receive it.

MR NEWING: Yes, your Honour.

MR STUBBERFIELD: I object to this turnaround, your Honour.

MR NEWING: To save the Court's time, your Honour, I have a copy of the reserve documents.

BRENNAN CJ: Yes, very well. Thank you.

MR STUBBERFIELD: I object, your Honour.

BRENNAN CJ: What do you object to, Mr Stubberfield?

MR STUBBERFIELD: I got no correspondence from Mr Newing or his solicitors whatsoever on this matter, over many, many months. I have had no response to my argument that I put in, as I should have had, and I have a right - if he wants to be heard now, I have a right to know what his case is, what his response is, before he gives it and before I have time to respond to it.

BRENNAN CJ: We will see whether or not you are prejudiced in any way when the times comes. The first part of these proceedings is for you to present your argument. The Court must then see whether it needs to call on Mr Newing to respond. If you do not make out a case for special leave, Mr Newing will not have to say anything. So let us hear what you have to say to start with.

MR STUBBERFIELD: Yes, your Honour.

BRENNAN CJ: To start with, you want to set aside a judgment, is that right?

MR STUBBERFIELD: I need special leave to appeal, your Honour, to set aside the judgment or to stay the judgment of the Court of Appeal of Queensland. What I am stating in my case - I do not know whether you have had time to look at my written argument, but that is - - -

GAUDRON J: All the papers have been read.

MR STUBBERFIELD: That is basically what I am relying on. What I am saying is that whilst that may be a judgment that stands against me, it cannot represent an estoppel because it is absolutely contrary to law. The judgment, on its face, is illegal; it has to be. You have only got to look at that judgment, which is page 1 and 2 of the record, to see that it is illegal.

GAUDRON J: But that judgment was not the subject of an appeal, was it?

MR STUBBERFIELD: Yes, as a matter of fact, it was.

GAUDRON J: And what happened to that appeal?

MR STUBBERFIELD: It was - - -

GAUDRON J: Special leave was refused.

MR STUBBERFIELD: - - - an application for special leave was refused by this Court

GAUDRON J: That is the end of that judgment, is it not?

MR STUBBERFIELD: With respect, that may be the end of that judgment, your Honour, but the point is, the statute still stands and I can rely on the statute. The basic rule 81, which governs costs, the allowing of costs, says:

In order to allow costs -

I did not put a copy of this in to you; I do not know whether I can now pass these three copies up. But rule 81, basically - and you must aware of this; they are all of the same text through the States - - -

BRENNAN CJ: You can pass it up, if you wish to, Mr Stubberfield.

MR STUBBERFIELD: Rule 81 states - and this is, in effect, an injunction - that:

Costs which do not appear to the taxing officer to have been necessary or proper for the attainment of justice, or for maintaining or defending the rights of the party, or which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake.....shall not be allowed to any party, to be paid or borne by another party.

It is my case that, quite clearly, Mr Newing and his legal advisers knew very, very cleary, when they drafted their application for the cross-appeal to the Court of Appeal, that they could not succeed. It was impossible, on the law, for them to succeed. We have the judgment of the Planning and Environment Court. That judgment has not shown to be in error, in any shape or form. The court - - -

GAUDRON J: The Court of Appeal held that it was in error.

MR STUBBERFIELD: But the Court of Appeal, your Honour, in doing so published reasons that were misrepresented of both fact and law. They claim that there was no town planning certificates before them when, in fact, there were two town planning certificates on the file, at pages 6 and 7. Those town planning certificates were absolutely proof, conclusive proof, that there was no registry entry in the non-conforming.....register. It was only that supposed register entry that gave them their jurisdiction. Without that, they had no jurisdiction.

GAUDRON J: But the Court of Appeal upheld Mr Newing's cross-appeal and made a new judgment, in respect of which you were refused special leave to appeal by this Court.

MR STUBBERFIELD: That is correct.

GAUDRON J: A judgment stands until it is set aside. This Court has once refused to set it aside and now you come here, by another proceeding, on the basis, apparently, of a notice of motion to the Court of Appeal to set it aside, to attempt to re-litigate precisely those matters on which you were refused leave to appeal the first time you came to this Court.

MR STUBBERFIELD: With respect, your Honour, that is not correct. What I come now to litigate is whether or not, having deliberately set out to subvert the law, this man is entitled to receive the costs of doing so.

GAUDRON J: That is part of the Court's judgment, that he was entitled to costs.

MR STUBBERFIELD: Your Honour, that cannot be part of the Court's judgment since the Court's judgment only says, "Costs to be taxed", that is taxed in accordance with the taxing rules.

