Rayner & Anor v Australia and New Zealand (ANZ) Banking Group P23/2002 [2002] HCATrans 417 (30 August 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 2002

B e t w e e n -

DAVID KENNETH RAYNER and SUSAN JOY RAYNER

Applicants

and

AUSTRALIA AND NEW ZEALAND (ANZ) BANKING GROUP

Respondent

Application for a stay

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON FRIDAY, 30 AUGUST 2002, AT 3.06 PM

(Continued from 21/8/02)

Copyright in the High Court of Australia

MR D.K. RAYNER appeared in person.

MR M.J. HAWKINS: May it please your Honour, I appear for the respondent. (instructed by Clark Whyte)

HIS HONOUR: Now, Mr Rayner, you are still appearing for yourself?

MR RAYNER: Yes, your Honour.

HIS HONOUR: And you ask leave to represent your wife?

MR RAYNER: I do, indeed, your Honour.

HIS HONOUR: And she is happy with your representing her? We had a case recently where somebody was representing their spouse, and it turned out that the spouse was not too happy about it. Is your wife present in Court?

MR RAYNER: No, she is not, your Honour.

HIS HONOUR: Well, how do I know that she agrees?

MR RAYNER: She filed an affidavit to say that she consented and approved of me to represent her.

HIS HONOUR: I do not doubt that that is correct, but I just wanted to - in light of recent experience - check and make sure. Yes, I have an affidavit of Susan Joy Rayner, which is sworn 13 August 2002, and by paragraph 3 of that, she asks the Court to permit you to be heard on her behalf. On the last occasion, counsel for the Bank said that he had no objection. I will assume that that remains the case, and you will have leave to speak for your wife, as well as yourself.

MR RAYNER: Thank you, your Honour.

HIS HONOUR: Now, Mr Hawkins, you are appearing for the Bank?

MR HAWKINS: Yes, your Honour.

HIS HONOUR: Yes. Now, I have before me a notification that there is an application to take off the file certain matters that have been placed in the record by the submissions of the applicant, Mr Rayner. What I am inclined to do in this is to allow Mr Rayner to develop his argument, and then to hear that application. If I form the view, at the end of the day, that there is scandalous or inappropriate material, then you will have that relief.

MR HAWKINS: Thank you.

HIS HONOUR: Very well. No reference will be made to the material which you object to until I am satisfied that it is properly before the Court and does not offend Order 59, rule 16 of the High Court Rules. Yes, well, Mr Rayner, you have to make clear the evidentiary basis on which you are moving the Court for the stay, pending the application for special leave. Do you know when the application for special leave is going to be heard?

MR RAYNER: No, I do not, your Honour.

HIS HONOUR: Are you aware whether it is in the list for hearing when the Court is in Perth in October, or not?

MR RAYNER: I have no idea, your Honour. Nothing has been provided to me with a date. It probably would be best if it could be done then.

HIS HONOUR: Well, the Registrar tells me that she is unaware of whether it has been listed in the special leave list during the Court's sitting in Perth in October, so we just have to proceed without knowledge of when it is likely to come on, but it may be that that would be when it would come before the Court. I just do not know. Yes, well, now, what is the evidentiary basis of your application for the stay? You have filed certain papers.

MR RAYNER: Yes, sir.

HIS HONOUR: Just identify, please, for the record, the papers that you are moving the Court on. There is an affidavit sworn by you, which is annexed to the material that you have placed before the Court. That is an affidavit in the Supreme Court of Western Australia, and it was sworn by you on 11 October 2001. Is that the material you wish to place before me?

MR RAYNER: That is correct, your Honour. Also the affidavit of Carolynne Pamela Woods, on 6 November 2000, which is in the book of documents. I think that is referred to. There is an index there, as well, at pages 43 to 79.

HIS HONOUR: Just a moment. At page 43 of the documents referred to in the chamber summons, I have a notice of appeal. Has there been a mistake in the compilation of the documents?

MR RAYNER: That is probably Clark Whyte's documents; this is my own book that was filed on Monday afternoon.

HIS HONOUR: I am sorry. Let us see if I can find it.

MR RAYNER: He has got the heading of "Applicants' outline of submissions for - - -

HIS HONOUR: Yes, I see that. I have the affidavit of Carolynne Pamela Woods, sworn 16 November 2000. That was filed in the proceedings in the Supreme Court of Western Australia, and you ask that that affidavit be read in these proceedings. Is that correct?

MR RAYNER: Yes, I do, your Honour.

HIS HONOUR: Very well.

MR RAYNER: Also, there is an affidavit of Carolynne Pamela Woods, sworn 13 October 1999, which is in that book, page 80 to 116.

HIS HONOUR: There is an affidavit of Carolynne Pamela Woods, sworn 13 October 1999, and that is, as you say, at page 80 of the compilation documents that you have placed before the Court. Do you read that affidavit in support of your application? Is that correct?

MR RAYNER: I do, indeed, your Honour.

HIS HONOUR: Yes, very well. Is there any other evidentiary material you are relying on?

MR RAYNER: I am not sure what happened regarding the set of submissions. Are they going to be allowed in?

HIS HONOUR: That is a different matter. The submissions are - - -

MR RAYNER: Yes, I thought that was.

HIS HONOUR: - - - argument. The factual material is what I want to get straight at the moment.

MR RAYNER: Just the order for directions of Wallwork J, 11 June 2001, page 41 to 42 on the book.

HIS HONOUR: This was an order for directions given by Justice Wallwork of - what date is that? 18 June 2001.

MR RAYNER: Yes, I believe that is correct, your Honour. That is all I will be relying upon.

HIS HONOUR: Yes, very well. Now, Mr Hawkins, you have placed before the Court a letter - or your solicitors have placed a letter before the Registrar, which has been handed to me - which indicates objections to certain of the paragraphs of the argument - just leave that to one side for the moment - but also objections to the submissions for discovery of October 2001, filed in the Supreme Court of Western Australia. Do those objections touch the evidentiary material that has just been identified by Mr Rayner, or not?

MR HAWKINS: No, your Honour.

HIS HONOUR: Have you any objection to the affidavits and order for directions which Mr Rayner is relying on being read by me in support of his application?

MR HAWKINS: I do not have objections to the affidavits sworn by Carolynne Woods - either of those - and I do not have any objection to the order made by his Honour below. If I could just check the affidavit Mr Rayner filed - - -

HIS HONOUR: Yes, very well.

MR HAWKINS: - - - and seems to refer to. There are objections to the affidavit sworn 11 October 2001, that is reproduced in Mr Rayner's book.

HIS HONOUR: Where is that reproduced? What page?

MR HAWKINS: Pages 14 to 40. Those objections are listed in the document that was sent to the Court.

HIS HONOUR: That is the - - -

MR HAWKINS: Paragraphs 16, 17, 19 and so on. It is on the second page.

HIS HONOUR: I follow, yes. Are they related to the suggestion that the material is scandalous or otherwise within Order 59, rule 16 of the High Court Rules? Or is there - - -

MR HAWKINS: Yes.

HIS HONOUR: - - - some other basis of objection?

MR HAWKINS: Also on the basis that they are irrelevant to this application.

HIS HONOUR: Yes. Well, I will reserve issues of relevance, and I will, at the moment, reserve the question of your objection under Order 59, rule 16. I will deal with those when I have a little better understanding of what the documents contain and their suggested relevance to the proceedings before me - - -

MR HAWKINS: Thank you, your Honour.

HIS HONOUR: - - - but they will be dealt with this afternoon, one way or the other. Well, Mr Rayner, what do you have to say? First of all, did you wish to cross-examine any of the deponents of the affidavits, Mr Hawkins?

MR HAWKINS: No, thank you, your Honour. No cross-examination.

HIS HONOUR: Mr Rayner has indicated that that is the entirety of the evidence he relies on. Do you have any evidence that you wish to place before the Court?

MR HAWKINS: No. The respondent simply relies on the reasons for decision given below.

HIS HONOUR: Yes, very well. I have those before me, and they do not have to be tendered as evidence. They are part of the record. Thank you very much, Mr Hawkins.

MR HAWKINS: Thank you.

HIS HONOUR: Now, Mr Rayner, what do you have to say?

MR RAYNER: Simply this, your Honour, that the original summary judgment was obtained by an act of deception by the respondent and, as a consequence of that action - - -

HIS HONOUR: Now, first of all, is that a contention which you advanced before the three Full Courts that this matter has been through, in the Supreme Court of Western Australia, or not?

MR RAYNER: It was certainly raised both in the submissions, the affidavit, and, as far as I can remember, in the arguments I put to the Court. I do not have the benefit of transcript, but certainly it is listed in both the submissions and the affidavit.

HIS HONOUR: Just generally speaking, what is the nature of the deception? Because, as I understand the Bank's case, they say, this is a very simple case: you gave a mortgage over your home, you did not pay the mortgage debt, you were in default under the mortgage; they took action for possession. That was a long time back, and, since then, you have been trying to resist the taking of possession under orders of the Supreme Court.

