Abriel & Ors v Australian Guarantee Corporation Limited & Anor S59/2001 [2002] HCATrans 582 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 2001

B e t w e e n -

RUDOLPH ABRIEL, VERA ABRIEL & PREMIER KNITS PTY LIMITED

Applicants

and

AUSTRALIAN GUARANTEE CORPORATION LIMITED and WESTPAC BANKING CORPORATION

Respondents

Application for leave to re-open

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 11.38 AM

Copyright in the High Court of Australia

MR R. ABRIEL appeared in person.

MR J.W.J. STEVENSON: I appear for the respondents, if your Honours please. (instructed by Henry Davis York)

CALLINAN J: I will mention that a superannuation fund for my benefit holds between 1000 and 1100 shares in Westpac, a parcel I would not have thought the value of which would be affected by the outcome of this case.

HAYNE J: Now, Mr Abriel, you, as I understand it, wish to appear on your own behalf and on behalf of your wife and the company, Premier Knits, is that right?

MR ABRIEL: That is correct.

HAYNE J: Your wife is, I believe, unwell. For present purposes, Mr Abriel, it may be sufficient, and I think better, if you have leave to appear of course on your own behalf and on behalf of the company but if we leave your wife's position simply to depend upon what happens with the other applicants. Now, Mr Abriel, we have several documents from you. We have your amended written submissions. We have, also, the document called "Oral Argument". So, we have those documents.

MR ABRIEL: Yes.

HAYNE J: You would proceed with what you wish to tell us, please. If you would not mind, Mr Abriel, if you would just come to the lectern because the proceedings are being recorded and that will assist that.

MR ABRIEL: Your Honours, I appear unrepresented, not for the want of trying. Unfortunately, I could not get a barrister to represent me. Your Honours, the important questions of law are the extent to which the rights of an unrepresented party should be explained and protected by the Court. In this case the failure to do so led to procedural unfairness to me and as a consequence I was denied justice. The primary judge did not tell me that I had to formally ask his Honour for my cross-examination of Mrs Bennett to continue. I also did not know that I could suggest to the primary judge that he was biased and not offend the court.

I am humbled and privileged to stand here before you to present my case for special leave to appeal to the High Court . While I welcome the opportunity, I deeply regret that it had to come to this. I did not want to go to the High Court, Federal Court or any court. As a matter of fact, the first 70 years of my life I was never inside a court.

In 1998 we went to mediation with Westpac AGC to settle a long drawn out dispute. I was prepared to make very substantial concessions in order to achieve success. My virtually unchallenged claim was for $3.5 million. I was prepared to go as low as $500,000 or 16%. The respondents, however, came back with a counteroffer of zero, nothing. This was their concept of a compromise in the spirit and letter of mediation. Obviously, it was deception on its part, but the primary judge would not allow me to plead it at the trial.

In the end the agreed sum of $90,000 was $25,000 less than my legal costs. To make matters worse, Westpac AGC coerced my pro bono legal counsel to drop the case and not to take it to trial. I pleaded with Mrs Bennett to remain in the case and honour her commitment to go to trial. The respondents took advantage of the situation and presented what would be considered unacceptable terms of settlements. My application, I trust, contains elements of public interest, principles of community concern and precedents in law and since the High Court is in the constant process of law reform I hope that my case will make a small contribution to that end.

The message to the public in my case would be that business, particularly big business, must be aware in a recession not to panic and if they are hurting or are threatened they should not pass the buck to innocent bystanders, their customers. If they do they will be punished. AGC, the subsidiary of Westpac, has shown itself not to be ethical, but it is not a rogue, either. In normal times, when business is secure and profitable it would never resort to commit fraud against a customer as they did to me in 1991-92 when it was in deep trouble over loans in the collapsing real estate market.

