Martin v Individual Homes Pty Ltd & Ors C3/2001 [2002] HCATrans 228 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 2001

B e t w e e n -

ANTHONY GILBERT MARTIN

Applicant

and

INDIVIDUAL HOMES PTY LTD (in Liquidation)

First Respondent

IAN ROBERT JOHNSON AND PARTNERS TRADING AS MALLESONS STEPHEN JAQUES SOLICITORS

Second Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 MAY 2002, AT 11.18 AM

Copyright in the High Court of Australia

MR A.G. MARTIN appeared in person.

MR F.J. PURNELL, SC: May it please the Court, I appear with my learned friend, MR M.P. BRENNAN, for the first respondent. (instructed by Mallesons Stephen Jaques)

GAUDRON J: I hold a certificate from the Registrar noting that the application for special leave was initiated by Anthony Gilbert Martin and his wife, Sue Dolores Martin, they being the appellants in the court below, and that on 25 June 2001, Mrs Martin filed a notice of discontinuance, and therefore she is no longer named as an applicant in the matter. The Deputy Registrar also certifies that Mallesons Stephen Jaques Solicitors have not entered an appearance in this matter, and that they were not parties to the original proceedings, and it was held below that their joinder was an abuse of process. I do not know where that takes you, Mr Martin, but we will hear your application.

MR MARTIN: Your Honour, could I get your Honours to refer to the document that has been produced by the Registry, where this particular case is shown, your Honour.

GAUDRON J: No, I do not understand what you are talking about.

MR MARTIN: Of the list of hearing today.

GAUDRON J: Today's list?

MR MARTIN: Today's list of the matters - - -

GAUDRON J: Yes.

MR MARTIN: - - - in which there is a description of what this case is all about.

GAUDRON J: No, we do not have that.

GUMMOW J: We do not have that.

GAUDRON J: We do not have that. That does not concern us, Mr Martin.

MR MARTIN: The reason why I am referring - and it is much better than what I have prepared - and I was going to use that as a format - - -

GAUDRON J: Well, you can read it if you like.

MR MARTIN: In fact, everything said in that is correct except it misses a very vital ratio decidendi decision of 20 July 2000. Now, at the bottom of it, it says:

The questions of law said to justify a grant of special leave to appeal include:

Whether the Full Court erred in law by not granting the applicant leave to appeal from the decision of Chief Justice Miles.

In fact, your Honours, my case is 10 times worse than that. In fact, the question of law said to justify a grant of special leave is whether I had a statutory right of appeal which was not given, and that is section 24(1)(b) of the Federal Court Act - - -

GAUDRON J: That concerns the orders 5, 6, 7 and 24 that you sought before Chief Justice Miles, does it?

MR MARTIN: No, your Honour, it refers to - if your Honours could look at AB 66, to my supplementary notice of appeal, it would be helpful. I will take you to that, after I have done the introduction to it.

GAUDRON J: Very well, as you like. But I had understood that the leave to appeal issue related to the question whether or not the orders 5, 6, 7 and 24 that you sought before Chief Justice Miles were or were not interlocutory.

MR MARTIN: Your Honour, this is what the confession issue is. What I am saying is that I went in with the supplementary notice of appeal, and that supplementary notice of appeal is based on my statutory right of appeal. Now, that statutory right, under section 24(1)(b). Now, the court then went up and said, "You do not have such a right of appeal. All of what you are appealing from is interlocutory". My submission to them was, "None of them was interlocutory, that I am coming in front of you". So then they ruled on 24(1)(b).

Then they went up and ruled on 24(1)(a), that there was no arguable point in my supplementary notice of appeal, not even points of law - if you look at page 66. Then they went and ruled that under Federal Court Act, Order 52, rule 14(1),(2) and (3), that the joining of the second respondent was vexatious and an abuse of process. Then they went up, again, and ruled under Order 52, rule 18(1) and (2) that my appeal was incompetent. Now, if your Honours could look now at - - -

GAUDRON J: If you look at page 108C, what they were saying - and this is ultimately the decision from which you appeal - leaving aside paragraphs 5, 6, 7 and 24, it simply was not competent for you to raise any of the other matters that you did before Chief Justice Miles. The reason it was not competent is because you were traversing either the judgment for possession or matters that were necessary to a determination of the judgment for possession. Then they said, 5, 6, 7, 8 and 24 needed leave.

GUMMOW J: That is right.

MR MARTIN: Your Honour, I was absolutely, totally and utterly meticulous. I will take you to the transcript where I said that - - -

GAUDRON J: You may have been meticulous, but you may not have been right.