The order was originally made by a Master; it was confirmed by the Full Court; it was then the subject of an application for a stay - that was refused; it was then the subject of an application for review - that was refused; there was a further application for a stay, which was refused; and you are now before this Court for special leave. Your application for a stay from me is in support of the application for special leave from the High Court. Now, what concerns me is that a lot of the material that you seek to place before me in support of the application for a stay is really an attempt to re-canvass issues which were dealt with by the Master, and, as I read the decisions below, the Master rejected your claim on the basis that it was inherently incredible and should not be believed.

MR RAYNER: That is quite true, your Honour.

HIS HONOUR: Now, the - - -

MR RAYNER: And if that - sorry.

HIS HONOUR: The problem that you face in overcoming that is the repeated authority of the High Court that because we do not see witnesses, assessments of credibility by a judicial officer who does see witnesses will very rarely, and only in the most exceptional circumstances, be overruled, because - - -

MR RAYNER: That is quite true, your Honour, but there were no witnesses.

HIS HONOUR: - - - of the advantages which that judicial officer has.

MR RAYNER: That is my entire point, your Honour. There were no witnesses, so the Master's decisions - - -

HIS HONOUR: Did you give evidence? He says, the appellants - - -

MR RAYNER: No, I am sorry. I only spoke from the Bar table, your Honour. I did not give evidence apart from the affidavit, and the issues are raised in there.

HIS HONOUR: Well, the evidence that you gave was in the form of the affidavits.

MR RAYNER: Yes, but there was no credibility issue in terms of cross-examining witnesses. They have relied on the two affidavits, and, on that basis, the affidavit of Ms Woods was very much an act of deceit to the court. As I have put in my summary of arguments - - -

HIS HONOUR: Just tell me what you assert is the act of deceit.

MR RAYNER: Paragraphs - - -

HIS HONOUR: First of all, may I ask you, you and your wife gave a mortgage over your home, and you have not, as I understand it, paid the mortgage debt. If that is the case - well, first of all, you were given a stay on the basis that you paid a sum of $1,135 a month and, in fact, during that stay, on only four occasions, on 15 June 2000, 14 July 2000, 15 August 2000 and 19 September 2000, you paid only $50 on each of those occasions. That is $200 in all. Now - - -

MR RAYNER: That was as a consequence of the Master varying the order of January 2000 to make the payments $50, in view of the evidence I put before the Master at a stay application in May 2000, supported by the impecuniosity of the appellants, pointing out the errors in the summary judgment - which the Master accepted, and varied that order of January 2000 to be just a nominal payment of $50 per month. That was brought up at the last stay application before the Supreme Court, about four or five weeks ago. That is another red herring that constantly gets thrown in the pot.

HIS HONOUR: Now, your application for special leave raises as grounds that:

The Intermediate Appellate Court has failed to determine tenable grounds properly raised before it.

That its:

Judgment is erroneous in point of Law -

and that it:

throws up a difference of opinion between . . . Lower Courts as to the state of the Law.

They are the only grounds that you raise. Now, they are very vague grounds, and they do not appear to comply with the requirements of the High Court Rules that you state your grounds with particularity, so that the Court can know, and your opponent can know, the issues that you are seeking to raise. So it is difficult, on the basis of those grounds, to think that you would have any chance whatsoever of getting special leave from the High Court. If you do not get special leave, or if there is not a strongly arguable case for special leave, you do not get a stay.

MR RAYNER: I appreciate that point, your Honour.

HIS HONOUR: This Court has said repeatedly that stays in the courts below are exceptional, but stays in the High Court are very exceptional, because of the fact that you need special leave. You therefore have to show something very special or particular about your case, before it is going to get into this Court. So, just on those grounds, I am not surprised that the three Full Courts below - or, at least, two of them - have said that they do not appear to be grounds that would give rise to a special leave grant.

MR RAYNER: I understand that, but the problem has been, all the way through, that we have been arguing for - for instance, go back to the appeal - on matters of how the summary judgment application should have been heard and determined. That was completely ignored. As I have put in my summary of arguments, the procedure is quite straightforward, and the deponent's affidavit - Carolynne Woods of 13 October 1999 - is structured to mislead the court. I will say to this Court - - -

HIS HONOUR: Well, where is that affidavit?

MR RAYNER: Pardon me?

HIS HONOUR: Where is that affidavit?

MR RAYNER: That is pages 80 to 116 of the book of documents. It is the very first affidavit of Carolynne Pamela Woods.

HIS HONOUR: What is your complaint about that document? Page 18, you say?

MR RAYNER: Page 80.

HIS HONOUR: This is 80. This is the affidavit of Carolynne Pamela Woods, sworn 13 October 1999. Now, what is your complaint? Please take me to the paragraph that you are complaining of.

MR RAYNER: An inference at paragraph 7 that the defendant had made regular payments, which is also relied upon by the Master in his reasons for decision.

HIS HONOUR: Which is this? This is on page 82, is it?

MR RAYNER: Yes, your Honour.

HIS HONOUR: I have page 82. What is the point you are making here?

MR RAYNER: This infers, and was taken to infer by the Master, that the applicants or the defendants - the Rayners - had been making regular payments for the period 1992 to 1998. The Master has clearly relied upon that - - -

HIS HONOUR: I cannot find that paragraph. It is paragraph 7, is it?

MR RAYNER: Some of the paragraphs are back-to-front. I will read it, too, if you like:

Clause 1 of the Mortgages provides that the Defendants will pay on demand so much of the advance as shall remain owing as at the date of demand, with interest thereon calculated as provided in the said Mortgage, but that the Plaintiff would not make such demand for so long as the Defendant duly and punctually observed, performed and complied with each and every covenant on his part contained in the Mortgage.

HIS HONOUR: Yes, I have seen that.

MR RAYNER: We would say, your Honour, that - - -

HIS HONOUR: Then there is the next paragraph, which is a repeat of 6, but it is just misnumbered.

MR RAYNER: Yes, it is a typographical error, I think, your Honour.

HIS HONOUR: Yes. But what is the relevance of this? Where are the Master's reasons that make this an important aspect of his decision-making? Where do I find the Master's reasons? Do I have those, or not?

MR RAYNER: Page 54, in the Clark Whyte book. It is supposed to be page 56. I can read the paragraph; paragraph 2 says:

Summary judgment is a jurisdiction which should be exercised with great care and should never be exercised where there is a real question of law or fact to be decided. The plaintiff relies on affidavits of Ms Woods annexing relevant documents and an affidavit of Mr Clark. The defendants rely on an affidavit of Mr Rayner which I consider is filed on behalf of both defendants. He has also produced written submissions and a list of authorities.

The second reference is in paragraph 3, where it says: "The plaintiff's case is set out in the affidavits", and, in paragraph 5, it also says:

The defendants paid the instalments regularly until early 1998 and then the payments ceased.

We would say, your Honour, that the Master has been led by that affidavit to the conclusion that there was no problems with the payments on those accounts for the first six years. We will say that that decision was a wrong decision, because the deponent withheld relevant Bank statements, records of interview and an internal Bank approval letter which showed to the contrary.

HIS HONOUR: So the suggestion is that the Master made a mistake of fact, is it, in drawing an inference from the fact that payments had been regularly made by you, whereas, if there had been more information before him, you say that he might have drawn a different inference.

MR RAYNER: Absolutely, your Honour. I think that the weight of the affidavit is critical to the Master's determination.

HIS HONOUR: Well, it may be, Mr Rayner, but I have to tell you that - and I can understand how you would approach the matter, and think that to be very important, but we are not hearing an appeal from the Master. We would not, if we granted special leave, in the High Court, be hearing an appeal from the Master. We would be only hearing an appeal from the Full Court of Western Australia, and that court has confirmed the Master's decision, and it would be very rare - so rare as to be virtually unthinkable - that the High Court would busy itself in matters of detail as to factual findings of the kind that you would be wanting to agitate before it.

There are concurrent findings of fact by the Master at first instance and by the Full Court, and this Court would not, in my experience, become involved in a re-examination of such concurrent findings of fact. We just do not have the time. If we had to revisit everybody's findings of fact, of every court and tribunal in this country, we would be even more overworked than we are. We just cannot do it.

MR RAYNER: I am not suggesting that, your Honour. All I am suggesting is that this case should be sent back to the court below to be heard and determined properly.

HIS HONOUR: I realise that, but, in order for the High Court to have the authority, under the Constitution, to do that, we would have to set aside the order not only of the Full Court, but also of the Master. You are asking us to do that on the basis of the findings of fact by the Master, and what I am saying to you is, in my experience, having been on the Court for seven years now, I cannot remember a case where the Court has granted special leave in such a circumstance. To you, this is the most important case that you will ever be involved in, and I understand that. This involves your home; it is important to you and your family. I understand that. But from the point of view of the High Court of Australia, we just cannot get involved in concurrent findings of fact. It is just not something we do. It can legally be done, but we just do not have the time.

