Gradara v Bolt & Anor M115/1999 [2000] HCATrans 279 (26 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M115 of 1999

B e t w e e n -

TARCISIO GRADARA

Applicant

and

WENDY BOLT and SHARNEY BYRNE

Respondents

Application for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 3.10 PM

Copyright in the High Court of Australia

MR T. GRADARA appeared in person.

HAYNE J: Mr Gradara, you appear for yourself. I understand you may want to have the assistance of an interpreter, is that right?

MR GRADARA: Yes, only because I - if you speak up, I do not need interpreter. So I absolutely most understand what you wanted to say.

HAYNE J: Yes, I understand.

MR J.A. NOLAN: I appear for the respondents, your Honours. (instructed by Herbert Geer & Rundle)

DIANA MARCUZZI, sworn to interpret.

HAYNE J: Mr Gradara, what do you wish to say to us?

MR GRADARA: If you speak up, I will understand. I am sure I can. Your Honour, our Australian soldier are in East Timor to establish human rights. I done more than 25 court, up to 30 court. They never convey or let me convey to the judge the truth. That is what I am here for, to show to you that the whole error of all judges done is just because they accept the affidavit, untrue affidavit, of Herbert Geer & Rundle, solicitor Lam, which the address is Hong Kong.....No 10 High Court Centre, Hong Kong, and also there counsel.....All the judge, even Merkel, have read this affidavit and dismissed the case. I said, "Please, let me defend myself. Let me show that this affidavit is nothing but perjury". And that is what I want you in the end - if I prove to you that this affidavit is a perjury, you should be arrested these people.

We take what is first that all judges accept - from appeal book page 2 line 1 says - this is Finkelstein explain in his judgment that:

Mr Gradara received $10,000 and his solicitor retained $3,500 -

Out of a settlement of $15,000 what the State Insurance pay, they say $10,000 was been given to Mr Gradara and $3,500 retained De Marchi as solicitor and the other $1,500 has been returned to Legal Aid. So if this is true, of course there is no ground, there is no reasonable cause to come up myself here if this is true, and this has also been stated by Branson.....I read in page 25. The judgment of Branson says on line 3 -describe of this affidavit and say:

The sum of $1,500 was paid to the Legal Aid Commission of Victoria as the appellant's contribution to his legal costs.

Then on the line 7 say:

Out of the proceeds, the appellant received $10,000 and his solicitor retained $3,500, ostensibly "on account of his costs", it is said.

Also, Herbert Geer & Rundle on page 36 say the same things. Herbert Geer & Rundle under oath they say these things. "The sum of $1,500 was paid to Legal Aid Commission" on November 15 and on November 20 he say "he received $10,000 and his solicitor retained $3,500". They commit perjury and they make all the benches of all court, they mislead and they make a fool - all the courts. I am sorry, I did not want to offend you, but they got the courage to do this to you. I want to say what De Marchi had to say on this regard. We read page 14, please. De Marchi on this page 14, he was talking to the Judge Tuppen. They made the court with him. At line 9 he say:

Mr Gradara came in -

in his own office -

and he gave Mr Gradara the cheque for $13,500 -

It does not mention that they had to pay De Marchi, it does not mention that he retained $3,500, nothing. On line 24, please read it:

Mr Gradara signed the receipt and was given the $13,500 cash.

It does not mention that he retained $3,500. On line 2 on the same pages we read on the second line, say:

Mr De Marchi says he told Mr Gradara that $1,500 would be retained to provide for Legal Aid and that if Legal Aid required more than that Mr Gradara would have to pay -

more. So therefore what he retain really De Marchi state is only $1,500. There is something wrong with the affidavit of Herbert Geer & Rundle. Then if you turn the pages, he repeat these things. Tuppen was curious to find out if it really has been paid, these $13,500 to Gradara. On page 15 paragraph 5 says:

but did he get in fact the $13,500 Mr De Marchi says he got, or did he only get $10,000?

The comment Judge Tuppen making here is on line 9, say:

Mr De Marchi prior to the settlement did not put into writing to Mr Gradara the details of the offer or any other offer and the likely deductions that would be made from the settlement.

He did the obscure thing. He did get Gradara to obscure anything. I did not know nothing about it when all this thing was gone on. On line 19 it says:

Mr De Marchi's letter of the 5th October, 1984 stated "we had retained $1,500 on trust, but we seem to be short on the amount our client may be required to contribute".

There is a defence De Marchi make because he did not pay Legal Aid. Furthermore, on the next page he repeat, Judge Tuppen, on line 3:

Nonetheless he retained $1,500 to cover any contribution.

