Wilson & Ors v Official Trustee in Bankruptcy & Ors S47/2000 [2000] HCATrans 721 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S47 of 2000

B e t w e e n -

ERNEST ARTHUR WILSON, PATRICIA LORRAINE WILLIAMS and PATRICIA LORRAINE WILLIAMS (in her capacity as executrix of the will of ERNEST ARTHUR WILSON (deceased))

Applicants

and

OFFICIAL TRUSTEE IN BANKRUPTCY

First Respondent

WELONA PTY LTD

Second Respondent

Office of the Registry

Sydney No S49 of 2000

B e t w e e n -

ERNEST ARTHUR WILSON, PATRICIA LORRAINE WILLIAMS and PATRICIA LORRAINE WILLIAMS (in her capacity as executrix of the will of ERNEST ARTHUR WILSON (deceased))

Applicants

and

OFFICIAL TRUSTEE IN BANKRUPTCY

First Respondent

WELONA PTY LTD

Second Respondent

Office of the Registry

Sydney No S76 of 2000

B e t w e e n -

ERNEST ARTHUR WILSON, PATRICIA LORRAINE WILLIAMS and PATRICIA LORRAINE WILLIAMS (in her capacity as executrix of the will of ERNEST ARTHUR WILSON (deceased))

Applicants

and

OFFICIAL TRUSTEE IN BANKRUPTCY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Applications for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT 2.03 PM

Copyright in the High Court of Australia

MS P.L. WILLIAMS appeared in person.

MR M.J. LEEMING: May it please the Court, I appear for the Official Trustee in all three proceedings and the Commonwealth of Australia in proceeding 76. (instructed by Australian Government Solicitor)

MR D.B. McGOVERN: If the Court pleases, I appear for Welona Pty Ltd in matters No S47 and S48. (instructed by C.E. Cranney & Co)

GLEESON CJ: Yes, Ms Williams.

MS WILLIAMS: Thank you, your Honour. Your Honour, I am sorry that I am a self-litigant. It was not through choice and I only hope that you could understand my submissions. I am sorry about that. I also wish to add to the record - if I could just address the section 47, 49 application, your Honour, which is the one of Justices Marshall, Finn and Goldberg at 33.

GLEESON CJ: There are two decisions of the Full Federal Court - - -

MS WILLIAMS: Yes, your Honour. The last one was Justice Beaumont's decision, which was the one at 33 and then there was the one of Justices Burchett, Weinberg and Hely and that was of Justice Branson's decision and I think that is at 37, I think you will find that one. It is just that within that one decision, your Honour, of Justices Marshall, Finn and Goldberg, his Honour refers to all these decisions so I thought by addressing that one I may be able to cover them all and cut a bit of time. Am I right, your Honour?

GLEESON CJ: Yes.

MS WILLIAMS: I have written notes to help me through. In each of these decisions, your Honours, the courts, for various reasons, have continually not addressed the matters raised in our applications, giving as a reason that we were wanting to re-agitate the findings of the Full Court on appeal from the judgment of Justice Sweeney. That was in 1994, your Honour.

At no time, before any of these courts, have we ever again been attempting to say that the proceedings before Justice Sweeney would have been different had - it was a matter of lost photographs, your Honour - lost photographs been available to us. That decision was based on the fact that the photographs were not available to us, but also not available to any other party.

I might add, your Honour, that the Full Court, although talking about photographs, did not find that the photographs were not relevant to the decision of Justice Sweeney, but only that the lost photographs found would not be relevant because - I am sorry, that was Mr Wilson - could not put a date on the photographs. Therefore, they did not find that they would be relevant to the photographs that were relevant to the hearing.

GLEESON CJ: Yes. I thought, actually, the reason they gave went a little bit beyond that. I thought they made some comment about his reliability.

MS WILLIAMS: That was, your Honour, because of something that happened in the decision. There was an affidavit that went in to the court, of which photographs were referred to, but the solicitor, when he did the affidavit, the photographs were still with the Official Trustee in Bankruptcy and there was a reference to them, but shortly after that affidavit in 1991 they went missing.

