von Schulz v Attorney-General for the State of Queensland the Honourable Mr Matt Foley B74/2000 [2001] HCATrans 321 (27 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 2000

B e t w e e n -

KARL and THERESIA MARTHA CITRA VON SCHULZ

Applicants

and

VALENTINO and GERARDA MORRIELLO

First Respondent

GRANT CURRIE AND CURE ALL PEST CONTROL PTY LTD

Second Respondent

Office of the Registry

Brisbane No B74 of 2000

B e t w e e n -

KARL and THERESIA MARTHA CITRA VON SCHULZ

Applicants

and

THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND THE HONOURABLE MR MATT FOLEY

Respondent

Applications for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 11.48 AM

Copyright in the High Court of Australia

__________________

MR K. VON SCHULZ appeared in person. Your Honours, I am very ill, can I sit down while I am talking, please?

KIRBY J: Well, if you are not able to address the Court comfortably perhaps you might bend the microphone a little so that you can be heard. I do not want to miss what you have to say.

MR VON SCHULZ: Thank you.

KIRBY J: You appear on your own behalf?

MR VON SCHULZ: Yes, your Honour.

KIRBY J: And also your wife is present?

MR VON SCHULZ: Yes.

KIRBY J: And she is a party applicant. Are you going to speak for her or are you each going to speak for half of the time?

MR VON SCHULZ: Her English is not so good so I can speak for her.

KIRBY J: Right. Are you happy with that, Mrs von Schulz?

MRS VON SCHULZ: Yes, your Honour.

KIRBY J: Very well. You can speak for both applicants. Now, who appears for the respondents?

MR M.McP. STEWART, SC: If the Court pleases, I appear for both the first respondents and the second respondents. (instructed by the Gadens Lawyers and Minter Ellison Lawyers)

KIRBY J: Yes, thank you. In the second matter, the Attorney-General has filed a written document but does not seek to appear to give oral submissions. Very well. What do you have to say? Is it convenient to take both of these matters together, Mr von Schulz?

MR VON SCHULZ: Yes, I will refer when I finish with the first matter.

KIRBY J: Yes, very well.

MR VON SCHULZ: I will refer to the Attorney-General. I have prepared - I have - we, the appellants, provide four copies of material we rely on in the hearing by this honourable Court on 27th 2001. This is a very special case.

Respectfully we may refer the hon High Court of Australia Justices to our joint affidavit 8 February 1999, find attached and particular our joint affidavit evidence 1 May 2001, and exhibits "KTVS -

32 pages -

We applicants of 3/379 Cornwall St, Greenslopes, 4120, make oath and say:

1) We the applicants/appellants submit to hon High Court the true criminal issue of the deadly indisputable "arsenic trioxide" poisoning by the respondents upon us, substantiated . . . facts from the original medical reports in the hon High Court -

page 106 and 123. There is a joint affidavit from 8 February 1999. There is the authority of the honourable doctors - yes, 106. There is another number, I am sorry, your Honours, in the centre. There is a number 59 and would you please disregard and go by the number 106 on the right side on the top -

file with Senior Registrar Ms Elisa Harris and Deputy Registrar Mr Ben Wickham, according to High Court Rules Order 69AE we where not allowed evidence of our "arsenic trioxide" poisoning issue, into the application book to include the evidence joint affidavit 8 February 1999, ten blood and urine pathology tests, show very high danger arsenic substances in blood, urine and our body system - authority of our "arsenic trioxide" poisoning upon us, medical experts and academics, professor, toxicologists, physician and doctors, natural therapy et-cetera, special - - -

KIRBY J: Now, Mr von Schulz, I understand this and I have read the papers but the problem from your point of view in this Court is that we are not a trial court. We are simply looking at whether or not you have shown that in the courts appealed from, relevantly the Court of Appeal of Queensland, they made an error which requires us, or authorises us in the High Court, to disturb their order, and they came to the conclusion that you had compromised your action, you had settled it at trial, and that your various attempts since you did that to, as it were, relaunch the matter and get back to the merits were without legal merit and that you could not, as it were, go back on your settlement of the case. So that is the issue we have to address our minds to, not what happened in the distant past, but whether or not you settled the case and whether the Court of Appeal of Queensland was right in holding that you could not, in a sense, go behind your settlement.