MR RAYNER: But the Court has the power, as I understand it, to send the matter back if the inferences of fact are clearly wrong, from that which should have been ascertained.

HIS HONOUR: Well, that is correct. We have the power to do it, but what I am saying to you is, as I sit here looking at special leave applications every month of my life, the Court does not get involved in such matters. From the point of view of you and your family, it is very important, but, from the point of view of all the cases we have to deal with, we have to concentrate on constitutional questions, questions involving disputed construction of statutes that might apply to thousands of people, or hundreds of people, questions involving important issues of principle, questions where there are differences between the courts of different parts of the Commonwealth. We just cannot get involved in re-examining a very, very specific and detailed factual determination by a Master of a court, which led him to draw certain inferences that you say, "Well, if only he had looked at all the facts and details, he would have reached a - - -

MR RAYNER: No, I do not say that, your Honour; I say, if all the facts had been put before him, as required under Order 14 of the Rules of the Supreme Court. I think that is a completely different case. Then there is a substantial body of authority to support that. Order 14 applications must conform to a certain test, to certain criteria. Summary judgment is designed to save the court's time - not designed to short circuit the court and manipulate the justice system to arrive at an outcome that suits a particular litigant. Where the interests of justice demand, I think this Court should intercede. I understand everything you have said, your Honour, but the two courts' inference of fact are both flawed, because of the paperwork that was put before the Master at the original hearing, and only came out at the strike out application.

HIS HONOUR: Well, you show me the best piece of factual material that you now know of, that has now emerged, that was not put before the Master, that you say is so powerful that if the Master had had it, the Master would have drawn an inference different from that which he drew on pages 3 and 4 of his reasons for decision.

MR RAYNER: If the Master had had the Bank statements and the account repayments which showed the monthly repayments at the time of the execution of the contract were $1,308, and if the Master had before him the relevant information that showed that at the date the contracts were executed, 30 April 1992, which the Bank had already gone to the trouble to confirm with the Department of Social Security, was the social security payment amounting to $620 per fortnight or $1225 per month, I think he would have been led to a completely different position. There was nearly an $80 per month difference between the gross income and the repayments. The whole transaction was a sham. The whole transaction was designed to fall over, and that was because there was District Court and Supreme Court actions going on at that particular time. The defendants - - -

HIS HONOUR: Just pause there. These monthly repayments - these are on your account, is that correct?

MR RAYNER: That is correct.

HIS HONOUR: Your account and your wife's account. So they were available - - -

MR RAYNER: The two loan accounts - - -

HIS HONOUR: Yes. So - - -

MR RAYNER: Are you talking about the social security payments?

HIS HONOUR: And they were social security payments to you, or your wife?

MR RAYNER: Yes. They go to the wife, as the primary - I think it is primary caregiver - but they are family payments, yes.

HIS HONOUR: So each of those payments would have been known to you when you were appearing before the Master?

MR RAYNER: No, they were not. It is something I dug out later.

HIS HONOUR: What, your wife was receiving social security - - -

MR RAYNER: I was recovering from a serious accident at the time, and I was on anti-depressants when I was before the Master, so I was a little bit - well, I was more than a little bit. I was very sick at the time.

HIS HONOUR: But the actual account documentation was being sent to your wife or you, or both of you, and therefore that - and your wife was receiving the social security payments.

MR RAYNER: It is actually listed in my affidavit - I am just going to try and find which book it is. Now, this is in the Clark Whyte book at page 73, and I have deposed at paragraph 10 - - -

HIS HONOUR: Just a moment, I have to find this.

MR RAYNER: Okay.

HIS HONOUR: Is that the page that begins "Further the Plaintiff"?

MR RAYNER: That is correct, your Honour.

HIS HONOUR: I have that page.

MR RAYNER: At paragraph 10 I depose - - -

HIS HONOUR: Now, whereabouts on that page?

MR RAYNER: Paragraph 10.

HIS HONOUR: Yes:

The Plaintiff . . . breached its own lending criteria in manipulating income levels to show that the Defendant would be able to meet its repayments obligations in respect to the first and second mortgages.

MR RAYNER: That is right, your Honour, and if we had had a chance to put the evidence properly before the Master, or if the affidavit of the deponent in support of the summary judgment application had carried the full details, I think the Master would have reached a different conclusion as to, I think - - -

HIS HONOUR: Just let me pause here. This is your affidavit opposing summary judgment which was filed before the Master, is that correct?

MR RAYNER: That is correct, yes.

HIS HONOUR: It is a document which was filed on 12 November 1999 - - -

MR RAYNER: That is correct.

HIS HONOUR: - - - and it starts at page 45 of the respondent's collection of documents and at page 9 of that document - page 73 of the collection - there is contained a paragraph by which you were asserting before the Master that the Bank had breached its own lending criteria manipulating income levels, is that correct?

MR RAYNER: That is correct, yes.

HIS HONOUR: So you were putting that issue in contest before the Master.

MR RAYNER: That is correct.

HIS HONOUR: So it was there for his decision. What is the material that you say was withheld, deliberately or otherwise, from the Master that stopped the Master addressing that submission in a way that could have led to your success?

MR RAYNER: Yes, there is a record of loan interview and an internal copy of the Bank's loan approval letter which has a number of handwritten notations on it which the Master did not have.

HIS HONOUR: Mr Rayner, again I have to say to you that the idea of the High Court of Australia with five Justices sitting there going through all of this factual detail and reviewing all of these facts which would involve evaluating what the Master might have thought if he had certain material is really not one that I think is a starter. I just do not see the High Court getting involved in the question of whether, if only a Master of a Supreme Court had documentation concerning payments of social security and bank repayments, that the Master would then or should then have reached a different conclusion on the facts. It is just not something we do.

I will tell you there is one exception and that was an exception in a case of State Rail Authority in which there was objective evidence in written documents that showed that the trial judge had reached the wrong conclusion. If you can bring yourself within that type of exception, you may be able to mount some sort of a case, if you could show that there has been a miscarriage of justice, but the thought of the High Court sitting there trying to sift out the details of your wife's social security payment and your monthly repayments is really unthinkable. We just do not have the time. I mean, already I have spent more time with you than we would normally spend on a special leave application.

MR RAYNER: I have to confess I am bit surprised to find that justice runs on a taxi meter.

HIS HONOUR: It does because in this sense, at least, that the people have a fixed time before the High Court. They have 20 minutes. That is out of recognition that we have people coming at us from all parts of the Commonwealth and we just have to limit time. That was done by the Parliament in 1976, so it is not a taxi meter but it is a time meter.

MR RAYNER: I have difficulty, your Honour, in accepting that a respondent can bring an application before a Supreme Court, take critical elements of evidence out, obtain a judgment - - -

HIS HONOUR: Show me the critical evidence - the most critical evidence that you say was taken out and not disclosed, as discovery rules require, before the Master of the Supreme Court.

MR RAYNER: We did not have discovery. There was no discovery. This all took place - we filed an application for discovery.

HIS HONOUR: What was the duty of the Bank to provide more than it did?

MR RAYNER: There is a duty to the court under established rules of Order 14 to provide on affidavit documents verifying the cause of action.

HIS HONOUR: They said that you owed them money on the mortgage. That was all they had to establish. They did not have to come and provide all the material. It was for you. If you said, "Well, this was mistaken", it would be in your case that you would have to present the material relating to the monthly repayments and the social security payments that had altered the position. After all it was you who were repaying the amount and receiving the social security, not the Bank.

MR RAYNER: Yes, I understand that point, but the point is, as I understand it in Fancourt v Mercantile Credits, the Court said it is the person or the party bringing the application who must make out there is no defence, not the party resisting it.

HIS HONOUR: I can understand that principle but normally the law looks to the party who is in the best position or who has the access to or control over the relevant evidence to place that evidence before the court if it considers that evidence to be relevant. You were propounding a suggestion that the Bank was manipulating income levels. You mentioned to me what you said was the failure to disclose some interview or loan interview, is that correct? Where do I find that document?

MR RAYNER: That is page 28 of the applicants' book of documents.

HIS HONOUR: Yes. I have page 28 in the applicants' book of documents. What is the point here? Just take me to what you say is your critical objective evidence that indicates that the Bank was being duplicitous, was not being candid to the court.

MR RAYNER: In the interview notes it starts off:

client is endeavouring to obtain full time employment . . . however - - -

HIS HONOUR: Is that correct?

MR RAYNER: At that point of time, yes.

HIS HONOUR: Yes, very well.

MR RAYNER:

nothing permanent has arisen.

The next paragraph:

the karate business is rated as leisure time activity . . . due to operating hours being late afternoon/evening and weekends. This means that the client is eligible for Job Search allowance.