We did not actually go before Justice Sweeney until 1992 and it was a question that sort of came out of the blue to Dick, who I must admit, your Honour, was a terrible - he just used to get lost - came out of the blue to Dick about these photographs and he got confused about what photographs they were talking about. There were other photographs belonging to the police in the court, although they never came to light.

He believed, and he sort of said they were dated 1979 and then, on appeal, we said that there was an error in the affidavit because it had said that they were dated in 1983 when Dick was not in the hotel. We were out of the hotel from about early 91 till mid-1983 and he claimed he had taken them at a time he was not there. He was living in Grafton. We made the mistake of saying a typographical error. The court believed because not only because he had said when he was questioned that we thought he had actually taken them in September 1979 that it was not a typographical error because not only was the date wrong but so was the month. But it all boiled down to the fact, your Honour, that they had no faith because of these differences in the date.

But, in talking of the photographs, your Honour, it was not that their Honours considered the photographs that went before Justice Sweeney. It was only the photographs that had been lost they considered. They were not considering any other thing and that those photographs would not have been relative to that decision.

That decision was based on the fact the photographs were not available to us but not available to any other party. We were fully aware that this has been answered by the Full Court in 1994 and we could not come back on it. It is the evidence that went before Justice Sweeney that was fraudulent with the sole intention of misleading his Honour and succeeding, which we have in vain been trying to have the courts address.

GLEESON CJ: Now, just before we go any further, you have an application to have your name substituted for Mr Wilson?

MS WILLIAMS: Yes, your Honour.

GLEESON CJ: Is that opposed?

MR LEEMING: No, your Honour.

MS WILLIAMS: Yes, he died in between - - -

GLEESON CJ: You have that order.

MS WILLIAMS: Thank you, your Honour. Going to Stead v Government Insurance Commission [1986] HCA 54; 67 ALR 21 at 23 line 42, your Honour, which I have put in documents before you as document G, where his Honour has said:

The general principle applicable in the present circumstances-

and he refers to Jones v National Coal Board and says:

"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge....No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."

His Honour went on to say:

That general principle is, however, subject to an important qualification.....being: Would further information possibly have made any difference?

We are saying, yes, it would have made a difference, your Honour. In our matter, your Honours, it could not fail to make a difference. It goes to the very heart of his Honour's decision and that was on the condition of the hotel at the start of the lease.

As you know, your Honours, in the summary of argument, the evidence which we put to the courts was found through the documentation obtained from files of the Official Trustee in Bankruptcy, and that was through our local member of Parliament, Mr Ian Causley, in 1996 and it was under freedom of information.

Through our investigations, with one thing leading to another - it was like Sherlock Holmes, your Honour - they revealed that the photographs were not lost by the trustee, which was how it was put to the Full Court, and that they had been included in the trustee's documentation as the creditors to be placed before the court. The further inclusion of extra photographs, not present on the proof of debt, and doctored so as to lay claim to the lost photographs, show that it was not a case of accidentally losing the photographs as claimed.

It has been very difficult, your Honour, to show that a trustee has not been born under an angel's wing because he does not seem to want to be accused of anything.

It was further found that the freedom of information documents and later correspondence from the solicitor that the trustee was well aware that the good order of the hotel at the start of lease testified to by the creditor and his witness and believed by Justice Sweeney were false.

His Honour relied completely on the evidence of Mr Bell, who was their witness, and on Mr Bowen from Welona. I might add that this was not the Trustee's stand which led us to the court, nor in the years that followed when we attempted to have these matters investigated and their stand has always been the condition of the hotel in 1979/80 when the bankrupts executed the lease was not relevant to the creditor's claim.

So the only reason this was not our application on appeal, your Honour, the original appeal before 1994, was the knowingly false information given by the Trustee and solicitor in relation to how the photographs were claimed to be lost, leading to the wrong consideration by the Full Court.

