Giniotis v Finlay & Anor S139/2001 [2001] HCATrans 522 (15 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S139 of 2001

B e t w e e n -

STELLA S. GINIOTIS

Applicant

and

J. FINLAY

First Respondent

FRANK MANSOUR

Second Respondent

Chamber Summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 OCTOBER 2001, AT 10.29 AM

Copyright in the High Court of Australia

MRS S.S. GINIOTIS appeared in person.

MR D.F. GALBRAITH: I appear for the first respondent, your Honour. (instructed by Crown Solicitor for New South Wales)

MR B.M. GREEN: Your Honour, I appear for the second respondent. (instructed by Crown Solicitor for New South Wales)

JURGIS JANAVICIUS, sworn as interpreter.

HIS HONOUR: Now, Mrs Giniotis, you have two summonses. The first one we are dealing with is against Finlay and Mansour.

MRS GINIOTIS: Is correct.

HIS HONOUR: Yes.

MRS GINIOTIS: In regard my husband - deceased husband - will which was rejected to accept.

HIS HONOUR: I know, but you have a special leave application in respect of that. You now have brought out a summons but this Court has no jurisdiction to deal with any of the matters in your summons. If you have any rights, then they will be dealt with in the special leave application. But, sitting as a Court, this Court does not have jurisdiction to do any of the three matters that you want us to do.

MRS GINIOTIS: I asking honourable Court to consider my situation which was created - created problems which I have - I am - I was wife 27 years - my husband - and I serve 27 years and after this all when my husband has problem - medical problem - and was put on medication - heavy drug - I come victim since problem was created more when my case - second case - are involved Guardianship Board when I was attacked on the street twice. First time I was attacked in my home - nighttime, 2 o'clock.

HIS HONOUR: Mrs Giniotis, I understand what you say but I sit here as a Court and a Court which has only the powers conferred on it by the Constitution or by certain legislation and this Court generally hears appeals. It has other powers. But we do not have any powers to do any of the things that you seek us to do in your summons. For instance, you want us, in paragraph 2 of your summons to order the urgent release of funds from an account of the deceased to pay all bills. Now, they are matters that have to be dealt with by the Supreme Court of New South Wales. If it makes a mistake, then you can appeal to this Court or seek special leave and you have done so. But you are asking me to make an order as a Judge of this Court and we have no power to do so.

MRS GINIOTIS: Honourable Court, I asking because I am on rules of Australian citizen and I am - have rights equal as every citizen. If, for illegal immigrants allowing get assistance and representation - legal representation - and I am citizen and for me was denied by legal authority without any excuse.

HIS HONOUR: Yes, but, Mrs Giniotis, those matters are matters that you will be arguing in your special leave application, and that will come before two Judges who will be sitting for the whole of the Court. You now have a summons and I have no power to make any of the orders that you seek.

MRS GINIOTIS: But I am citizen. I have no rights on citizen - Australian Citizen, you know, Act to get force - the situation now is built that I am forced to come to this Court, not because I want to come.

HIS HONOUR: Yes, I know, but what I am saying to you is that you come to this Court in your special leave application and you put your argument to the Court then, but you have now taken out a summons. This is not the whole of your case. I am not hearing the whole of your case. That will come before the Court later on.

MRS GINIOTIS: Honourable Court, again, I asking to understand that my bill since my husband die it is not paid because not allow bank to access to my money because legal aid lawyer - - -

HIS HONOUR: Yes, but, Mrs Giniotis, I have no power to order anybody to do any of the things that you want me to do. It is as simple as that. I do not have the power. The Supreme Court of New South Wales may have the power and if they make a mistake then you can appeal to this Court and you are seeking to appeal to this Court but you are coming and asking me to make orders which I cannot make.

MRS GINIOTIS: Yes, but honourable your Honour, I am in Australian, the higher Court - - -

HIS HONOUR: Yes, but it is a Court - - -

MRS GINIOTIS: Who can?

HIS HONOUR: Only the Supreme Court of New South Wales can make those orders. On appeal, if they get it wrong, the Court can generally but not me. Now, Mrs Giniotis, I cannot allow the time of this Court to be taken up by an argument which has no prospects of - - -

MRS GINIOTIS: But my electricity switch off; my water - I have no rights to use water. This money legally belongs to me.

HIS HONOUR: Mrs Giniotis, I am very sorry to hear these things have happened to you but unfortunately I have no power to assist you. I am sorry, but you will have to argue your case before two Judges later on in the year. If they think the Supreme Court was wrong, then, no doubt, you will get whatever relief you are entitled to, but until then you will just have to deal with the matter as best you can. I have no power. I cannot make any orders to release funds from an account.

MRS GINIOTIS: For my account, legal, I asking. I am not asking from legal aid lawyers account.

HIS HONOUR: I understand what you are asking but I am telling you I have no power.

MRS GINIOTIS: And who has power to get me rights to pay bill to get electricity switch on?

HIS HONOUR: Well, if you have rights, then the Supreme Court is the party and if they are wrong, this Court - - -

MRS GINIOTIS: But they did, they forced me come to here.