The only reason you become eligible for Job Search allowance is if you are not making any income.

HIS HONOUR: Maybe you were not making any income or maybe you told the Bank at the time that you were not making any or much income from the karate business.

MR RAYNER: Then where was the income to pay the loans? These loans that were supposed to be freely entered into, they were going to cost $1,308 per month on an income of $1,200 - $1,225.20 per month.

HIS HONOUR: You are blaming the Bank that they lent you money when you say that they should not have lent you money.

MR RAYNER: No, what I am saying to you, your Honour, is that they took unconscientious advantage of the situation at that time to secure the mortgages. The Bank has never been cross-examined on these issues, discovery has never been afforded to the defendants, nothing. There are interests here of immense public significance, ones that are entered into - - -

HIS HONOUR: You say that but it just looks to me as though it is a case where you went to the Bank asking for money. The Bank - - -

MR RAYNER: No, that is not correct. No, that is correct. There was negotiations on - - -

HIS HONOUR: Well, the banks do not normally walk down the street and give money to people who do not want it. Normally people have to go and ask for it and this is not - - -

MR RAYNER: As I said to you - - -

HIS HONOUR: These are records - this page 28 appears to be interview notes concerning whether or not you would be a fair risk from the point of view of the Bank, is that correct?

MR RAYNER: That is exactly right. So where do they establish the fair risk? There is not enough income to meet the loans but we are going to press ahead with the loan. As you say, banks do not go waltzing down the street looking for somebody to lend money to. They want to be repaid. So what was going on here? There was no money to pay the loans - - -

HIS HONOUR: But would it not be open to the Master to say, "If you have an interview with the Bank asking them to lend you some money and you subsequently come along and say, `They shouldn't have lent me some money', that really it is a little bit inconsistent on your part." You are asking for the money and then when they give it to you, you say, "Well, you shouldn't have given it to me and therefore I won't pay it back."

MR RAYNER: No, I am not saying that at all. What I am saying is at that particular time there was a District Court action going on, there was a Supreme Court action going on, they were harassing, intimidating, threatening, abusing, and then they said, "If you want to fold your loans up, we will stop this behaviour." But, of course, if you have money, you can do that. Obviously that is an important legal principle that if you have money - - -

HIS HONOUR: Did you put that proposition to the Master? Did you say that you were being - - -

MR RAYNER: As far as I remember, I did.

HIS HONOUR: Did you say that you were being harassed and intimidated?

MR RAYNER: Yes, I did. Yes, I did. It is in the Master's reasons.

HIS HONOUR: On the face of things, Mr Rayner, you have had your day in court. I mean, people - - -

MR RAYNER: Correct, and he has rejected that day in court - - -

HIS HONOUR: Exactly.

MR RAYNER: - - - because of the deponent's affidavit which led him to a wrong decision. If that is okay by the High Court, then I have to accept that it is okay for a respondent - big, powerful, lots of money - to mislead the court to get its outcome. Fine.

HIS HONOUR: It is a matter of whether or not they - as I understand it, the Bank does dispute that it misled the court and so far nothing that you have shown me indicates that it did.

MR RAYNER: It says in the paragraph that the payments were made regular and in another affidavit a year later they say, no, it was not. The account was always in strife.

HIS HONOUR: This is just factual material. Is there anything else on that page 28 that you want to draw my attention to? Nothing in that page seems to rise to the point that there is deception on the part of the Bank to the Master.

MR RAYNER: If I can go to page 30 of the same book and go down to paragraph 8 of the loan approval letter:

Confirmation of Job Search allowance or equivalent income on an ongoing basis -

and in handwritten notation:

Verbal confirmation received by Mel Hollis from DSS, 13.4.1992 -

the date the loans were settled which you can see from the statements of account in the second affidavit of Carolynne Pamela Woods.

HIS HONOUR: Yes. So that means that you did, notwithstanding the karate business, make some form of application for benefits from Job Search, is that correct?

MR RAYNER: No, that says that the payments were being received, that there was no income from the karate business at that time and that the sole income as checked by the Bank at that time would have been those payments, 1,225 to service a $1,308 per month debt. They knew we could not make it and they kept that from the Master.

HIS HONOUR: But that is not inconsistent with what they say in the interview notes: this means client is eligible for Job Search allowance. It merely confirms that they did not think much of the karate business, that they knew you were eligible for Job Search allowance, that they went ahead and checked whether you had been receiving Job Search and they found that you had and they, on that basis, lent you the money that you asked them to lend you and you are now coming along and complaining that they lent you the money.

We see quite a lot of cases and I have to say cases concerning banks and people go to banks, they get money and then they want to come along years later and complain that the banks have lent them the money. It does not seem to be very rational to me.

MR RAYNER: If we are talking rational, who lends money to a person who cannot repay it?

HIS HONOUR: If you go along to a manager and you put forward the various interests that you have - and sometimes people - you have a motor vehicle there and you have other questions of schools, projections - - -

MR RAYNER: That is all they are, your Honour, projections, speculative. There is no basis for lending money on those bases.

HIS HONOUR: I just do not understand how you can come to this Court and complain about the fact that some money was extended to you and that you are saying, "Well, they shouldn't have extended it to me."

MR RAYNER: Exactly. How can you lend money to a person who cannot repay it and then call that a legitimate loan, a conscionable loan?

HIS HONOUR: That means every time anybody receives money from a bank, that that person says - that is defaulted and that person says, "Well, I couldn't afford it", that you can walk away from your obligations to the bank. It does not seem to be very just.

MR RAYNER: No, I am not saying that at all. If you go to a bank and you show that you can afford it when you take the loan out, that is one thing. If circumstances change, interests rate rise, you lose your job, that is unfortunate and I would accept that. What we are saying here is this whole transaction was a sham. There was no way on the paperwork - - -

HIS HONOUR: Yes. Well, I think you put that before the Master.

MR RAYNER: No, I did not. All I had - - -

HIS HONOUR: Well, he passage you read me at paragraph 10 on page 73 of the applicants' book indicates that you said the Bank breached its lending criteria by manipulating your income levels. So you put the issue up - - -

MR RAYNER: That is correct, and the Master rejected that on the basis that the payments had been made regularly until 1998. He did not know - nobody did. That is the thrust of the whole argument. If that had been before him, a different outcome would have been most likely. He did not have that. He had a paragraph in my affidavit and he rejected that because the deponent's affidavit in support of summary judgment clearly infers that payments were made regularly from 1992 until 1998, and that is straightforward a lie.

HIS HONOUR: Where is that in the Master's reasons?

MR RAYNER: Paragraphs 2, 3 and 5 where he says that - I think in paragraph 5.

HIS HONOUR: Paragraph 5 - what page is that?

MR RAYNER: At page 56, 57. Now, he clearly says:

The defendants paid the instalments paid regularly until early 1998 and then the payments ceased.

That is completely wrong.

HIS HONOUR: I cannot find that - I have the paragraph but where is it in that paragraph?

MR RAYNER: This is in the Clark Whyte's - - -

HIS HONOUR: Page 56, is it? Yes, I have the Master's reasons. It is paragraph 5. I have that.

MR RAYNER: Yes, the bottom of - - -

HIS HONOUR: Where in that paragraph is this statement?

MR RAYNER: The bottom of page 3, then turn over to page 4. It begins "The" on page 3, then you turn over, it goes:

defendants paid the instalments regularly until early 1998 - - -

HIS HONOUR: Yes.

MR RAYNER: He did not have the relevant information, nor did we, not for the summary judgment application.

HIS HONOUR: But what would it have mattered if you had not paid them regularly?

MR RAYNER: Well, then the Master would have been aware of the income ratios and it would have supported the assertion in my own affidavit opposing summary judgment. That was they manipulated the income levels. This was all to do with the Supreme Court and District Court actions of that period.

HIS HONOUR: What were those actions about?

MR RAYNER: We had taken the actions because - - -

HIS HONOUR: This is against the Bank?

MR RAYNER: Against the Bank. If you go to page 61, paragraph 15, page 8 of the Master's reasons - - -

HIS HONOUR: Yes, I have that.

MR RAYNER: - - - at the bottom of that, and it says:

If the defendants were shocked on receipt of the letter of 20 January 1988 because it was based on a misrepresentation, then why not sue then for misleading and deceptive conduct?

And that is exactly what we have done and these loans were a consequence of the Bank trying to stop those actions and their intimidatory conduct, their oppression, their harassment never stopped, and if that is how you get a loan, then okey-dokey.

HIS HONOUR: Well, why did you take the loan?

MR RAYNER: Because we thought it was the only avenue open to us. We just could not take the pressure any more.

HIS HONOUR: Yes, but you must have known that you would have to pay the loan back. I mean, it was not a gift.

MR RAYNER: We do not say it was, but they knew and we attempted to meet the contracts but it was just overwhelming. They have taken unconscientious advantage of a superior position and if that is the law, if that is justice, then I suppose we just have to cop it sweet.