If the Appeal Court in 1994 could have been shown that the Official Trustee was aware that the evidence being given by the creditor, and believed by Justice Sweeney, as to the hotel's good condition pre-lease, was known to be false and the interdepartmental correspondence relating to the hotel's condition was kept from the court by the Trustee, would the court have dismissed the appeal as being unlikely to make a difference?

We were saying that those photographs went before Justice Sweeney as fraudulent photographs, your Honour. It is a different argument to what went to the Full Court. As I have said, the Full Court only looked at lost photographs. If available, not available to anybody else, would they have been relevant? We are saying that the lost photographs were never lost, that a selection of these were given to the creditor to be used by the creditor as his own, went into the court, came out of the evidence of the Trustee and the creditor referred to them as his own.

In Commonwealth Bank v Quade, your Honour, at 489 his Honour says, meaning another of Justice Dixon:

As the above quotation makes plain, the general rule formulated by Dixon CJ is directed to the ordinary case where all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after the trial. It is not directed to the case where the trial itself has miscarried "through misdirection, misreception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud.

I was going to go over the facts, your Honour, but I am sure you know, so I will skip that.

The Full Court, in giving support to their findings, that is the Full Court in Justice Beaumont's decision, quote from the decision of Justices Burchett, Weinberg and Hely, where Justice Hely has said:

The contention that a different judgment would have been pronounced had the evidence of the photographs been available before Sweeney J -

that was not our contention at all, your Honour -

invites a collateral attack on the decision of the Full Court. It is not open to the appellants now to contend that the outcome of the proceedings before Sweeney J would have been different had the photographs been available -

and again -

because that contention was put by the appellants to the Full Court, and rejected.

But it was not. This is a completely different thing -

Unless the appellants can make good that position then there is no foundation for any claim to compensation against the Official Trustee, however that claim is expressed, and whatever other difficulties may lie in their path.

Justice Hely goes on to say and refers to Sea Culture International Pty Ltd [1991] FCA 523; (1991) 32 FCR 275 at 279:

An attempt to litigate in the court a dispute which has earlier been resolved in other litigation in this or another court may, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

In Sea Culture, though, his Honour Justice French followed that by saying:

There is in my opinion another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts -

His Honour Justice Hely also cited Hunter v Chief Constable and has said:

the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.

It has not. This is a different question, your Honour, completely different and the Lord Halsbury in Reichel goes on to say:

I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

In Devries and Another v Australian National Railways, your Honour, his Honour says:

An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong.

But his Honour could not possibly have done it, your Honour, because his Honour has not looked at the fact. He is looking at something completely different. Justice Hely, on behalf of the Full Court, could not give a considered judgment on Justice Branson's decision for he did not understand what the accusations were to be investigated under sections 178 and 179 of the Bankruptcy Act.

The Full Court also makes reference to Justice Beaumont's decision, who also says:

In my opinion the present notice of motion is an abuse of the process of the Court. It is, in form and in substance, an attempt to agitate the same matters that were dealt with by the Full Court in 1994.

It was not, your Honour.

In those circumstances, the Court has no alternative other than to order that the notice of motion be dismissed. I do so order.

At no time in the years since the fraud has been discovered, before any court or the three years which we waited while the Commonwealth was said to investigate these matters, have we again tried to make the issue of the photographs not being available to us as decided by the Full Court in 1994. Justice Branson in her decision at 14 of the application book says:

It is not disputed by the respondents that the Inspector-General in Bankruptcy has not made any inquiry or investigation of the kind referred to in the claim.

That is true, your Honour, but it claimed through the Minister to have done so and through the Prime Minister, I might add.

The Full Court have, themselves, only looked at the facts that went before the Appeal Court in 1994 in their decision and have themselves not addressed the matters which we had been attempting to put before the court and, in doing so, could not consider if the trial judge was right or wrong.

The Full Court has said that Justice Beaumont read my affidavit and submissions and gave me the opportunity to respond to his concerns that we were re-litigating issues which had already been heard. That was the only point his Honour would discuss and, at no time attempted to address the fabricated and false evidence which we were saying went before Justice Sweeney and that went to the decision his Honour made concerning the condition of the hotel at relevant, various times, although his Honour was aware that this was the issue.

