Chudziak & Anor v Cumming P50/1999 [2000] HCATrans 640 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P50 of 1999

B e t w e e n -

BOBBY CHUDZIAK and MAUDE CHUDZIAK

Applicants

and

RICHARD CHARLES CUMMING

Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 3.15 PM

Copyright in the High Court of Australia

GUMMOW J: Officer, will you call outside the Court Richard Charles Cumming. Yes, Mr Chudziak. You appear for yourself, I take it?

MR B. CHUDZIAK: Yes, your Honour.

GUMMOW J: You seek leave to appear also for your wife, is that so?

MR CHUDZIAK: That is the case, yes.

GUMMOW J: Very well.

COURT OFFICER: No response, your Honour.

GUMMOW J: Thank you. The Court holds a certificate from the Deputy Registrar that the respondent to this application, Mr Richard Cumming, has not entered an appearance in this matter. The applicant has filed an affidavit of service, deposing to the service upon Mr Cumming on 30 September 1999 of the application for special leave and accompanying documents, summary of argument and draft notice of appeal. Yes, Mr Chudziak.

MR CHUDZIAK: Your Honour, I think the best place that we could start, so that both of your Worships have an idea of what is happening - - -

GUMMOW J: We are a bit higher than magistrates.

MR CHUDZIAK: I am sorry, your Honour. Page 60 of the application book Now, that is a summary of when the lease became effective, it explains when the - - -

GUMMOW J: Is not this case all over $750 arrears of rent?

MR CHUDZIAK: No, your Honour, that is not the case at all.

GUMMOW J: Well, was that not the amount recovered?

MR CHUDZIAK: That is true, but, your Honour, the trial judge - - -

GUMMOW J: What do you have to show to us is where the Court of Appeal of Western Australia, in what seems to be a detailed judgment by Justice Kennedy, found against the appeal. We are not here to retry the case; we are here to see if there is made out a case of relevant error on the part of the intervening appellate court.

MR CHUDZIAK: Your Honour, both the judges in the Supreme Court, who have written transcripts here, have backed up the trial judge in that there was a breach of lease made out with the spraying of the capeweed. They state that the plaintiff had no knowledge that the capeweed had been sprayed when rent was accepted in December, but that is not the case. The plaintiff and I had discussions about this and there was a set of judges' papers prepared that were to go before the trial judge and these papers were altered by the other side and they also failed to put in the interrogatories, which were a sworn affidavit form, and in those papers there were admissions of knowledge of the spraying of the capeweed. That capeweed was sprayed in August of that year. The rent was paid. The judges in the Supreme Court said that the rent was paid on 14 December, and that is not the case at all. My cheque book was with my lawyers and I never had it in front of me at the trial. In actual fact, Mr Cumming was paid the rent on 3 December of that year and he and Mr Tuckett stated that they came to my house - - -

GUMMOW J: Now, is there a particular passage in the Full Court's judgment that you dispute? If so, you must take us to it.

MR CHUDZIAK: Your Honour, I am on page 47, about halfway down.

GUMMOW J: Yes.

MR CHUDZIAK:

As to the alternative claim, on 14th December 1985, the respondent had accepted one month's rent without requiring payment of any further amount, because the notice which was given on that day purported to terminate the lease on the expiration of 30 days. That rent was accepted after the half yearly rental of $1,500.00 had fallen due.

Mr Cumming asked for $250. He was paid that. He promised to return for the remainder, as he had done earlier in the year, but he did not come back. Your Honours, I did not pay the rent on 14 December. My cheque book records show that it was made on the 3rd.

GUMMOW J: Now, when did this matter come before the Full Court, 1990, did it?

MR CHUDZIAK: In April of 1990.

GUMMOW J: Well, what is the reason for the delay?

MR CHUDZIAK: I instructed my lawyers to take this matter to this Court, and they refused.

GUMMOW J: Yes, it is now 1999 when the appeals were filed.

MR CHUDZIAK: I have been to countless lawyers in the city and they have told me to go to the police. I would say that I have been to the police no less than seven to eight times and I have been told - - -

GUMMOW J: Yes, but the police have no effect on court orders. They cannot set aside an order of the Western Australia courts.

MR CHUDZIAK: I know that, your Honour, but the lawyers told me that I should go to the police because of the perjury and the extortion and they said that the police were in a position where they could do something about that. I had a letter from the Attorney-General, basically which stated the same thing, and I went to the police and they told me that the problems were created in the court and it was for the court to direct the resolution of them.