HIS HONOUR: Yes.

MR RAYNER: These were all issues that the Bank did not want to come out at a trial. That is why summary judgment was its best option. That is why it swore an affidavit that was clearly misleading.

HIS HONOUR: Yes, but the Bank may have taken the view - I do not know - that it had an original mortgage from you of 1988. That was renegotiated in 1992 and you executed the 1992 mortgage. That amounted to a fresh start and then - - -

MR RAYNER: No, it did not, your Honour. That is not quite right. In 1998 everything was discharged to the then Town & Country. We had a small overdraft with the ANZ at that time, because the ANZ and Town & Country were two separate entities. We disputed the debt which arose out of a Visa card account that was supposed to have been secured by the mortgage which was discharged and taken over by another lender. We disputed that debt for two years and the debt kept growing and growing and growing. They would not take action to cover a debt. Then another mortgage was entered into.

HIS HONOUR: Yes. Mr Rayner, does not this all illustrate that really your client could turn the High Court of Australia into a trial court?

MR RAYNER: No, your Honour.

HIS HONOUR: You are going into this mass of detail about the facts of the matter and it is contrary to the concurrent findings of fact of the Master and of the Full Court. The Full Court have considered your complaint. The only relevance of this to me is I am not now deciding the question of special leave. That will be decided by the Court. I am deciding whether or not you have a sufficient chance to get special leave that this Court would give you a stay in order to defend that application.

Now, when I look at the application, it really amounts to an attempt for you to get the High Court of Australia to go back into the primary court with Master Bredmeyer and ask, "If only he had had this extra material would he have reached a different conclusion?" To do that, you have to go into a whole mass of factual evidence and I just have to tell you that I just do not see the Court doing that.

MR RAYNER: No, I am not really saying that. But what I am saying to you, sir, is - and I am reading here - "the one possible exception is when what is challenged is the proper inference to be drawn from facts clearly ascertained." Now, these facts were then before the appeal court: the income, the documents missing - all these facts - the procedure of Order 14, how it should have been proceeded with in the Master's court. These were all before the appeal court. It is the proper inference to be drawn from facts clearly ascertained so far as they are relevant to the decision to be pronounced. We are saying that this is not a matter that should be in this court.

HIS HONOUR: Would you just identify the facts that you say would have made all the difference before the Master.

MR RAYNER: Well, what I am saying is the Master did not have them. The Full Court did.

HIS HONOUR: I know that, but you identified, I think, earlier three facts, that if only the Master had had them, would have led him to come to a different conclusion. Now, what are those facts?

MR RAYNER: The income - - -

HIS HONOUR: Where do I find the income position? That was your income?

MR RAYNER: That was the social security payments. That was an annexure to the affidavit - - -

HIS HONOUR: Something known entirely to you. Something known entirely to you and your wife.

MR RAYNER: Not at the Master's hearing, it was not.

HIS HONOUR: How do you mean it was not? It was your wife who had received it.

MR RAYNER: But we did not have the statements at that time. We had to go back to the Bank to - - -

HIS HONOUR: So you demanded that the Bank should go and produce to the Master your wife's private social security payments? I mean, that is absurd.

MR RAYNER: No, I am not saying that.

HIS HONOUR: If you regarded that as relevant, then you were in the best position - or rather your wife was in the best position to put that before the Master. If you did not do so, it is your lookout. What was the second factual matter? The second factual matter I think was the record of the discussion with the bank manager concerning the income level and karate business. That is at page 28 of the applicants' book. Is that correct?

MR RAYNER: Yes, and the third part was to page 30, the internal copy of the loan approval. That is paragraph 8.1.

HIS HONOUR: And the fact that they had made a verbal confirmation with Job Start - Job Search?

MR RAYNER: The fact that they had made that verbal confirmation and they knew that there was insufficient income to meet the repayments of the loan.

HIS HONOUR: Yes, very well. Well, I think I - - -

MR RAYNER: You cannot get the Job Search if you are making money. So you have to satisfy Job Search that there was no other income to be eligible for that payment and, therefore, at that point in time the income that was coming into the house was almost $100 less than the repayments due to go out. That was a fact kept from the Master. It was a fact put before the appeal court. I do not know why they did not do anything about it, but I think that the proper inference from that was that the loan was not conscionable.

HIS HONOUR: Yes, very well. Well, I think I understand what you are saying. You say that is the basis on which the High Court would intervene in order to send the matter back to be reconsidered at first instance on the basis that the Master had before him these factual elements, these three factual elements, is that correct?

MR RAYNER: That is correct, and also, your Honour, there is another matter and that is that we were not able to prove, because we could not get the documents from the Bank, that the loans had been varied during the term of the loans and that if those loans had been varied, then those variations would have been caught under the umbrella of the UCCC and that would have thrown up section 70(2)(i). There is an unjust transaction.

HIS HONOUR: What was the number of that section?

MR RAYNER: Section 70(2)(i), I think it is.

HIS HONOUR: This is of the Trade Practices Act 1974 , is it?

MR RAYNER: No, this is the Uniform Consumer Credit Code.

HIS HONOUR: Yes. Is that section in my compilation here?

MR RAYNER: I think it is referred to in the document. I am not sure where.

HIS HONOUR: It might have been referred to by the first Full Court.

MR RAYNER: It is. They say that there is nothing in the Uniform Consumer Credit Code, but if the court had taken into consideration the income levels and if the court had taken into consideration the difficulty in the loans and that the loans had been varied by the lender and those variations were then caught under the umbrella of the Consumer Credit Code, then section 70 would apply and that is - - -

HIS HONOUR: Now, was the Master was asked to consider this issue?

MR RAYNER: To be completely honest, I cannot remember.

HIS HONOUR: I am looking through the Master's reasons now and I do not see any reference at all to the Uniform Consumer Credit Code. I may have missed it, but I cannot see any.

MR RAYNER: I honestly cannot remember, but that section - - -

HIS HONOUR: I see a reference to the Trade Practices Act and misleading and deceptive conduct but not to the Consumer Credit Code and if you do not raise it before the Master, you can really hardly complain that he did not deal with it.

MR RAYNER: No, I am not complaining about the Master. I am saying it was raised at the appeal.

HIS HONOUR: Yes, but appeals are not to fix up mistakes of presentation of issues at trial. They are to fix up errors that are made at trial in the way the case is was presented and if you do not present it - - -

MR RAYNER: But all there was was a short hearing.

HIS HONOUR: - - - you cannot really say that was an error. I do not know, but I do not imagine that an appeal to the Full Court of Western Australia from a decision of a master in such a matter is a complete rehearing. It is an appeal to correct errors.

MR RAYNER: Well, I was under the impression it would be heard as a rehearing and that under Order 63 10, I think it is they have the power to draw an inference which I think they have not done either, and that connects to that point that I made before about the proper inference to be drawn from the facts - - -

HIS HONOUR: Yes.

MR RAYNER: - - - and the issue of the way that the summary judgment application was proceeded with in the first instance. Section 70(2)(l) says:

whether at the time the contract, mortgage or guarantee was entered into or changed, the credit provider knew, or could have ascertained by reasonable inquiry of the debtor at the time, that the debtor could not pay in accordance with its terms or not without substantial hardship - - -

HIS HONOUR: Yes.

MR RAYNER: - - - and on that basis the court may enter into the contract and make adjustments and set it aside if it think it is an unjust contract. They had made all the necessary investigations. They knew the contract was unjust. They knew it could not be met. As you said yourself, banks do not go waltzing down the street looking for people to make loans with. They want to be sure they are going to be paid - - -

HIS HONOUR: Yes.

MR RAYNER: - - - and in any event why was this not put before the court?

HIS HONOUR: All right. Well, I think I understand what the essence of your case is. I think at this stage I will hear what Mr Hawkins has to say. Have you covered most of the points that you wanted to cover in oral argument that are not dealt with sufficiently in the written material that you placed before me?

MR RAYNER: No, I think that is everything. I just wanted to go to my own summary of argument - - -

HIS HONOUR: Yes. I have that before me.

MR RAYNER: - - - which is listed under paragraph 4 and maybe paragraph 5.

HIS HONOUR: This is on page 7?

MR RAYNER: It is just running through the matter of summary judgment applications being made pursuant to Order 14 of the Rules of the Supreme Court. We touch upon the ultimate burden of proof rests with the applicant, and I think that is a very relevant issue. I have touched upon Fancourt which says that it is on the party making the application, not the party resisting it. I also would like to say that Order 14 states that summary judgment should not be granted where there may be disputes as to facts of law, questions which ought to be tried, some other reason for trial or where a defendant has simply shown enough to entitle him or her to interrogate the plaintiff. All these issues were kept from the court; from the Master's court.