MR MARTIN: Your Honour, I went into this Full Federal Court armed with a ratio decidendi decision of the Full Federal Court of 27 July 2000. Now, I did not challenge the issuance and not single one of the declaratory orders that I sought: (a) I went and asked; then it went in front of Justice Miles. The orders I asked for that the warrant of possession, the writ of possession, the warrant of possession, and the notice to quit were null and void. Then in the alternative to that, a stay be granted. Now, the so-called declaratory orders had nothing, did not, under any stretch of the imagination, it only challenged that you are executing it.

You are executing it contrary to the Rules of the New South Wales Supreme Court, Part 40 to 44, which was incorporated in the ACT one, and you are executing it contrary to legislation that applies to execution or eviction order in relation to domestic houses, as opposed to farms and commercial properties. I did not go in there to the Federal Court, your Honour, I went in there supported by a ratio decidendi decision which came subsequent to the original summary order, and I went in there armed with your own obiter dictum comments. Now, the Full Federal Court totally, completely, disregarded the ratio decidendi decisions - - -

GAUDRON J: But by that time, you came to the Full Court, Mr Martin. Indeed, by the time you came before Chief Justice Miles, there was a judgment for possession. Is that not right?

MR MARTIN: There was a summary common law order to enter for possession, which is different to convert that into an order for vacant possession.

GAUDRON J: It was judgment for possession, was it not?

MR MARTIN: Yes, I agree for that, based on - - -

GAUDRON J: Very well, now, once there was - - -

MR MARTIN: - - -based on rulings of law.

GAUDRON J: And you did not get a stay on that judgment, is that not right? You sought a stay of the judgment for possession from Chief Justice Miles.

MR MARTIN: That is right, your Honour.

GAUDRON J: And you did not get a stay.

MR MARTIN: That is right, your Honour.

GAUDRON J: Very well. But, a number of the matters you were raising attempted to subvert, as you were, to make collateral attacks on aspects of the factual findings that led to the judgment for possession, did they not?

MR MARTIN: None of them, your Honour.

GAUDRON J: Let us have a look.

MR MARTIN: Absolutely none of them.

GAUDRON J: Is your notice of a motion - - -

MR MARTIN: Yes, your Honour, my notice of the motion is - my notice of the motion is 1 to 4.

GAUDRON J: Paragraph 1 - - -

MR MARTIN: Yes, your Honour.

GAUDRON J: - - -sought to subvert the very basis of the judgment for possession - order 1.

MR MARTIN: No, your Honour, it did not.

GAUDRON J: You may say so, but - - -

MR MARTIN: And I will support - it - 1, 2, 3 all leads up - all of those declarations are established law that leads up to saying that any notice to vacate comes under number 5 - any notice to vacate a warrant of possession, de facto, the handling over of the keys of 8 Grund Place to Mallesons Stephen Jaques, Solicitors, is null and void. Now, because I - nothing that I had asked for declaratory orders - - -

GAUDRON J: What you were seeking to do in those proceedings, one way or another, was to stop the execution of the judgment for possession, is that not right, and, if you could not stop the execution of the judgment you wanted it stayed?

MR MARTIN: Your Honour is partly right because we were waiting - the very basis of that summary judgment - and waiting for that, and including jurisdiction that the High Court - that the ACT Supreme Court - - -

GAUDRON J: Now, Mr Martin, you have conducted enough of this litigation to know. You have been in and out of these courts for years, now, including this Court. You have been around long enough to know that once a judgment is given you can either appeal it or it stands. You do not attack judgments, as you well know, by the process engaged in before Chief Justice Miles.

MR MARTIN: Your Honour got it totally wrong. I only attacked the execution.

GAUDRON J: Exactly.

MR MARTIN: I did not execute it.

GAUDRON J: Exactly. Once judgment is given, it has to be executed, one way or the other.

MR MARTIN: It has to be - - -

GAUDRON J: That is the nature of a judgment.

MR MARTIN: Absolutely. It has to be executed in favour of the right party, according to rules set out. That is all that I attacked at that stage. When it came to the Full Court I attacked the basis of it because there was a ratio decidendi decision and if I could take you to the ratio decidendi decision which is in the supplementary appeal book, and if I can take you page 208, first, starting - - -

GUMMOW J: No. What is this judgment you are talking about?