Your Honours, my file has been continually with lawyers ever since 1990 and it came into my possession approximately, I think it was in April or May of 1999. I took documentation to Legal Aid, your Honour, and a lawyer there told me that - I had no idea what extortion was, but he explained to me that that would be a starting point. He went along with the perjury and he told me to go to the police, which I did, and again I got the same answer. Your Honours, we have paid a lot of money to lawyers in Perth, who said that they did promise that they would do this chore for us, but then they reneged when they saw the documentation.

Your Honours, what is of a concern to me, picking up on your earlier comment, there was an exhibit that was not included in the appeal book. Now, this exhibit was a quantum exhibit; it was written by a professional, a man who was a stock agent, he was the manager at Boyup Brook, and he wanted to show the court the document which supported the trading of sheep. I did not lease this farm for the purpose of farming sheep. I was trading sheep and I was feed-lotting sheep for all the time that I was on that land and my claim was lowered by a witness called Peter Lauder, who is a chartered accountant in Bunbury, and he put forward figures on a normal farming operation with sheep, but that was not what the activities were on this land.

So, your Honours, what transpired is that when our appeal was formulated by another barrister, they did not contest in the Supreme Court that our claim in fact was in excess of $54,000. They could hardly do that because they did not have the exhibit to show the judges, and I think that the way in which my claim was lowered is totally unfair, considering that the lawyer told me to get a Kimberley Scott, who was a farmer that traded sheep. They said that we needed a person who solely traded sheep. They told us to go to Elders, and then my barrister dismissed the Elders manager, before he was due to go into court, but then in court he tendered the exhibit, which is MF12, and this is the exhibit that was missing when this issue went to the Supreme Court.

Your Honours, I am seriously of the belief, that the judges in the Full Court were deceived by the barrister and - - -

GUMMOW J: Well, you may be of that opinion, but - - -

MR CHUDZIAK: Well, your Honour, in order 63 of the Supreme Court Act at the rules of the Supreme Court - - -

GUMMOW J: Our question is simply whether the Full Court judgment discloses any general error of principle?

MR CHUDZIAK: Well, your Honour, there was no submissions put before them regarding the fraud.

GUMMOW J: Your complaint seems to rest with those between yourself and those who on your behalf were putting forward your case in the Western Australian Full Court. The judges can only react to what is laid before them.

MR CHUDZIAK: Your Honour, that is true, but what was put in front of the trial judge - and the plaintiff said himself that he had received rent for the period that he was awarded damages. Now, he had two other people in occupation of the land, he has gone to the court, he has now got another lot of rent, but it is on record, it is in the transcript, that he admitted that he had received rent for this period of time. Now, the questions were asked of the plaintiff in court and he admitted there was never a problem with the rent. He admitted that he consented to the trading of sheep, the feed-lotting of sheep, he admitted that he consented and that he had knowledge of the spraying of the capeweed.

The only thing, your Honours, that I can put before you is that, without the correct paperwork going before the courts - I do realise that is an issue aside of here - but, in any event, I think what it really means is that under the orders in the District Court Rules, and I think it is either 18 or 20, I think it is 18, the illegalities need to be proved, and I do not think it is totally fair that a person can openly lie to lawyers when he has already put people in occupation of the land, where he had no right to enter there.

Your Honours, I can only really add, I think, just to clarify, sections 80 and 81 of the Property Law Act was excluded from the lease on this property because the plaintiff had stated that he was going to subdivide the land and he needed access to have it surveyed. Now, the property was never, ever surveyed, it was never, ever followed up to be subdivided - and this was admitted in court - and he has gone onto the land for no reason at all. He has gone there, he has counted sheep, which he was not entitled to do so. He stated in court that that property could run 2,000 sheep in winter and I never had anywhere near that number of sheep there. He stated in court that he has sprayed the property himself with chemicals to control noxious weeds and that is exactly what I did when I sprayed the property with "Igran", which is a chemical for the control of capeweed, and that was advised by the Western Australia Department of Agriculture. But, in any event, the plaintiff was happy for me to re-clover and to put rye grass onto the property to boost the pasture, because that was going to add value to the property once my lease had expired.

Your Honours, I only had intention of a three-year lease there, I think the idea being that Mr Cumming was going to sell the property subdivided, and we did give him access in the clauses of the lease to come onto the land and to conduct his duties, whatever he needed to do there, but I think he overstepped the mark, your Honours, and he has caused lots and lots of disruption, harassment, which was uncalled for. I may add to you that it was he that told me the secret with a little property being over the road from the saleyard is not to have sheep there for a long time; it is to bring them in, make a margin and dispose of them quickly. So I followed exactly what he said and then he turned it around and went to the courts and said that I should not have been doing that.