Never at any stage Tuppen mention $3,500 is been retained. Furthermore, on line 9 he say:

At no stage was it spelled out in writing to Mr Gradara that the costs of the first action, would become deductable from the proceeds of the second action -

You see how clever is De Marchi. He try to pay with another action with another court what is supposed to be given to Legal Aid straight away. Furthermore, there was a complaint from De Marchi. He said, "Please, Mr Gradara, now I need the money to pay the Legal Aid. Would you help me to pay because I got a telephone $5,000 to pay". I did not know nothing about it. He was in conflict with the Legal Aid. On 30 September 1985 I feel dishonest if I do not give something to De Marchi, if he got no money. I said, "But why don't you give me the bill of account, the statement of release, all the document, and we'll see if you really - you did or you did not get money out of the action." So I take it $500 my home, I went down there and I say, "This is for you". He give me a receipt for repayment of Legal Aid. That is all right.

But notice what Judge Tuppen says here on page 17 on line 1. He say:

The banking of the $500 paid by Mr Gradara on account of the monies due to Legal Aid in Mr De Marchi's account instead of his trust account -

De Marchi take the money, he put in his own bank or his own pocket with no repay Legal Aid, nothing. On page 19 line 10 also he repeated, Tuppen, that:

he retained in trust which I find amounted to $1,500.

This mean that Tuppen understood that he retain only $1,500 but he did not know, Tuppen, that on 22 November 1984 De Marchi took this money out of a trust account and put his own pocket too. For this reason the police charge him and he plead guilty for $500 and for $1,500 into the court. Of course, Judge Byrne could not condemn him because on 18 February 1992 he did not have the consent of Jan Wade. He was doomed to be on a jury but was not jury and therefore he plead guilty and that is where the $1,500 that he retain was not retained; it was in his own pocket. You can read this because I did not ever have - the term of settlement. I always complain and write to De Marchi, "Give me the term of settlement, give me a bill of costs". He never give to me nothing. In the year 2000 in January the Law Institute gave me this one. On page 41 the first page, it says - the trust statement:

Received from S.I.O. Payment of claim in full 15,000.00

1984

Aug 13 To Mr Gradara 13,500.00

Very clever. Very, very clever, Mr De Marchi. De Marchi retained for his costs $1,500. Did he take it off this money on 22 November 1984? You can read here on page 46 and he says there the cost of De Marchi was asking to the Legal Aid Commission. It was $3,385, but you read on the second line it say, "22.11.84 taken from trust 1,500". What he want more, he want more the balance of $1,885.50 that he was thinking that he would get that on the next case.

So what he write, so Legal Aid constantly ask to De Marchi they want the money. So on page 8 on appeal book you say here De Marchi write down to the Legal Aid Commission on line 5 and say:

We had retained $1,500 on trust, but we seem to be short on the amount that our client may be required to contribute.

Furthermore, he says:

As we are handling another case for Mr T. Gradara, we would undertake to keep a Legal Aid Commission's lien on this new file to satisfy the balance of the bill of costs attached herein when funds become available.

You notice one point. The date here is 5 October 1984. On three weeks later he take the money out from the trustee and put his own pocket on 22 November 1984. Of course, the Legal Aid was - they show to me a packet of this kind of letter that has been give to him. Janice Woods, the solicitor investigating for Director of Legal Aid, write to Dino De Marchi and she said on page 9:

this file has been referred to me for investigation of an apparent breach by you of the terms and conditions of assignment.

It appears that you failed to keep out of money received by you on the assisted persons behalf sufficient to cover costs of the assigned matter and you have by your action prejudiced the Commission's rights to recover its costs by way of contribution.

Then De Marchi was so clever that he ask me the title, you know, to carry on for the next case while in reality he tried to engage my title to repay the Legal Aid. Robert Cornall, Legal Aid Director, knew because he was the president of the - - -

HAYNE J: Law Institute.

MR GRADARA: Law Institute there. He understood all this case and he understand - the Legal Aid send me a letter to ask for pay but he cancel everything, Robert Cornall. As a matter of fact, I had an agreement on page 47 with Robert Cornall. He had to do to ask me the $3,066 for the first court. On line 5 you see the $3,066 has been not paid to Legal Aid and De Marchi never paid Legal Aid and Herbert Geer & Rundle, when they say it is to be returned to Legal Aid $1,500, are telling liar to all benches of the court. They want to make a fool of benches of the court. It says in line 10:

of criminal charges, even though those charges were not brought to finality by a prosecution).

He is referring to what has happened on 3 or 5 November 1983 before Judge Byrne that Judge Byrne was forced by the letter of Jan Wade on 18 February 1982 not to prosecute De Marchi, so the case was dismissed, the case was set aside and that is it. He proposed to me on line 19:

On receipt of that signed letter, I will arrange for the outstanding debt totalling $8,283.46 to be written off -

a very good and honest man -

and the caveat to be withdrawn from your certificate of title (and forward you a copy of the withdrawal of caveat form).