HIS HONOUR: You say they were kept from the court, but, for example, in the case of your wife's social security benefits, I have a recollection that the social security legislation treats those as private to your wife and not within the knowledge of the Bank. So if that is the case, you can really hardly complain that the Bank did not know or investigate your wife's social security payments. Had they done so, you might have been here complaining.

MR RAYNER: No, they did. They noted it on the internal document. The internal copy of the Bank's loan approval says, "Verbal confirmation received by Mel Hollis from DSS". They knew what the level of repayment was and they knew the loan simply could not be met.

HIS HONOUR: That was the third document you referred me to, is that correct, the document at page 30?

MR RAYNER: That is correct.

HIS HONOUR: That does not reveal the amount of the social security payment. That merely indicates that they got in touch with Job Search.

MR RAYNER: That may be so, that may not be so. We do not know what they were aware of and we have never had the chance or the opportunity to cross-examine to find out.

HIS HONOUR: I just find it a little bit rich that you are suggesting that they should have searched out your wife's social security payments when this would have been within your knowledge and the knowledge of your wife and that you come along complaining that they should have disclosed that.

MR RAYNER: No, I am saying that they knew at the time the loans were settled that the sole income was that Job Search amount. They had gone to the trouble to check it and if they did or they did not know, at least - - -

HIS HONOUR: That relates to your wife, does it, not to yourself?

MR RAYNER: It relates to the family. It is a family payment.

HIS HONOUR: Yes, but it is made in respect of a social security claim by your wife or by you?

MR RAYNER: I was on Job Search but the payment was paid simply to the wife as the primary caregiver of the family. This is how it was done at the time.

HIS HONOUR: I follow.

MR RAYNER: That is the income we were living on. That is the income that we were relying on to meet these loans. This was information that was not provided to the Master. It was facts put before the Full Court which, for whatever reason, they have not inferred anything from.

HIS HONOUR: According to this document at page 28, when you went to the Bank you were quite optimistic about building up the karate business.

MR RAYNER: I do not think banks lend on optimism; I think they lend on hard figures.

HIS HONOUR: They sometimes are convinced by clients that things are going to look up. Nobody knows the future.

MR RAYNER: I could not agree more.

HIS HONOUR: It says here, "Optimum income is $157000".

MR RAYNER: It says, "Sale of franchise rights", might sell "5 franchises"; "Special school courses", might get "10 courses", might not. How do you place a loan on that of $130,000 something in 1992? Surely you would need something a bit more concrete than that and, if you did have that, you would put it before the Court for summary judgment application.

HIS HONOUR: Thank you very much. I understand the general way in which you put the case. I will ask Mr Hawkins a few questions now. Mr Hawkins, what do you say in relation to the suggestion that if only the Master had had this added material, he would have reached a different conclusion and that your client owed a duty as the applicant for summary judgment to place this material before him?

MR HAWKINS: Your Honour, if I can address the duty aspect first. What the applicant, Mr Rayner, is saying is that the Bank had the obligation to put before the Master all the material the Bank had had before it when it decided to grant the loan or accept the two mortgages. That amounts to a confession and avoidance defence by Mr Rayner. He must confess the mortgage and then seek to avoid the effect of the mortgage by putting that material before the Court. It is not for the Bank to put that material before the Court even if one assumes that the material as stated by Mr Rayner today is accurate.

The second point is that, as the Master and the Full Court both recognised, any such claim was time-barred. The statute of limitations had well and truly expired, if what Mr Rayner said took place had in fact taken place in 1992.

HIS HONOUR: What is the relevance of that time interval?

MR HAWKINS: The limitation period under the Trade Practices Act is three years. That limitation period expired in 1995 and the Bank took steps to enforce the mortgage in 1999. Any complaint that the Rayners had about the Bank's conduct was no longer open to them under the Trade Practices Act.

HIS HONOUR: Is that provision of the Trade Practices Act applicable to the use of a breach of the Act as a defence as distinct from prosecuting it as a substantive claim? What is the language of the Act?

MR HAWKINS: I do not have the Act with me, your Honour, but in my submission the unconscionable conduct so-called by the Bank is something that would have had to have been raised by the defendant as a counterclaim to have the mortgage set aside under section 87 of the Trade Practices Act and the Act has a three-year limitation period.

HIS HONOUR: Yes.

MR HAWKINS: As regards the Uniform Credit Code, that did not come into force in Western Australia until 1996 and so the Code was irrelevant to the making of the mortgage in 1992.

HIS HONOUR: That Code attaches, does it, to the extension of credit?

MR HAWKINS: Yes, as from November 1996 it applied to loans by banks or building societies. Before then the Western Australian Credit Act did not apply to loans by banks or building societies.

HIS HONOUR: Yes.

MR HAWKINS: The third point relevant to the application before you, your Honour, is that, as appears from what Mr Rayner has said today, all this material was put before the Full Court, considered by the Full Court - - -

HIS HONOUR: That was the first Full Court, was it?

MR HAWKINS: Yes, the first Full Court.

HIS HONOUR: That is to say the Full Court which dealt with the merits of the appeal on 16 October 2001 and reached its decision and published its reasons and orders on 7 December 2001, is that correct?

MR HAWKINS: Yes, your Honour, and the relevant passages are on pages 26 and 27 of the respondent's book in his Honour Justice Anderson's reasons for decision from paragraph 8 to paragraph 17.

HIS HONOUR: What page of that book is it?

MR HAWKINS: Page 26. I apologise for the numbering, your Honour. If your book is like mine, the number is practically non-existent.

HIS HONOUR: Yes, 26, is it?

MR HAWKINS: Yes.

HIS HONOUR: Yes.

MR HAWKINS: From paragraph 8 to paragraph 17 on page 27.

HIS HONOUR: Yes, very well.

MR HAWKINS: The Full Court in March 2002 also considered the arguments, as appears at page 19, paragraphs 11 to 13 of her Honour Justice Wheeler's decision.

HIS HONOUR: That is page 19 of the respondent's compilation?

MR HAWKINS: Yes.

HIS HONOUR: Yes.

MR HAWKINS: Where that court considered whether or not it should review the earlier Full Court decision and decided that it should not.

HIS HONOUR: Yes.

MR HAWKINS: And it was also considered by his Honour Justice Wallwork on the second of the applications to the Full Court for a stay. It was heard - - -

HIS HONOUR: Is this the one on 19 June?

MR HAWKINS: Yes, 19 June.

HIS HONOUR: That is the third Full Court decision?

MR HAWKINS: That is - yes. There are no reasons from the fourth Full Court decision.

HIS HONOUR: Yes, very well.

MR HAWKINS: But his Honour at pages 8 to 10 in paragraphs - - -

HIS HONOUR: Where do I find that?

MR HAWKINS: In the respondent's book of documents.

HIS HONOUR: What page?

MR HAWKINS: Pages 8 to 10.

HIS HONOUR: Yes.

MR HAWKINS: His Honour had summarised what had been dealt with before and in paragraph 20 concludes that:

Nothing advanced to this Court has persuaded me that the decision of the Master is affected by material error in fact or law.

HIS HONOUR: Yes.

MR HAWKINS: The short submissions to be made on behalf of the Bank is that there is no material before your Honour on which your Honour could conclude that the applicants have a prospect of success in an application for special leave.

HIS HONOUR: Yes. Do you have any idea when the application is likely to be heard?

MR HAWKINS: No, your Honour, I have not.

HIS HONOUR: I understand that the Registrar in Sydney has some information on that, so I will just ask what the information is. I am informed by the Registrar in Sydney that the position is this, that the matter has not been assigned to the Perth list that is going to be heard in late October 2002. That is because apparently the summary of argument by the respondent has only recently been filed. The application book with any reply by the applicants has not yet been filed and, accordingly, the matter is not in a position at this stage to proceed. Presumably, if the parties co-operated, it might be in a position that the application book could be got ready.

The position is that the matters which are listed are - the matters which are presently contemplated for hearing in the Perth list are matters which have an earlier date than this one in the High Court list and, therefore, in the ordinary course this matter might not be reached unless the parties completed their documentation and they made some representations to have the matter heard in the October list.

MR HAWKINS: Yes, your Honour.

HIS HONOUR: That, as I understand it, is the position as far as the Registry is concerned.

MR HAWKINS: Yes.

HIS HONOUR: Very well. Do you want to say anything else?

MR HAWKINS: Yes, your Honour. Mr Rayner has mentioned from the Bar table Supreme Court and District Court proceedings that preceded the entry into the mortgage.

HIS HONOUR: Yes.

MR HAWKINS: If I may, the District Court proceedings were proceedings by Mr Rayner in which he claimed that there had been misleading and deceptive conduct by the Bank. The Supreme Court proceedings were proceedings for possession of the property pursuant to the mortgage.

HIS HONOUR: That was under the 1988 mortgage, was it?

MR HAWKINS: No, I think it may have been the 1990 mortgage - I will have to take instructions on that - but on the mortgage that was then on foot. But, your Honour, the Visa card debt was, of course, a debt that was then presently due and payable in full and the effect of the mortgage has been to give time for the payment of that debt.