HIS HONOUR: Yes, and you have an application for leave to appeal. Now, Mrs Giniotis, I have told you on several occasions I do not have any power. It is pointless to continue on and I will have to ask you to resume your seat and I will give a judgment in this matter. I am very sorry that you are in this position but there is nothing I can do at the moment. You will have to wait until your case comes before the Full Court on your special leave application. But you have taken out a summons and I do not have the power. Now, would you kindly resume your seat, please.

The applicant, Mrs Giniotis, has filed a summons in which she seeks four orders:

"1. The Respondents should abid the Law Reform Commissioner

Office all Rules in the Supreme Court proceedings and to stop mislead the public in regard Applicant a husbands (Alfonsas Giniotis) the Last Will and Testament date 30.4.1982 Certify by NSW J.P. No 9102333 by Joan Margaret Toulmin and Published in News a paper, The Australian date 4th November, 1999 on the page 28 and 8-9 April, 2000 on page 56.

2. Order, urgent to release fund from an account of decease

(Alfonsas G.) to pay all bills, to restor a house broken window and for general improvement of the house.

3. Investication the NSW Certificat of Title the Register Book

Vol. 4322 Fol. 35; Vol. 10242 Fol. 55 and Supreme Court Equity Division case No. 2459 of 1976, Order 2^nd March, 1982 (to sequestration a property when Rates was paid.

4. The Respondents pay the Applicant cost in this all matter."

Mrs Giniotis appears in this matter unrepresented. It appears that on 22 May 2000 she commenced proceedings in the Common Law Division of the Supreme Court against the first respondent and the Legal Aid Commission Office. The first respondent is the Registrar of Probate in the Supreme Court of New South Wales. Against him, the applicant sought an order that he comply with the rules of the Supreme Court and an order that he accept a certified copy of a will of Alfonsas Giniotis, which was allegedly executed on 30 April 1982, in lieu of the original will. The summons sought no relief against the second respondent.

Eventually, the proceedings came before Justice Young on 31 July 2000. The applicant was represented by a solicitor, and the first and second defendants were represented by their solicitors. Through a solicitor, the applicant expressed concern at the requirement that she produce the original of her late husband's will. His Honour indicated that the Court would be prepared to grant probate if the applicant produced the original of the will for citing and copying. His Honour subsequently dismissed the summons in the Common Law Division and referred the probate proceedings to the Registrar. On 23 December 1999, the applicant, as executrix, had applied to the Supreme Court of New South Wales for a grant of probate of the will to which I had earlier referred.

Subsequently, on 28 August, the applicant filed a notice of appeal in respect of orders made by Justice Young on 21 July 2000. The first respondent, Mr Finlay, the Registrar of Probate, was named as a respondent to that appeal and the second respondent, Mr Mansour, who had not been a party to the proceedings in the court below, was named as the second respondent. On 5 February 2001 the appeal was dismissed in so far as it related to Mr Mansour.

The applicant's appeal to the Court of Appeal was heard and determined on 4 June 2001. The Court of Appeal unanimously dismissed the appeal, and now by an application filed in this Court on 2 July 2001, the applicant seeks special leave to appeal to this Court from the Court of Appeal's decision.

It is apparent, as I pointed out to Mrs Giniotis during argument, that sitting as a single Judge of this Court I have now power whatever to make any of the orders sought in the chamber summons. If Mrs Giniotis has any rights, then they are matters that will be considered by the Full High Court when it hears her application for special leave to appeal.

She tells me that her electricity has been cut off and it is obvious from other matters that her financial situation is very poor. Unfortunate as that may be, there is no relief that I can give her. Accordingly, the summons must be dismissed.

MR GREEN: Your Honour, could we have costs?

HIS HONOUR: Mrs Giniotis, the parties are asking for costs in this matter. I am afraid I will have to make an order against you. Is there anything that you can say?

MRS GINIOTIS: I objecting.

HIS HONOUR: You object, I understand.

MRS GINIOTIS: Objecting on grounds that - this is incorrect information given. I not made application on 20 August. Somebody made without my authority and I was published in Australian newspaper that without my handwriting authority nobody has rights to put application on my behalf. I want answer from that why they asking me costs.

HIS HONOUR: It is because you have asked for orders that I could not make.

MRS GINIOTIS: But in orders what I heard now for me now much clear, that on 20 August which mentioned I not make application and nobody has rights on my behalf make without my knowledge and without my authority.

HIS HONOUR: It is probable that your solicitor has - - -

MRS GINIOTIS: Solicitor was not allow any matter deal, only appear in court on 31st before honourable Judge Young and that is all lawyers has rights.

HIS HONOUR: Those matters can be dealt with in the special leave application and now that you may be better informed about the matter, you may be in a position to present a more effective argument before the Full Court. But it does not affect the situation that I have no power to make any of the orders that you have sought and your summons must be dismissed and it must be dismissed with costs.

AT 10.48 AM THE MATTER WAS CONCLUDED