In 1991 a customer of AGC, a clothing manufacturer in Adelaide trading under the name of Jonathan Silver Pty Limited approached me with an order. The company owed $1.5 million to AGC Factors and were trading insolvently. In order to avoid bankruptcy and save his home which he had given as security to AGC the owner, Gary McGrath, went to Melbourne and Sydney, bought fabric on credit, made up garments and the proceeds of the sales were passed on to AGC by way of factoring. Ultimately, AGC's debt of $1.5 million was repaid in full but with creditors' money and the creditors of the company lost everything. I was one of them.

The owner of Jonathan Silver, whom I have known for some years, came to me with an order for $50,000 of fabric which I refused to accept. I told him that because of the recession AGC Factors had already pulled the plug on me causing me heavy losses - I think in the order of $350,000. My motto - my approach at that time was out of sight, out of credit, "I will not sell interstate where I cannot control my debtors" I told him. But, he said to me, "I am also with AGC, AGC Factors in Adelaide like yourself here in Sydney and you can check out my credit".

I requested AGC, Sydney to check him out with AGC, Adelaide and they came back and said that Jonathan Silver is as good as gold and that AGC would accept his account for factoring. On AGC's representation that Jonathan Silver Pty Limited were solvent and able to pay and that AGC would factor my invoices, I accepted the order. When the goods were ready for delivery I consigned them to Adelaide and AGC, Sydney factored the invoices with recourse, meaning that if the customer did not pay I had to reimburse them.

Subsequently, Jonathan Silver, as expected, was placed into receivership. AGC demanded from me the repayment of the $50,000, which they advanced by way of factoring. When I was unable to pay the $50,000 AGC applied to the court to put my company into receivership and ceased the factoring agreement with me. I was out of business.

Now, most importantly, I subsequently sued Westpac AGC in the Federal Court. The liquidator of Jonathan Silver Pty Limited filed two voluminous affidavits in which he proved that AGC knew a year before that Jonathan Silver Pty Limited were insolvent at the time of its representation to me and assurance of Jonathan Silver Pty Limited's solvency and its offer to factor the debt. I say this, if there was no recession, AGC would not have done this.

A similar tragedy hit me during the recession of 1974. At the time of that recession I had the biggest fabric knitting mill and a net profit for the year of $3 million in today's money values. My Danish financial backers and sole yarn suppliers panicked over the economic situation and decided to close down their business. Pearl Harbour Fashion, they served me with a letter of demand to repay my total indebtedness forthwith. Two hours later Harkness, who is now with KPMG, moved in as a receiver of my business. "This is against Whitlam, not you" he said. I lost everything, including my home. If there was no recession the Danish company would not have done this, either.

The crux of the matter, your Honours, was - and I use the word - "plot" by Westpac AGC to make us lose our pro bono legal representation and thereby enforce unacceptable terms upon us. This is a very serious accusation which was first made by our former solicitor, Stuart Levitt, in the witness box. I have submitted in my application book evidence in support of this accusation and if your Honours were to accept it, I think Westpac's case collapses. The primary condition of Westpac agreeing to the mediation was that Mrs Bennett had to represent us at the mediation. "No Mrs Bennett, no mediate" stated their solicitor, Jason Opperman in the witness box.

This was followed by the events surrounding the unfortunate Grunstein letter and the suggestion by Westpac's barrister, Mr Dowdy, that Mrs Bennett would be part of a Jewish gang-up against Westpac if she took the case to trial. Consequently, as Westpac expected, unfortunately, Mrs Bennett decided not to take the case to trial and resigned on the spot. The conduct of Mrs Bennett, as my former counsel, is subject to criticism and this is also in the public domain as far as the duty of a barrister to his or her client is concerned.

Unfortunately, the primary judge ruled in the respondents' favour, finding, (a), Westpac AGC would have been quite happy if a barrister other than Mrs Bennett had represented us. Your Honours, the judge's ruling was against the evidence. (b), the Grunstein letter was introduced only to show Mrs Bennett why Westpac were reluctant to pay me any money. Again, the judge's ruling was against the contents of the Grunstein letter. In fact, there is nothing in the Grunstein letter to implicate me, personally, or my wife, in anything unethical to justify any punitive action and deny us damages if they were found to be due to us. In the Federal Appeal Court proceedings the honourable judges unfortunately concurred with the findings of the primary judge and accepted the respondents' version as stipulated in his judgment.