HIS HONOUR: Yes, but no doubt the Bank is continuing to accrue interest on the debt.

MR HAWKINS: Yes.

HIS HONOUR: But do I understand that what happened then was that those mortgages were discharged in exchange for the mortgage of 1992, which is the subject of the current proceedings? Is that a correct understanding?

MR HAWKINS: Yes, two mortgages in 1992 and, your Honour, it is to be noted that - - -

HIS HONOUR: I understand that the essence of the applicants' case is that they had proceedings against the Bank, the Bank had proceedings against them. Essentially these were settled or dealt with by a consolidation of the mortgages. New mortgages were granted in 1992, that they were granted on terms which the Bank knew or ought to have known the applicants could not discharged and that on that footing they were, in a sense, forced into an unconscionable or unfair contract in the form of the 1992 mortgages and that if only the Master had had the three items of information, he would have come to that conclusion and not have entered the order for possession - not have given summary judgment on the order for possession.

MR HAWKINS: Yes, your Honour.

HIS HONOUR: Is that how you understand the applicants' case?

MR HAWKINS: Yes, I do. Your Honour, that case was the put before the Full Court and the Full Court rejected it and - - -

HIS HONOUR: Yes. Well, you say that the Master rejected the case; that there is no substance in the three points of evidence; that they would have not tipped the balance; that when the matter was argued before three successive Full Courts, on each occasion, and particularly in the first Full Court, they considered the factual matters and they rejected the contentions; there are concurrent findings of fact at both levels of the Supreme Court of Western Australia and that it is not to be reasonably anticipated that the High Court of Australia would get itself involved in such a dispute?

MR HAWKINS: Yes, your Honour, but your Honour puts it better than I could.

HIS HONOUR: And that if the High Court would not grant special leave, then the exceptional circumstances in which a stay would be granted by the High Court to defend the right to special leave is knocked away?

MR HAWKINS: Yes, your Honour.

HIS HONOUR: Yes, very well. I understand that.

MR HAWKINS: Thank you.

HIS HONOUR: Yes. What do you say in reply, Mr Rayner?

MR RAYNER: Simply that the application for special leave has not been heard. I would accept that the grounds are a little bit vague but I could understand that there is amendment facility open that I can amend those grounds and put more substance into them. I believe that the Full Court of the Supreme Court did not look at the evidence properly and that this matter should be sent back to the court below to be heard and determined according to the law and that the proper inference from the facts that were available to the court to be considered as they stand.

HIS HONOUR: Yes.

MR RAYNER: That is all I ask and I think that the stay should be granted. If your Honour wants to make certain directions or orders - I am not sure how this Court works - as to get this matter motivated and get it running through the Court. If at the end of the day it is knocked back, it is knocked back. I do not mind that. I just think the judicial process should be allowed to run its course and that a litigant in person should be granted that opportunity. I do not have anything else to say, thank you.

HIS HONOUR: I have before me an application for a stay of execution of a judgment entered in the Supreme Court of Western Australia. The stay is sought in support of an application to this Court for special leave to appeal. That application has been filed by Mr David Rayner and Mrs Susan Rayner ("the applicants") naming the Australia and New Zealand Banking Group ("the Bank") as the respondent to their application.

Application for special leave and a stay

The grounds of the special leave application are before me. They provide:

"i. The Intermediate Appellate Court has failed to determine

tenable grounds properly raised before it.

ii. The Judgement is erroneous in point of Law.

iii. The Judgement throws up a difference of opinion between or

within the Lower Courts as to the state of the Law."

The grounds, as so stated, are, as Mr Rayner has conceded, vague. At least in terms of those grounds, I think it unlikely that special leave would be granted by this Court. It is a requirement of the rules that grounds of appeal must be stated with particularity and specificity, not only for the benefit of the respondent to an application and appeal but also for the Court itself. See High Court Rules Order 70 r 2(f). However, for the moment I will pass that problem by.

Mr Rayner has appeared in person to argue for the stay. He did so with the consent, and at the request, of his wife. No objection was raised by the Bank to his appearing for her. I have heard him at length in support of the written documents which he filed. Those documents were filed pursuant to an order that I made on an earlier occasion. On that occasion, the matter was not ready to proceed. Without providing an interim stay, I adjourned the proceedings under conditions that Mr and Mrs Rayner supply the Court with all the documents that they claimed to be relevant to their application. I have listened closely to the arguments that Mr Rayner has put on behalf of the applicants today.

It is, of course, a serious matter to refuse a stay where a consequence may be that a person, and that person's family, are liable to be removed from their home. That, as I take it, is the fear that has brought Mr Rayner before me. I take that concern into account. I understand the anxiety that lies behind the application for the stay. However, I am obliged, in considering a stay, to conform to the law.

Criteria for the provision of a stay

The fundamental principle governing the provision of a stay by this Court is stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 at 685. His Honour said:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

Applying these remarks, in Bryant v The Commonwealth Bank of Australia (1996) 70 ALJR 306 at 308, I said:

Repeatedly, the Court has emphasised that the jurisdiction to grant a stay is exercised only in very exceptional circumstances. It is "extraordinary".

I would accept that the applicants have exhausted all of the steps that they could reasonably take to seek a stay in the Supreme Court of Western Australia. I would also accept that the provision of a stay would cause some loss to the Bank although, in the large picture of this litigation, which goes back many years, the marginal loss to it would not be great. However, the essential question is whether there is a substantial prospect that special leave will be granted. It is to that question that I now address myself.

Complaints about the decision of a Master

The applicants' principal complaint is against the decision at first instance. That decision was given in the Supreme Court of Western Australia by Master Bredmeyer. The Master was asked to enter summary judgment. After hearing Mr Rayner, who appeared in person before him, he entered summary judgment in favour of the Bank. In doing so, he referred to the long history - he described it as "ancient history" - of the disputes between the Bank and the applicants. These disputes went back to mortgages that preceded the mortgages upon which the Bank was moving before the Master for summary judgment and an order for possession. Those mortgages were first entered in 1988 and in 1990. As a consequence of differences between the parties in relation to those early mortgages, there was litigation, both in the District Court of Western Australia and in the Supreme Court of that State. Subsequently, those proceedings led to the execution of two new mortgages in 1992. Those mortgages were the subject of the proceedings before the Master.

It is the Bank's conduct in extending the credit facility that was secured by those mortgages that is the subject of the application by the applicants to this Court. In short, the applicants contend that the Bank breached the law in extending the 1992 mortgages in two respects: first, by entering into contractual arrangements that were misleading, deceptive and unconscionable; and, secondly, by entering into a credit arrangement that was contrary to the Uniform Consumer Credit Code.

So far as the second complaint is concerned, there is no mention of this in the reasons of the Master. This is because it was first raised before the first Full Court that later heard the appeal from the Master's decision. However, having regard to the commencement date of the Uniform Consumer Credit Code, it appears to be irrelevant to these proceedings. Moreover, not having been raised before the Master, it is not a matter that it is conceivable that the High Court of Australia would enter upon, effectively for the first time, by providing a grant for special leave on that ground. I say this assuming that the present grounds were amended to raise such a point, which, at the moment, they do not. I can, therefore, disregard entirely the complaint concerning the Uniform Consumer Credit Code.

However, that leaves a matter which was undoubtedly raised before the Master, namely, the alleged breach of the Trade Practices Act (Cth), and the complaint that the conduct of the Bank was unconscionable, misleading and deceptive. In respect of that complaint, the Master gave his reasons for rejecting it, for awarding summary judgment to the Bank against the applicants and for making an order for possession. In that sense, on that issue, the applicants had their day in court.

Three proceedings in the State Full Court

The applicants were not content with the way in which the matter had been dealt with by the Master. Defending the possession of their home, they sought to appeal to the Full Court of the Supreme Court of Western Australia. Remarkably enough, the applicants took their case to the Full Court on no fewer than three occasions. I have had placed before me, without objection, the reasons of the Full Court on each of those occasions.

The first occasion was in late 2001. This was the first Full Court. The first Full Court comprised Murray and Anderson JJ and Einfeld AJ. Having heard argument on 16 November 2001 on the merits of the appeal from the Master's orders, the court, on 7 December 2001, unanimously rejected the appeal. The stay, which had been provided in the interval (upon certain conditions which do not appear to have been fully complied with) was then at an end. The applicants immediately indicated that it was their intention to seek special leave to appeal from the Full Court's judgment.

In the first Full Court, because the Full Court was there dealing with the merits of the appeal from the Master, there was considerable attention to the issues that have been canvassed before me today. Suffice it to say that the Full Court was not convinced that the Master had erred in his decision. It rejected the appeal. It thereby confirmed the Master's orders in favour of the Bank, including the order for possession.