MR MARTIN: It is the judgment of Chief Justice Miles, Einfeld and Kenny that set aside each and every ruling of Justice Higgins that gave him any justification to issue the summary judgment for possession. I was going to jump up at the back and then come in the front. If you could - want to look at page 193 "appeal be allowed".

When I was in front of Chief Justice Miles I did not, and I can take you to the transcript, your Honour - I went over and over and over and said that I am not challenging one iota.

GAUDRON J: You can say it but the question whether in law it has that effect is a different question.

MR MARTIN: Yes, but I challenge the execution in front of Justice Miles. When it went in front of the Federal Court then my first basis - my first basis - supplementary notice of appeal is that all the foundation for this order of Justice Higgins was taken out by the - - -

GAUDRON J: But then you appeal it. You know that once the judgment is given it stands unless it is appealed.

MR MARTIN: It was - your Honour, this is what the confusion is, your Honour.

GAUDRON J: No, that is the law.

MR MARTIN: Your Honour, please - your Honour, Justice Higgins made a summary order for possession based on his own ruling of rights. Now, before that original decision could be appealed and a decision got, a summary order was got based on that. The appeal, we lost it. We asked for special leave and we lost it and I was not going and I did not regurgitate any of that ground. I only - in front of Justice Miles, I challenged and I challenge it now that the writ of possession was null and void, that the warrant of possession - there is no statutory basis in Australia to give warrant of possession by non-judicial officers to themselves - - -

GAUDRON J: Has the judgment been executed?

MR MARTIN: Absolutely, and the property sold.

GAUDRON J: And the property sold. So, what utility is there in agitating any of these matters?

MR MARTIN: Your Honour, I have got a ratio decidendi decision of the Full Federal Court - - -

GUMMOW J: No.

GAUDRON J: No. What practical utility is there in - - -

MR MARTIN: The practical utility is I can be restored to my family house because I gave notice to the people who sold - - -

GAUDRON J: No, you cannot.

MR MARTIN: Or, if you could ask me - if you can ask me - if you can - - -

GAUDRON J: Not in these proceedings. These proceedings cannot do any of those things.

MR MARTIN: Yes. Your Honour, it is - the High Court is sort of saying - I am asking - if I had in any stretch of imagination asked - challenged Justice Higgins' summary order in front of Justice Miles then I was totally utterly wrong. I did not. I did not and it is absolutely provable that I did not. Now, the special leave asked in the manner which your Honours have been advocating - advocating today is that I went in there as per my supplementary notice of appeal found in page 60 - I went in there armed with a ratio decidendi decision and I went in there armed with established laws. Right. Now, in what - where is the error - what errors did the - did they - - -

GUMMOW J: What is this ratio decidendi decision you keep talking about?

MR MARTIN: Yes, your Honour. On page 19 - it starts at page - - -

GUMMOW J: I know that, but what is the particular passage that supplies this ratio decidendi?

MR MARTIN: What - I will take your Honour - I have got it prepared so I will take you one by one.

GUMMOW J: Is it 208, is it?

MR MARTIN: Here - your Honour, I will take you - I will take you - I will take you - take you - your Honour, if - okay. Okay. If your Honour could - I will take you quickly, 193. If your Honour could go to 193?

GUMMOW J: Yes, we have looked at that.

MR MARTIN: Yes, okay. Your Honour, please, I will just go on. Okay, 193, "The appeal be allowed."

Now - - -

GUMMOW J: Yes, this is an appeal against what?

MR MARTIN: It was appeal, and if your Honour could go - I will quickly take you down now to - your Honour, bear with me, it is all marked out. Bear with me for a few seconds, please. If your Honour could now go - just bear with me, please. There is - there was - okay, your Honour, at page 199. Now, I appealed against orders 1, 2 and 3 that is noted down because 1, 2 and 3 - basically, Justice Higgins said I had no property right, I have got no tenancy right, I have got no compensation right and I have not got a right to ask the company be wound up - to terminate.

GAUDRON J: No, you do not appeal against those. You appeal against orders. What was the order that - - -

MR MARTIN: 1, 2 and 3 I appealed against which was ruled against me. The ratio decidendi decision gave me 1, 2 and 3 and then went and set aside all the other orders as well because of jurisdiction problem. Now, I did not go down there. I - and your Honour understood what the matter was on 31 July when it was before your Honour and if I am coming to this Court - - -

GAUDRON J: It was various declarations that had then been made that were set aside, is that not right?

MR MARTIN: Yes, but, your Honour, if you - - -

GAUDRON J: Now, your time is very short.

MR MARTIN: Yes, but if your Honour then goes to 208.