BRENNAN CJ: Were these - - -

MR STUBBERFIELD: The taxing rules - - -

BRENNAN CJ: Were these costs taxed?

MR STUBBERFIELD: Yes, they were.

BRENNAN CJ: Well, then.

MR STUBBERFIELD: This is what the appeal 140 was about. The taxing officer did not take into consideration that these costs were incurred in contravention of the law, to controvert the law and the administration of justice.

BRENNAN CJ: That is not right. The taxing officer took into account what was necessary, obviously enough, to obtain the judgment which was obtained against you, and that is the law for the purposes of the taxing master.

MR STUBBERFIELD: If you look at the - - -

BRENNAN CJ: You may not agree with the judgment - obviously you do not, Mr Stubberfield - but that is what judgments are: judgments declare the law for the parties. Once they are there, there is nothing that the parties can do about them unless there is an appeal court to allow an appeal against them. In this case, the appeal court did not allow an appeal in your favour.

MR STUBBERFIELD: Your Honour, there is high authority that says that where there is a statute, that statute is paramount, and though a party can be estopped from contesting the judgment, a party cannot be estopped from thereafter relying on the statute. And that is what - - -

BRENNAN CJ: And your statute is - - -

MR STUBBERFIELD: - - - and that is what I am relying on, the - that is what I am doing, relying on the statute, that the statute and the law according to the statute says that this man did not have the entitlement to what he got.

BRENNAN CJ: And this is according to Order 91 rule 81, is that right? Is that the statute you are relying on?

MR STUBBERFIELD: No, I am - no, which is the statute I am relying on? The statute - rule 81, 91 - Order 91 rule 81 states that costs shall not be allowed unless they are incurred in the attaining of the justice.

BRENNAN CJ: Is that the statute you are relying on?

MR STUBBERFIELD: Strictly, no, it is not, your Honour, but I afraid you have tangled me up that much. The statute I am relying is the Local Government Planning and Environment Act and the Town Plan of the City of Brisbane. The Local Government Planning and Environment Act and all the common law says that unless this man had the use of timber yard on the appointed day or immediately prior to the appointed day, he could not have it as an existing use; it was not an existing use.

GAUDRON J: That issue was found against you in the Court of Appeal the first time. This Court said it would not grant you special leave to appeal in respect of it. You try to raise exactly the same issue in two ways: you try to raise exactly the same issue on the taxation of the bill of costs; you try to raise exactly the same issue again by a notice of motion to the Court of Appeal to set aside the first appeal judgment. From my point of view, you are just trying to litigate the same matter over and over and over again, and that is called vexation.

MR STUBBERFIELD: That is not so, your Honour. All I am trying to do is to rely on the law. I am entitled to rely on the law. This is one of the - - -

GAUDRON J: It has been held that the law is not as you say.

MR STUBBERFIELD: It has been held that the law is not as you say.

MR STUBBERFIELD: I beg your pardon?

GAUDRON J: It has been held by the Court of Appeal, the first time you were in the Court of Appeal, that the law is not as you say.

MR STUBBERFIELD: That is not correct, your Honour.

BRENNAN CJ: Yes, it is correct; it is correct.

MR STUBBERFIELD: That is not correct. It appears - - -

BRENNAN CJ: Mr Stubberfield, the decision has been given against you. The statute has been held to have a different operation from the operation that you think it ought to have had.

MR STUBBERFIELD: It is not a case of what I - - -

BRENNAN CJ: In that you are wrong and have been held to be wrong. If you want to argue the same thing again which has been argued before, we do not need to hear you any further, if that is all you wish to say.

MR STUBBERFIELD: What I wish to say is that there is a secondary point as well. I put in a motion to the Court of Appeal seeking to argue the Constitution - my constitutional right to receive the benefit and protection of the law. I was prevented by Court of Appeal from bringing that before the High Court.

GAUDRON J: No, you were prevented by this Court from arguing the matter further.

MR STUBBERFIELD: I beg your pardon?

GAUDRON J: You were prevented by this Court, on the first occasion, from arguing the correctness or otherwise of the first decision of the Court of Appeal. Your next time you went to the Court of Appeal - not necessarily the next time. When you asked the Court of Appeal to set aside its decision, you were again seeking to re-litigate that very same matter.