MR VON SCHULZ: Your Honour - - -

KIRBY J: I do not want to interrupt you because you have probably given a lot of thought to how you want to present the case - - -

MR VON SCHULZ: That is right.

KIRBY J: - - - but unless you deal with that issue, you will not help the actual application before this Court.

MR VON SCHULZ: Your Honour, that - what you just said, this compromise never occurred. There is no compromise. We had a writ of summons of $3 million for the injury, pain and suffering and then they organised by conspiracy - and we have evidence of this - earlier - 27 September we have an affidavit from the other party's solicitor. So they organised already to have their friend, Margaret Wilson QC - she is now a judge, yes - and that is - that is the whole problem with our case.

KIRBY J: Yes, but if you want to challenge the settlement, you cannot do so in the appeal process and that is what you are seeking to do in this case before us today, so that I have to try to get you to address your attention to where you say the Court of Appeal of Queensland went wrong, because unless you can show that, I am afraid we have not got the authority to allow you to have special leave to appeal to this Court.

MR VON SCHULZ: Your Honours, in the Court of Appeal all the documents, the evidence of the forged settlement - terms of settlement and the forged terms of mediator certificate was presented to the Court of Appeal. The Court of Appeal simply ignored all our evidence.... discriminated, put two policemen behind our back and neck. That was frightening. We were not allowed to present any documents whatsoever. They just covered up for Margaret Wilson before - - -

KIRBY J: Well, I do not think you should - - -

MR VON SCHULZ: That is the whole thing.

KIRBY J: - - - be allowed to say that. You have got to concentrate on what you say is their error. What is the error in the Court of Appeal decision? Have a look at pages 14 of the application book, 14 to 17. Now, where do you say the mistake has occurred in what Justice Davies said there?

MR VON SCHULZ: Your Honours, this was a trick they used on us. I had two doctor certificates. I had a heart attack and I did not - I could not appear in that court. They forced - they forced - the President himself brutally and recklessly got on and made a.....and ask us, because this was a criminal case we proceeded under the criminal case - under 322 and they just simply behind our back done this - refused our application.

KIRBY J: Well, it does not appear to have been behind your back. It appears to have been in open court. Justice Davies refers to the argument that was advanced in open court. On the face of things, it - there is a transcript of the proceedings and it appears to have been done in open court in an entirely regular way.

MR VON SCHULZ: Yes, but, like I said before - - -

KIRBY J: You see, you cannot have parties settling cases after they have gone through a mediator and then getting second thoughts about it and wanting, at least in the ordinary case, to reopen the whole thing and relitigate as if they had never settled it, otherwise we would never have cases settled in the courts.

MR VON SCHULZ: But, your Honours - - -

KIRBY J: Ninety per cent of cases - more than 90 per cent are settled and it would create chaos if parties did not hold to their settlements.

MR VON SCHULZ: This is not a.....This is a criminal case what they done against us. They poison us to death with arsenic. Here is their arsenic. Here is - we have it with us.

KIRBY J: Well, I understand that. I understand what you say about the arsenic, but you brought a case and you settled it.

MR VON SCHULZ: And then another thing is it - that was not accepted in the Court of Appeal that that was a forged signature on terms of settlement. What they say to us - what he said there, if your Honour read on, in Australia you do not need a signature on a contract, just a stamp of a firm name is enough. This is ridiculous. I am 50 years in business. I have never heard such - I speak five languages and I have been in 20 countries and I never heard a thing like that in my life and there is no signature, not ours and not our solicitors on the document, and that is what the Court of Appeal twisted the thing. They were absolutely in great error accepting this firm name as a signature.

KIRBY J: Well, the Court of Appeal said the agreement was signed by the applicants' solicitors on their behalf.

MR VON SCHULZ: That is it. It was not. That is what it is. Her name was Boughton. You see the other parties, they are all signed - solicitors, Mr Woolmer and Mr - what is his name - Ian Briggs for the second and third defendants. They all signed it and put their firm name there.