Nothing daunted, on 20 March 2002, the applicants applied again to the Full Court for a review of the earlier decision. I have not explored the foundation of this application. However, it led to a sitting of the second Full Court. This was comprised of Anderson, Wheeler and Miller JJ. In the second Full Court there was a further canvassing of the issues that have been debated before me today. Again unanimously, the second Full Court rejected the application for a review. It also confirmed the decision of the first Full Court.

Still undaunted, the applicants applied to the Full Court on 19 June 2002. On the third occasion, the Full Court was constituted by Wallwork, Murray and Parker JJ. This was an application for a stay from the Full Court of the orders of the Supreme Court pending the hearing and determination of the application for special leave to appeal to this Court. The third Full Court was unconvinced that there were reasonable prospects that the application for special leave would be granted by this Court. According, the stay was rejected.

When the matter came before me on the last occasion and today there was no stay operating by force of any order of the Supreme Court of Western Australia or of this Court. It is to cure that deficit, pending the hearing of the special leave application, that the applicants have now moved this Court.

Complaint of failure to produce evidence at trial

The argument of the applicants was that, before the Master, the Bank had failed to produce and tender three documents or connected material relevant to the decision which the Master had to make. It was argued that, had the Master only received the three items as evidence, the decision which he made would have been different, or should have been different. No oral evidence was given before the Master. In this sense, this is not a case where credibility findings would be determinative of the outcome of the matter. Accordingly, the case must be tested against the approach to appellate reconsideration of fact finding explained by this Court in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306, eg at 327-330 [88].

The applicants submitted that, in evaluating the prospects of a grant of special leave and the application for a stay that was attached to it, I should consider the three items of factual evidence. It was argued that I would perceive them as critical for the point in this litigation at which the judicial decision making originally went wrong. The three items of evidence are, first, evidence of the social security payments received by the applicant and his wife as a family payment at the time of the negotiation of the 1992 mortgages. Secondly, the applicants rely on a Bank file note which has come to light since the Master's decision concerning the income flow of the applicant in a karate business. It is said that the record of social security payments and the file note reveal, as the applicant was contending before the Master, that the income flow to sustain the mortgages executed by the Bank was missing in this case. The Bank should therefore have been aware of this. Being aware of it, its actions were to be regarded as unconscionable and in breach of the Trade Practices Act.

Thirdly, there is another file note which indicates that an officer of the Bank checked on the income level of the family with Job Search, an agency in the Department of Social Security. This check, it was said, was sufficient to permit the inference to be drawn that the applicants, had an insufficient income to sustain the mortgage arrangements which the Bank entered with them. It was suggested, although the evidence before me does not elaborate this point, that the applicants had only entered into the 1992 mortgages because of the pressure to which they were subjected by their past dealings over many years with the Bank, their desire to extricate themselves from their past difficulties, to conclude uncongenial litigation and to cure problems that had arisen because of illness in the family.

I pause to say that, assuming, again, that the application for special leave to appeal could be amended to raise with greater particularity the arguments of the kind that have been elaborated before me today, it seems unthinkable that the High Court of Australia would become involved in an appeal raising such issues. Normally, a final court - and not only in this country - treats concurrent findings of fact at the trial level and in the intermediate appellate court as conclusive of such questions: Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 at 633-635. It takes a truly exceptional case to secure a third level of judicial consideration. This is, in part, because of the experience of the courts that it is unlikely that two levels of judicial decision making will commit a critical mistake on factual determinations and on the drawing of inferences from facts. In part, it is out of a simple recognition of the limited time that is available to a final appellate court to review factual determinations made at trial and in the intermediate court of appeal.

The SRA Case demonstrates that, very occasionally, on the basis of clear and objective evidence that contradicts fact-finding at trial, this Court will, notwithstanding the rejection of an appeal by the intermediate court, intervene because of its duty to ensure against miscarriages of justice and so that the administration of justice is properly carried on throughout the Commonwealth. I have carefully considered the possibility that, if they could get their application in order, the applicants could propound critical factual errors of this kind.

Three difficulties in the propounded case

However, when I look at the three items of evidence that are put before me to sustain those possible arguments, all I can see are significant impediments in the way of this Court's granting special leave. It suffices to mention a number of those difficulties.

The first is the fact that the applicants' arguments have been fully considered by the Full Court of the Supreme Court of Western Australia. Not only have they been considered once but, directly or indirectly, they have been considered on three occasions. Having regard to the ordinary principles of appellate reconsideration, it seems most unlikely that this Court would enter upon what would be, effectively, a fourth appellate reconsideration of what is, after all, essentially a factual dispute.

Secondly, the question of whether the Bank was obliged under the rules governing applications for summary judgment to place the three items of material before the Master is not at all clear. It is by no means sure that such a question would be certainly answered in favour of the applicants. The Bank was not, as I would consider, in the position of a fiduciary, obliged to provide this information to the court. In any case, the information referred to, which concerns the income levels of the applicant and his wife, their social security receipts and the deposits and withdrawals from their bank account, are at least as much in the possession of the applicants as of the Bank. In the case of the social security payments, they are much more likely to have been known, or available, to the applicants than to the Bank. If the applicants considered that these materials were important for the submissions that they were placing before the Master, one might ask why they were not put before the Master by the applicants themselves?

Thirdly, the Bank has submitted that the three-year time limit which is provided by the Trade Practices Act protects it against the complaints now belatedly raised by the applicants under that Act. The impugned conduct said to be in breach of the Act (the negotiations of the mortgages the subject of the litigation) took place in 1992. If it were applicable, the three-year limitation period would have expired in 1995. The Bank did not take steps to enforce the mortgages until 1999. It was only at that stage that the applicants raised the claim under the Trade Practices Act in respect of the 1992 mortgages. Essentially, they would have had to rely on a counterclaim relying, in turn, on the Trade Practices Act, seeking relief as by the setting aside of the mortgages on the basis of a breach of the Trade Practices Act. The Bank says that, in these circumstances, the applicant would have to rely on breach of the Act that occurred well outside the time limit that was applicable. See the Act, s 87(1CA)

I will not finally determine this last matter of defence because I have not heard full argument on it. It would therefore not be appropriate for me to do so. However, it is enough to note that it provides a possible further hurdle in the way of the applicants in their endeavour to gain special leave from this Court.

Conclusion: no substantial prospect of success

I am not, of course, sitting in the panel of the Court that is to hear the special leave application. I am not, therefore, prejudging the question of whether the applicants will receive a grant of special leave from the Court. However, in terms of the grounds that have been propounded in the application itself and in the arguments that have been put before me today, I could not say that the applicants have a reasonable prospect of success in their application for special leave. Still less could I say, in the terms of Brennan J's statement in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited, that there is a substantial prospect that special leave will be granted. On the contrary, if I were asked now to judge the prospects of the grant of special leave, I would have to say that there is a substantial prospect that special leave will be refused.

Having come to that conclusion, the extraordinary circumstances which are required for the grant by this Court for a stay of execution of the judgment of the court a quo are not established.

Orders: stay refused

For these reasons, I dismiss the application. I order that the applicants pay the respondent's costs. I certify for the appearance in chambers of counsel.

Now, Mr Hawkins, you have asked that certain documents be removed from the record of the Court. I have not, I must admit, considered the paragraphs by paragraphs against your application because I only received the application shortly before I came into Court today. Do you wish to press the application for the removal of those paragraphs from the Court record?

MR HAWKINS: If I could have five minutes, your Honour?

HIS HONOUR: Well, I will just sit here until you have instructions because we have to keep the video link open.

MR HAWKINS: Thank you, your Honour. I have taken instructions and we will not proceed with the application.

HIS HONOUR: Thank you. Now, Mr Rayner, you, I suppose, would ask that the application for special leave be heard as quickly as possible?

MR RAYNER: Yes, I would, your Honour.

HIS HONOUR: Well, my understanding is that the list for the Perth sittings, which is in the third week of October, have not yet been finalised and that you now have the respondent's argument but we are awaiting your argument in reply. Can you get your argument in reply done quickly?

MR RAYNER: Yes, I can. Yes, we are ready to roll.

HIS HONOUR: When would you be able to file that?

MR RAYNER: Seven to 10 days.

HIS HONOUR: Make it seven days because it is not far to October.

MR RAYNER: Seven days.

HIS HONOUR: If you can get your reply in by seven days, then without formally ordering that the application be expedited, I will ask the Registrar in Perth to see whether or not your application cannot be advanced in the list and put before the Court in the October sittings. I take it, Mr Hawkins, you have no objection to that course?

MR HAWKINS: No, I do not have any objection to that.

HIS HONOUR: Yes. Well, that is the indication I will give, that upon the undertaking of the applicants that they will file their reply and that they will complete the compilation of the application book within 14 days in all, the Registrar should endeavour to include the application for special leave in the October sittings of the High Court in Perth. It is no guarantee but it is an indication that we will do what we can.

The Court will now adjourn.

AT 5.05 PM THE MATTER WAS CONCLUDED