MR STUBBERFIELD: I asked - I pointed out to the Court of Appeal by motion under section, I think, 45(1), of the Supreme Court Rules - I made a notice of motion - and also I asked for an adjournment in that notice of motion because I filed documents for removal of the matter into the High Court to - for removal into the High Court for determination to argue a constitutional matter as to whether I was entitled to the benefit and protection of the law. That was frustrated by the Court of Appeal. I had a right to have that determined in the High Court, not the Court of Appeal. That has nothing to do with the initial matter that the Court of Appeal decided. That is an entirely different matter, whether I have right to the benefit and protection of the law.

BRENNAN CJ: What do you want this Court now to do, Mr Stubberfield?

MR STUBBERFIELD: I would like you to allow me leave to appeal to have that matter heard - - -

BRENNAN CJ: Which matter?

MR STUBBERFIELD: As to whether I have a right to the benefit and protection of the law, whether the - - -

GAUDRON J: Which law?

MR STUBBERFIELD: All Queensland statute law. All Queensland statute laws, and the Commonwealth laws.

GAUDRON J: Which ones, specifically? What in particular - - -

MR STUBBERFIELD: The Planning and Environment - section 3(1).

BRENNAN CJ: In other words, you want this Court to give you the rights which you say you should have been given in the first place by the Queensland statute dealing with the environment?

MR STUBBERFIELD: I want this Court to tell me whether John Richard Stubberfield has the right to the benefit and protection of the law of the State of Queensland, in the courts of Queensland, because consistently I am being refused that right. This is only one instance of about five.

GAUDRON J: No, it is being - the statute was construed contrary to the way for which you contended.

MR STUBBERFIELD: The statute, if you look in the reasons for judgment of that case, you will find they never went to the statute at all, they just simply asked Mr Newing what he wanted to do on his land and said that he would arrange it for him. I was actually misled as to what the grounds were that they were going to act under. I was told - - -

BRENNAN CJ: Mr Stubberfield, if what you want this Court to do now was successful, if you succeeded on an appeal to this Court now, what order would you ask us to make? What do you want us to do? Say what.

MR STUBBERFIELD: I would ask you to make a declaration that I have a constitutional right to receive the benefit and protection of the law in the State courts of Queensland, both the State law, the common law of the Commonwealth and the constitutional law.

BRENNAN CJ: If we said that, how would that help you?

MR STUBBERFIELD: Because I could then rely on that, possibly, to get my other problems sorted out, the problems that are - - -

BRENNAN CJ: What are they?

MR STUBBERFIELD: This is just one of them. There is four or five other problems that have stemmed from this that -our problem is that we have been consistently refused the benefit and protection of the law in Queensland.

BRENNAN CJ: Mr Stubberfield, this Court does not make general declarations like that, because we only deal with particular arguments between the parties who appear here. You have an argument, in this case, with Mr Newing. Unless there is something which you want us to do which affects your rights in relation to Mr Newing, then there is nothing we can do.

MR STUBBERFIELD: That will affect my rights in relation to Mr Newing.

BRENNAN CJ: How?

MR STUBBERFIELD: Because it would mean that I can rely on the law, and that is all I want to do. The law is clear. I have set the law down here.

BRENNAN CJ: You have set it down in your view there, but the Court of Appeal has decided that the law is different.

MR STUBBERFIELD: With respect, your Honour, this is not my view at all. Look at page 59 of the record, there is one, two, three cases there that state specifically and clearly - one of them is the High Court itself in Shire of Perth v O'Keefe. They set the law out, state the law. Stubberfield v Brisbane City Council, my own case on the next block of land sets the law out with crystal clarity. The one I have listed to you is Meacham and Leyland, at 106. You have only got to look at that case and read that case to see that the law by the Court of Appeal was being frustrated and subverted. It was a fraud, in other words. If this Court and the Commonwealth is going to uphold fraud in the Court of Appeal in this State, as it has done on various occasions already, quite frankly, God help me and other people in my predicament. That is all you have to do, look at one case, Meacham and Leyland, and that states the law. The law is not what I say it is at all. Meacham and Leyland is case seven.

BRENNAN CJ: Mr Stubberfield, your time has nearly expired.

MR STUBBERFIELD: Pardon?

BRENNAN CJ: Your time has nearly expired.

MR STUBBERFIELD: I have asked you to look at a case. Are you going to look at a case or are you just - - -

BRENNAN CJ: We have got the case here, but it does not seem to touch the problems that we are facing. I am afraid your time has now expired, Mr Stubberfield. Your time has expired, Mr Stubberfield.

MR STUBBERFIELD: Thank you very much.

BRENNAN CJ: Mr Stubberfield has not been able to raise any arguable ground for the grant of special leave. Accordingly, special leave is refused. We need not therefore hear from you, Mr Newing.

AT 12.33 PM THE MATTER WAS CONCLUDED