I sign this one and I say I will carry on by myself. I try to convey to you the truth in every court and I have quite a lot more to explain to you. In there, himself, he write there is no receipt that has been paid $1,500. That is on page 51 on line 12. He write down these things. So, while they got the courage that man down there to say it has been paid off, paid back the $1,500, of course judge does not go and investigate this matter.

If I tell the truth to you and you find they have commit perjury by this affidavit on page 22, that this affidavit has been retained $3,500 for De Marchi costs, but on the second page, at 23, straight away one of the solicitor of them they are conscious - in his own heart he is conscious that he did not put these things and he say from 6 to 15 are true, but from 1 to 5 he just omit it because she knew the other solicitor was wrong. Yes, they take all the pages of the Full Court and De Marchi lying straight down. Nobody can read, so they make a more fool - the Full Benches of the court more fool all the judges, and they are always think to go away right, think by putting false affidavit, perjury affidavit, to win against the case. Today I got a possibility to show what it is because this has never been given to me from De Marchi. It has been given to me from Law Institute.

In here I want to say another things. They not only put false affidavit in but also they take the cheque which prove that the cheque has never been write with a biro; it was write with a fountain pen.

HAYNE J: We understand, Mr Gradara. Your time is up.

MR GRADARA: I dismiss.

HAYNE J: Your time has finished.

MR GRADARA: I am very sorry.

HAYNE J: Thank you, Mr Gradara.

The complaints which the applicant makes stem from what he considers to be the wrongdoing of his former solicitor. That question has been examined in several proceedings instituted by the applicant. The present application is not made in any of those proceedings but concerns entirely separate questions about the operation of the Bankruptcy Act 1966 (Cth) in relation to a judgment debt owed by the applicant for costs. The decision of the Full Court of the Federal Court on that question is not attended by doubt. Special leave is refused.

MR GRADARA: Your Honour - - -

HAYNE J: Just a moment, Mr Gradara.

MR GRADARA: Excuse me please, your Honour.

HAYNE J: Just a moment, Mr Gradara.

MR GRADARA: I have not mentioned these things in the Full Court. I write down - - -

HAYNE J: Mr Gradara, be quiet, sit down now. Yes, Mr Nolan.

MR NOLAN: Your Honour, the respondent seeks costs. I would revisit my earlier application and ask that they be costs in the petition.

HAYNE J: We have been round the loop before, have we not, Mr Nolan?

MR NOLAN: I was not sure, your Honour, whether the order on the last occasion was made having regard to any special circumstances relating to that case and issues put in the matter.

HAYNE J: Reference was made to the provisions of the statute which, at least on one view about which we express no conclusion, would seem to entitle you to your costs. If they do not, at least I speak for myself, it would seem to me that you should not have your order. If they do entitle you to them, you have them.

CALLINAN J: I agree with Justice Hayne.

MR NOLAN: Thank you, your Honours.

HAYNE J: Special leave is refused. Call the next application.

MR GRADARA: Why you so hard - - -

HAYNE J: You may go, Mr Gradara.

MR GRADARA: Excuse me, your Honour. Last time - - -

HAYNE J: Mr Gradara, I am not speaking to you. You may leave the Court.

MR GRADARA: You did not let me express how I can put things in there if is not being let me allowed to talk.

HAYNE J: No, you may leave the Court, Mr Gradara, please. Would you leave the Courtroom.

MR GRADARA: I went down at 6 o'clock out because I say "I don't live here unless you convey - - -

CALLINAN J: Mr Gradara, you have been told to be silent. Now, be silent and leave the Court.

HAYNE J: Now.

MR GRADARA: I am leaving the Court, your Honour, if you listen to me.

CALLINAN J: No, you will leave the Court now or we will ask somebody to remove you from the Court. Leave the Court.

MR GRADARA: The same things happen last time.

CALLINAN J: Leave the Court.

MR GRADARA: The same things happen to Judge Merkel because he does not want to believe it, that that affidavit is false. Any time that I make a subpoena - - -

HAYNE J: I will ask that you are removed, Mr Gradara.

MR GRADARA: I do not care. Any time that I make a subpoena, a new judge does not want to - - -

HAYNE J: Perhaps if you would be good enough to assist Mr Gradara to leave the Courtroom, please.

MR GRADARA JUNIOR: Dino De Marchi gave my father $10,000.

CALLINAN J: Would you both leave the Court, please.

HAYNE J: While Mr Gradara is removed, we will adjourn the Court.

MR GRADARA: I do not care. Why you do not want to listen the truth?

HAYNE J: Adjourn the Court please, Mr Crier.

AT 3.33 PM THE MATTER WAS CONCLUDED