At document 2, which I have put which is part of the transcript, your Honour:

"What you are now seeking to do -

his Honour said to me -

is to attack Justice Sweeney's decision.

So I said:

On the fact, only because of what he had before him, your Honour. The information that he had, he acted on but the information he had was false. Not only in the sense of photographs but testimony.

So your seeking to challenge Sweeney J's judgment or set aside more precisely on the basis that his Honour acted on false evidence and that it was in effect false.

But that was the last his Honour addressed that, your Honour. From then on he just went back into the re-litigating, re-agitating issues that had been looked at before. The Full Court has referred to the precedent in Décor Corporation in determining whether leave to be appeal should be granted and says:

Those principles, in general terms, are that leave should not be granted unless two tests are satisfied. The first is that in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal. The second involves asking whether substantial injustice would result if leave were refused, supposing the decision could be wrong.

But the Full Court, your Honour, could not apply this principle until and unless they considered what were the real issues behind our application before Justice Beaumont and were those issues addressed and they were not. In Re Mobasa Pty Ltd:

A clear statement of the facts found, and the reasons for the decision, establishes that the evidence has been considered and the arguments which have been advanced have been understood.

It was not, your Honour, and it then goes on to say in Carlson v King:

It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This included not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent not only upon magistrates....and District Courts, but also upon this Court from which an appeal lies to the High Court and the Privy Council.

And this has not happened, your Honour. The evidence has not been addressed, relying instead on a decision which, in fact, had no relation to the matters being put to the court for the consideration.

The other argument, your Honour, was that we had a witness that went before Justice Beaumont, Mr Farthing. Mr Farthing was a solicitor but had also for 20 years been a building inspector. At the court before Justice Beaumont we wanted to have Mr Farthing heard. I had had Mr Farthing's affidavit to my affidavit, which I crave leave to address, and the Full Court has said that Justice Beaumont has not considered hearing Mr Farthing's evidence because "its existence and potential relevance was not clearly placed before his Honour" and "was not adverted to orally". It said that Justice Beaumont was misled in respect of the material placed before his Honour and the submissions made. His Honour said:

It was not articulated to his Honour that what was sought to be led and be relied upon was the fact that Mr Farthing had inspected the hotel in 1984 and was able to express an opinion as to the state of the hotel at the time the applicants entered into occupation.

And then it goes on:

A careful reading of the transcript shows that his Honour had not been made aware of the nature of Mr Farthing's evidence and had assumed that the issues before him as to what was relied upon by the applicants as fresh evidence was set out in the body of Ms Williams' affidavit and her written outline of submissions. That was not the position.

And Justice Beaumont had the opportunity, your Honour, to say that these were the reasons he did not wish to hear from Mr Farthing prior to his judgment. He did not. I had informed his Honour that Dick had come close to a nervous breakdown. I thought he was going to jump the counter. He had been branded a liar. He had had to live with this liar - this liar thing had been thrown up to him by the Commonwealth, everything. Everyone had accused him a liar. His Honour told me to resume my seat and then he asked Dick, "Is there anything you wish to say?".

When Mr Farthing was referred to by Dick, his Honour replied, "I am not a Royal Commission". He said, "I can understand why you are upset". And he said, "You have a very serious dispute but I cannot deal with it". And Dick informed his Honour at that moment in time, your Honour, that Mr Farthing had seen the hotel prior to us vacating the hotel; he was a building inspector; that Mr Farthing had informed Mr Cruickshanks about the condition of the hotel, Mr Cruickshanks being the Deputy Official Receiver, and that the court should hear Mr Farthing. His Honour replied:

Well, obviously I would if this were - if you could just hear me for a minute. If I were here in 1992, before Sweeney J, obviously I would hear all of these things but there's a limit - - -

Dick told his Honour we did not know about Mr Farthing, he had only come forward since. He said:

But you have had two Full Courts, you have had two trial judges, we cannot provide any more.