Your Honours, the other thing too that is very annoying is that he stated in court that this property was one and a half miles from the Boyup Brook/Bridgetown Road, it is alongside that road and he has said this so that the court was deceived about the advantages of not having to truck sheep. It was possible, your Honours, to walk the sheep from the property, which would have been, I guess, the distance to the lawn over here at the esplanade from where we are here. So, I had a property which was of immense commercial value, I had invested a lot of money into feeders, I never, ever had any shearing plant on that property, and he said that I took it away, but I never had any there. When I left I took sheep away that were going to be chased into the bush and he then said that he came at a date after that and counted 900 sheep there, but there were not any there at all. Your Honours, I paid him rent on 3 December. At my next opportunity I purchased 76 wethers that were on the land. They went onto the land on 16 December, and these were the sheep that I took away when I returned from holidays in January of the next year.

Your Honours, I think that the response that I can possibly make in summary to you is that the judgments in the Supreme Court do follow what the judgment was from the court below and the construction of events are not in line with what actually happened in this dispute. Your Honours, I was almost tempted to ask for you people to make a decision on this matter without me attending, but I did believe it would be fairer for me to say something.

GUMMOW J: Yes, I think so.

MR CHUDZIAK: And also to give you an opportunity to ask me a question if you have any areas that are clouded.

GUMMOW J: Yes.

CALLINAN J: You seem to have set it out fully, I think, Mr Chudziak, in your written material.

MR CHUDZIAK: Your Honour, may I say to you that just within the strictness of the Rules of the High Court, I must thank your staff in Canberra because it has been exceedingly difficult for me, as you can imagine, having relied on legal people to do things correctly, but what I am - I will just get the correct page if you will just bear with me. I am on page 59. Your Honours, I do seek for this Court to consider applying rule 3(2), where that can then be used to dispense with the requirements of Order 69A. I have given you a photocopy of that particular rule.

GUMMOW J: Yes, we are familiar with that.

MR CHUDZIAK: You have that somewhere there, I am sure. I think that with legal advice that I have had, your Honours, the case here is a very, very dangerous matter for lawyers to become involved in because there are so many people implicated here.

CALLINAN J: When did you file your application - earlier this year or late last year?

MR CHUDZIAK: Your Honour, the first paperwork that ever went into the Registry was in the - - -

GUMMOW J: September last year, was it not?

MR CHUDZIAK: It was in September of last year, but what happened, I think, Elisa Harris rang me and suggested that I make sure that I get it into the exact format that the rules - I am just trying to get to the first document.

CALLINAN J: That is near enough for my purposes.

MR CHUDZIAK: Your Honour, I can tell you exactly, I have got it right here. The amended application was made - no, I do not have the original, but, in any event, I will say that it was 29 September last year. That was the very first paperwork.

CALLINAN J: Thank you.

MR CHUDZIAK: Your Honour, I do apologise bringing you such a scandal. I do not know whether I can actually ask you personally what I can do from this point to expedite this matter. I am willing to fly to Canberra to an appeal if your Honours feel that is a way of resolving this matter properly and quickly, because it has caused huge problems for my family, my wife especially, my in-laws who are elderly now, and I think that they have most probably suffered a lot more than what we have.

Your Honours, the only other thing I would like to ask: is it a function of this particular hearing for this Court to direct paperwork for police to commence an investigation or does that have to be done elsewhere?

CALLINAN J: Certainly not.

MR CHUDZIAK: Here?

CALLINAN J: Certainly not.

GUMMOW J: Is there anything more you wish to add?

MR CHUDZIAK: No, your Honour. I think the summary of argument which is very exact and accurate - - -

GUMMOW J: Yes, thank you.

This application for special leave was filed out of time. The District Court of Western Australia had to decide whether there had been breaches of a lease of rural land entitling the retaking of possession and whether, in any event, the applicant should be taken to have surrendered the lease. That decision very much depended upon the resolution of factual matters. To these both the District Court in 1989 and the Full Court of the Supreme Court of Western Australia in 1990 gave careful consideration.

We have listened to what Mr Chudziak has to say in the matter and read the written materials. We have concluded that no error of principle in the way in which the issues identified were dealt with or otherwise can be demonstrated. To revisit the case after such a long period of time would be oppressive to the other party and, in any event, difficult from the point of view of evidentiary matters.

In any event, as we have indicated, there will be no reasonable prospects of success on any appeal to this Court from the decision of the Supreme Court of Western Australia and its Full Court in 1990. Therefore, the necessary extension of time should be refused. This is on the footing that, in any event, even if the extension were granted, there is no reasonable prospects of success in a consequent appeal. Accordingly, the necessary extension of time is refused.

AT 3.39 PM THE MATTER WAS CONCLUDED