KIRBY J: His Honour says that the sum of $20,000 was duly paid to you on 17 December and that the cheques were presented and paid and that you, therefore, received the cheques.

MR VON SCHULZ: That was an agreement for the economical loss. Your Honour, from $3 million going down to 20,000 each and we did not receive the 20,000. They deceived us and stole $10,500 from our economical loss and then they poison us with arsenic and that in the mediation it was clearly said his Honour is wrong in Court of Appeal because they say that, "We have another hearing. It is too complicated at 5.30 on the 3 December." They come up at 5.30 and say, "It is too complicated your $3 million claim for injury and damage. We have another hearing". But this never eventuated. They cheated us; they defrauded us, believe me, your Honour.

It is not - and now, your Honours, in the Court of Appeal and Supreme Court they covered up for this forgery, nothing else, because there is a colleague involved, Margaret Wilson - she is now a judge - and they just covered up and rejected all our evidence. They did not accept - - -

KIRBY J: Well, I do not see the slightest evidence of a cover up in the material that has been placed before us.

MR VON SCHULZ: Yes, your Honour, it is. This is the evidence here.

KIRBY J: This is a very serious and scandalous allegation that you are making. It is easy to make such allegations and there is just no basis whatever for establishing that Mediator Wilson or the Court of Appeal covered up in any way. Why would do that? They are judges dealing with your case.

MR VON SCHULZ: What about the intimidation with the police behind us. Why did they do that?

KIRBY J: Well, they might have thought you might misconduct yourself. Perhaps you have done that with registry staff or with others.

MR VON SCHULZ: That is not true, your Honour.

KIRBY J: But you have no policeman behind you today. You are just speaking to the Court.

MR VON SCHULZ: I am speaking to the Court.

KIRBY J: So go on with what you have to say but concentrate on what you say is the error of the Court of Appeal.

MR VON SCHULZ: The error is - the error, your Honour, is beyond reasonable doubt our solicitor, when you see this B and A - we presented to the court some copies of relevant pages. They tampered twice with this terms of settlement and the terms of settlement is not signed. That is the whole idea, not signed by our solicitor. Your Honour can see on the bottom that is the signature of our solicitor. It does not appear on solicitors for the plaintiff on the top.

KIRBY J: Yes.

MR VON SCHULZ: It does not appear there. Also the terms of settlement but mediator certificate - now, your Honours also can see we claimed this one for the criminal and this is a criminal case. We were not allowed to participate in that mediation. She accused us - the mediator accused us of eating Chinese herb who contain arsenic, which is a lie, absolute lie, and also - and then she removed us for 51/2 hours from this mediation, so we had no idea what was going on in the mediation.

That is why I am saying and we pointed out to the honourable Court of Appeal that this was a conspiracy and that is, of course, like your Honour said, a very big, strong accusation, but it is the truth. It is the truth. For God's sake, it is the truth and we have documents to the truth, you see. And also, the other party, the respondents, just by affidavit admit and say we should have been relocated to avoid any further poisoning.

Now, he admitted that he used arsenic. He admitted he poisoned us. He admitted they did not relocate us. It is all in our affidavit that we just presented - under 322 poison with intended to harm. That is our - that is our whole - and the Court of Appeal - this is criminal and the Court of Appeal simply just because we have no solicitors, no barristers, they played a game with us and this is the absolute truth and they just did not accept all our evidence. Nothing they accept. They just made up, "Oh, you just" - what did they say - "abused the court process and all this" - and that was the only reason why they dismissed our case. We were not allowed even to present it properly.

When we started with this mediation certificate - you see your Honours can read, your Honours, but the Morriello, she was in Italy, she was even in the mediation, Mrs Morriello, the first respondent, and we were not participating. This mediation certificate is a total fraud and we did - and the Court of Appeal should have accepted this and look into this matter. Instead they just accuse us of abuse of court process, et cetera, and dismissed our cases.

We are claiming to the honourable High Court under the appellate jurisdiction to ensure that our case to be heard in accordance with the law involving general principles of law, criminal law in this case, your Honours, and this is all we are - we want. We have evidence to this fact. This is all what we want, because poisoning people with arsenic is a criminal offence beyond reasonable doubt, by even eating and cooking over the head of my wife he sprayed and they did not say that he was issued - "It is only dust. It will cause you no harm."