None of these courts, your Honour, or the trial - except for - were all looking at different issues, or not looking at the issues at all. Justice Beaumont was not going to consider that this witness might be new and further evidence and he did not consider that the evidence I was trying to put before him was new and further evidence and Dick again referred to Mr Farthing and his Honour replied:

I can only deal with matters properly before this court. This matter is not properly before the court. That is the limit of my authority.

Mr Farthing's affidavit dated 26 October 1998, which had been sworn for the hearing before Justice Branson, was attached to my affidavit before Justice Beaumont. I stated I wished to crave leave to Mr Farthing's affidavit. His Honour said he had read my affidavit. Mr Farthing was in court willing to give evidence on the affidavit and his expert knowledge of the hotel's condition. I believed his evidence was going to be self-evidentiary, as was his affidavit. I did not believe I was required to go further than what was before the court until I was to address it in my submission when I intended to refer to my affidavit and exhibits.

Justice Beaumont had before him Mr Farthing's 1998 affidavit and Dick advising his Honour of Mr Farthing's expertise when he had seen the hotel. Justice Beaumont refused any further submissions from me and my opportunity and intention to address Mr Farthing's affidavit was taken from me. His Honour did not hear Mr Farthing for the reasons he gave and not as put by the Full Court.

For the hearing before the Full Court Mr Farthing swore a further affidavit, your Honour, on 23 November 1999 for the purpose of those proceedings, to which he again attached his affidavit sworn 26 October. Being present in the court before Justice Beaumont and being a person who was admitted as a solicitor to the Supreme Court in 1975, Mr Farthing was qualified to give his opinion on the way the proceedings went. Mr Farthing states that as an observer he believed Justice Beaumont was reluctant to hear from us as self-litigants and that I was rushed and bustled. He also said he did not believe that his Honour could have taken in my affidavit in the time he took to read it.

Mr Farthing again in this affidavit gave his qualifications, his expertise in making the assessment of the hotel condition at the start of the lease and that the hotel had been in a deplorable condition. It must be remembered, your Honour, that due to his belief that the hotel was quite good at the start of the lease, Justice Sweeney allowed all the proof of the debt, and the court has also said:

A critical issue in the proceedings before Sweeney J was the state of repair of the hotel at the commencement of the lease in 1980.

Mr Farthing also swore that Dick was not aware of his previous qualifications as a building inspector as he had only met him as a solicitor friend of our solicitor and it was in that capacity that Dick believed Mr Farthing was looking over the hotel at the end of the lease.

GLEESON CJ: Thank you very much.

MS WILLIAMS: Thank you, your Honour. I am nearly at the end. I just want to make the point, your Honour, that the court has made a conclusion about Mr Farthing, that Mr Bell was in a much better position to have a look at the hotel than Mr Farthing, yet Mr Farthing had seen the hotel. Mr Bell, the witness that was used before Justice Sweeney, had never seen the hotel for five years.

GLEESON CJ: Thank you.

MS WILLIAMS: I am sure you know that from my submissions anyway, your Honour.

GLEESON CJ: Thank you, Ms Williams.

We have read and listened to the written and oral arguments advanced by the applicant, Ms Williams, but despite those arguments we are unable to see or conclude that there are sufficient prospects of success in an appeal to warrant a grant of the special leave that she seeks. The applications are dismissed.

MR LEEMING: I seek an order for costs.

GLEESON CJ: Where are your submissions?

MR LEEMING: Commencing at page 72 of the application book.

GLEESON CJ: Thank you. I just want to see the part dealing with this. Page 76?

MR LEEMING: Page 76, yes.

GLEESON CJ: Have you made the same submission, Mr McGovern?

MR McGOVERN: Yes, I do, your Honour.

GLEESON CJ: The applicant must pay the respondents' costs of the application.

MS WILLIAMS: I might add, your Honour, that they have just taken everything from me with that, I am afraid. I am sorry, but it just - we have had nothing to lose any more.

GLEESON CJ: Thank you.

MS WILLIAMS: Thank you, your Honour.

AT 2.26 PM THE MATTER WAS CONCLUDED