GUMMOW J: Yes.

MR MARTIN: And, line 4. The Full Federal Court knew that these orders have been now sealed and action was going to take place on it because I made - I gave all of it and they said, "There has been an injustice done - we have to stop it" and it quotes - and it made these rulings under a general power - under a general power and it quotes authority from this Court and that is found in page 208.

GUMMOW J: Now, do we have the orders that were being set aside? Are they set out anywhere?

MR MARTIN: That is in page 193.

GUMMOW J: Page 193.

MR MARTIN: It is in 193. If your Honour looks at 193, "appeal be allowed". I only appealed 1, 2 and 3.

GUMMOW J: Yes, I know.

MR MARTIN: And order 2 - - -

GUMMOW J: What I want to find out is the orders that were being set aside. Where do we find them set out? You are saying you won in the Full Court. What I want to see is what it was that was set aside in the Full Court. Where is the primary judge's judgment, in other words, and orders? The Full Court was dealing with an appeal. The Full Court was dealing with an appeal.

MR MARTIN: Yes.

GUMMOW J: Right? Whereabouts is the primary judge's judgment? Is it in these papers?

MR MARTIN: Justices Einfeld and Kenny wrote the primary rule.

GUMMOW J: No. No, you do not understand me.

MR MARTIN: Or Justice Higgins' one. Yes, the primary court's decision.

GAUDRON J: Yes.

MR MARTIN: Yes.

GUMMOW J: Where is that?

MR MARTIN: It is not in this - not in here.

GUMMOW J: I see.

MR MARTIN: But, your Honour - you will see, your Honour, in page 199 - - -

GUMMOW J: Yes.

MR MARTIN: This one. The justices just say which one Justice Higgins allowed and which one he did not allow.

GUMMOW J: I see.

MR MARTIN: Okay. He allowed - he refused me 1, 2 and 3. He allowed me 4 and 5. He did not rule on 6. Now, the Full Federal Court said, "We will allow you the appeal, with costs. It determines your property right, your tenancy right, your compensation right and these things have now been sealed and therefore we have to set it aside."

GUMMOW J: But look at 208, line 40.

MR MARTIN: Line?

GUMMOW J: Line 40, page 208.

MR MARTIN: Yes. Yes, your Honour.

GUMMOW J:

the proceeding commenced by the Martins . . . should be dismissed as incompetent.

MR MARTIN: Yes. Your Honour, that is - yes, your Honour - your Honour, the - and this is where I am trying to explain to your Honour the - - -

GAUDRON J: I think - - -

GUMMOW J: Your time is up, Mr Martin.

GAUDRON J: Your time is up. If you have anything as to say about - within two minutes - as to the decision of the Full Court now under attack. Not more than two minutes.

MR MARTIN: Yes. Your Honour, the Full Federal Court said notwithstanding the proceedings are incompetent, the appeal should be allowed - okay - because it was an injustice that has to be set right and this held it out in no - and they brought in the authority of this Court, of Justice Gibbs in Chamberlain's Case and they brought in the authority of the Federal Court of Robins.

GUMMOW J: Yes.

MR MARTIN: Right. And notwithstanding the incompetency of it that the appeal should be set aside because there was a gross injustice.

GAUDRON J: Thank you. Mr Purnell, we need not trouble you.

In proceedings before Chief Justice Miles of the Australian Capital Territory Supreme Court, the applicant sought various orders relating to or arising out of a judgment for possession against him. Many of the orders sought amounted to a collateral attack on that judgment or on matters that were determined by that judgment. Others sought to attack the means by which the judgment was to be executed and others still sought a stay of execution.

The motion seeking those orders was dismissed and the applicant then appealed to the Federal Court. In the Federal Court the applicant did not pursue grounds of appeal with respect to the refusal by Chief Justice Miles to stay execution of the judgment for possession. The Full Court rightly held that, apart from orders 5, 6, 7 and 24 sought from Chief Justice Miles, the orders could not be pursued after judgment had been given for possession. As to orders 5, 6, 7 and 24, the Full Court held that leave to appeal was necessary.

Whether or not the orders of Chief Justice Miles refusing orders 5, 6, 7 and 24 were or were not interlocutory, it is clear that those orders sought to challenge steps in the process by which the judgment for possession was to be executed. As that judgment has now been executed, no point can be served by granting special leave to appeal in relation to orders 5, 6, 7 and 24. Accordingly, special leave is refused and it will be refused with costs.

AT 11.46 AM THE MATTER WAS CONCLUDED