Now, this is a lie. This is criminal and we have - the arsenic sit in our body system for life. There is no cure in Australia. That is the reason we need our compensation and we have provided 10 blood and urine tests to the Court of Appeal. We provided doctor's certificate, professor, everything. It is all in the affidavit here of 1 May. Which page is it? Yes, he admitted in an affidavit - show me - have to prove this - where is the affidavit, 1 May?

This is a criminal matter, your Honours - we are proceeding now - and that is the reason why we took out a second summons. The first summons was a civil matter which the barrister misled the court, evidently misled the court, the honourable court, Mr Justice Gummow and Mr Justice Hayne and say that that case was never mentioned in the Court of Appeal, which is not true. The transcript clearly show they referred to our appeal, 5 May 1998.

KIRBY J: Now, I notice the light has come on, which means you have five minutes, and I would be prepared to give a little bit of an extension, but what do you say about the case concerning the Attorney-General?

MR VON SCHULZ: The Attorney-General - what happened, your Honours, Mr Justice Pincus stand up and say, "Your solicitor signed - Ms Boughton signed that affidavit". We say, "Your Honour, this is not true". "I am telling you she signed the - she signed the terms of settlement." I say, "Your Honour, this is not true". And then also he ordered a police behind us and he made mistakes and say that terms of settlement is - and that caused us a lot of pain and suffering and stress.

KIRBY J: I know you are upset about the police being behind you but you do not have the police behind you here - - -

MR VON SCHULZ: Yes. So we took out a summons.

KIRBY J: - - - and in the one concerning the Attorney-General - - -

MR VON SCHULZ: That was intimidation.

KIRBY J: - - - you sought an application for an extension of time, which was refused and the decision was made by the magistrate on 20 March to strike out the claim in the Magistrates Court. You then sought leave to appeal from those orders to the District Court and the judge refused it on 25 May. Now, ordinarily extension of time orders are within the discretion of the court and ordinarily we would not interfere in that. Now, why should we interfere in your case?

MR VON SCHULZ: You should simply interfere, your Honours, because Mr Foley, the Attorney-General, first, he abuse the whole court system in Australia. Justice is not about the truth. Australian courts are viewed as dangerous places. Judges forgotten reality. This is what he is saying. Judges cannot be trusted and it is shock of the system. Judges, Brisbane, old boys club. Attorney-General substantiated the principal fact and say judge not about the truth and truth is a burden to them.

KIRBY J: Well, I am sorry to interrupt you, Mr von Schulz, but these are generalities. When we come down to your particular case, the District Court judge refused to allow an extension of time and you sought leave to appeal to the Court of Appeal and they refused to disturb that order.

MR VON SCHULZ: I accept - - -

KIRBY J: Now, normally the High Court of Australia, which is the final court in country, does not get involved in cases of that kind. They are just procedural matters.

MR VON SCHULZ: But, your Honours - this is true. This is true what your Honour say, but we are punished under these circumstances. That is what the judges in the Brisbane courts did to us, to cover up for their colleagues, for the judiciary. We did not sue the Attorney-General. He has no matter to appear here in Court. We did not sue the Attorney-General. We sued Mrs Margaret Wilson for her forgery in the - of the Queen's Counsel and mediator of the forgery of her signatures on the.....solicitors on the terms of settlement and also forgery of her mediator certificate. That is why we sued them in the Magistrates Court.

KIRBY J: Yes, but you brought proceedings and the Attorney-General intervened in order to represent the interests of the judicial officers and mediator who has the protection of the judicial officers.

MR VON SCHULZ: Under which law? He does not show any law whatsoever what was his right to simply take over and protect them. He is supposed to protect us, the public. We are the one - and we also reported to him as arsenic victims - - -

KIRBY J: Yes, we know that.

MR VON SCHULZ: - - - and he never done nothing.

KIRBY J: Yes.

MR VON SCHULZ: And, accordingly, he turn around against us. What kind of law is this?

KIRBY J: Yes.

MR VON SCHULZ: So that is the reason why we came to the honourable High Court of Australia.

KIRBY J: Well, I understand that. Have you said everything that you want to say in relation to the two matters that are before the Court?

MR VON SCHULZ: The time is too short. I have to say many more, but, your Honour, this is - I have here - - -

KIRBY J: I know it is short, but it is short - - -

MR VON SCHULZ: - - - the sections, the criminal sections under which we have been discriminated, you see.

KIRBY J: Yes, we understand what you have put in your written submissions. We have read the written papers.

MR VON SCHULZ: It is on page 14 - on page 14 and page 15 of our affidavit.

KIRBY J: The purpose of this hearing is to allow you 20 minutes, or 25 minutes, in which to advance orally what you have already put in your written submissions. So we have read those and we have read them in both matters, the matter in which you are suing Morriello and Grant Currie and Cure All Pest Control and the matter in which the Attorney-General for the State of Queensland intervened in the proceedings below where you were seeking to proceed against judges and a mediator. So we know all that detail. Now, have you said everything that you want to say in the 20 minutes that is available to you?

MR VON SCHULZ: No, I did not say everything, your Honour.

KIRBY J: Well, is there anything important that you have not said in your written submissions which we have read?

MR VON SCHULZ: Yes. What I have to say, your Honours, is all we want is justice and we need our compensation case. We need our money to get healed, to start healing.

KIRBY J: Well, I understand that. You see, the basic - - -

MR VON SCHULZ: We are dying from this arsenic.

KIRBY J: I understand what you say, but the basic problem, you see, is that you settled the compensation case - - -

MR VON SCHULZ: No, we did not.

KIRBY J: Well, I know you say that, but that is - - -

MR VON SCHULZ: That is wrong. That is evidence - that is evidence. It is not. That $29,500 they gave us for economical loss and our solicitor say, "You cannot ask more because you are on a pension".

KIRBY J: Yes.

MR VON SCHULZ: "And the injury and damage will be discussed at some other date. It's complicated." Now, that is the God's truth and this is - this is forged terms of settlement.

KIRBY J: Yes, very well. Well, your time is up, I am afraid, Mr von Schulz.

MR VON SCHULZ: What I want to say, your Honour, please, I need time to convince you that this document is not settled - this case is not settled in mediation. It is invalid. The mediation is a fraud, a conspiracy. So help me God, there is no signature of our solicitor. That is what they relied on.

KIRBY J: Yes, thank you. That has been considered in the Court of Appeal. The Court will not need your assistance, Mr Stewart.

MR STEWART: If it please your Honours.

KIRBY J: The Court has heard together two proceedings, one of them, in matter B32 of 2000, is the proceedings between Karl and Theresia Martha Citra von Schulz and Valentino and Gerarda Morriello and Grant Currie and Cure All Pest Control Pty Ltd. The other, in B74 of 2000, is between the same applicants and the Attorney-General for the State of Queensland.

In the matter of von Schulz v Morriello and Grant Currie and Cure All Pest Control Pty Ltd, the Court of Appeal held that no basis was established to permit the applicants to reopen a compromise to their damages actions to which they, by their solicitors, had agreed. The Court of Appeal, perhaps unnecessarily and irregularly, went on to consider whether leave should have been granted to the applicants to present criminal informations against certain persons. The Court of Appeal refused such leave on the materials provided. No error is shown in that decision. No basis has, therefore, been shown to warrant the grant of special leave by this Court, which is, accordingly, refused with costs.

In the matter of von Schulz v The Attorney-General the Court of Appeal refused the applicants an application for extension of time and dismissed an application for leave to appeal from orders of a District Court judge. We see no error in the reasons of the Court of Appeal, which are most clearly expressed in the reasons of White J. Accordingly, special leave to appeal is refused. The Attorney-General seeks dismissal of the application with costs. There being no reason to vary the ordinary practice of the Court, special leave in that matter is also refused with costs.

Mr and Mrs von Schulz, those reasons will be taken out and made available to you later, but both of your applications have been refused.

AT 12.18 PM THE MATTER WAS CONCLUDED