Now, we go to see what was the attitude of the primary judge to me, personally. Characteristic of the primary judge's attitude is the episode -can I have a bit of water, please?

HAYNE J: Yes, of course. There is a jug there, do.

MR ABRIEL: Thank you, your Honours.

HAYNE J: Of course.

MR ABRIEL: Characteristic of the primary judge's attitude is the episode when his Honour asked the respondents' barrister, Mr Wood, what the preceding judge, Justice North, thought of the matter. Justice North heard it for six months in his.....but then he could not hear the case. Mr Wood said that Justice North suggested that Westpac should agree to relitigate the old case which would take three weeks. In other words, that my application should be approved. In actual fact, my 10 year long legal battle, to this day, was only for the opportunity to litigate, not to relitigate, the base case, as suggested by Justice North.

The trial of this case was expected to take three weeks. Justice Dowsett's comments was as follows, "It is better than a five day case than a three week case, is it not?" This was said on the last day of the trial when it was clear that his Honour was going to dismiss my application. Metaphorically speaking, it meant that for the sake of expediency it would be preferable to bury me now than spend three weeks reviving me and letting me live and let justice prevail. His Honour knew that the basic case was about AGC's fraud against me, which was proven beyond doubt. Fairness and justice to the applicant seemed to be of no concern, unfortunately, to the primary judge.

Throughout the five day trial the respondents continually asserted that my base claim was hopeless and without merit and his Honour accepted that. The honourable Justice Callinan remarked during the previous hearing that the trial judge cannot lean in favour of one party rather than another. Your Honour, in my case, the primary judge, unfortunately, was very biased. In my amended written submission before the honourable court I pointed out 52 instances where the primary judge accepted the lies of hostile witnesses as truth and totally disregarded any evidence which was in my favour. Consequently, the judgment itself was unfair to me and lacking in legal and factual base.

The biased treatment of me by the primary judge is also of public interest because it demonstrates the disadvantage facing a litigant in person without legal expertise and not having the ability to challenge procedures, arguments and deliberations. The Federal Appeal Court did not review any of the issues because the barrister, Mr S. Roth - are we running out of time?

HAYNE J: No, you will have the yellow light when you have three minutes left.

MR ABRIEL: Three minutes left?

HAYNE J: When the yellow light goes on then you will know.

MR ABRIEL: Okay, I will not be much longer. The Federal Appeal Court did not review any of the issues because my barrister, Mr Rothman failed to agitate nine out of 10 grounds of appeal which he, himself drafted. Consequently, the court could not deal with the matter. The honour Justice Hayne said at the previous hearing that the High Court should not have to enquire about an allegation of apprehended bias when it was raised but not pursued in the intermediate court. Fair comment, your Honour, but the fact is that Mr Rothman, who was responsible, did not suffer. I did.

The deliberate failure of Mr Rothman to put all the appeal points before the Full Court which caused a substantial miscarriage of justice is of public interest in view of the barrister's duty to his or her client. By the same token, all the hostile witnesses who lied and misled the court did not suffer, either. As the result, I am the only one who is still carrying the unbearable burden of injustice, dismal economic conditions and pain. The second applicant, my wife, Vera - - -

HAYNE J: We have read what you have said about your wife. Perhaps, you could - - -

MR ABRIEL: I cannot - I cannot - I cannot read that.

HAYNE J: I understand. Go to the next paragraph.

MR ABRIEL: The whole point of my application is that up to now I have been the victim of inadequacies in the legal system, let down by two barristers and a Federal Court judge. The Federal Court of Appeal was prevented from correcting - and then I would not have been here - for injustice because of Mr Rothman's failure to agitate all the 10 points of appeal. Consequently, there was a miscarriage of justice and I am now applying to the honourable Court for the opportunity to have the miscarriage rectified.

I am not a stranger to injustice and discrimination, however, in this fair and democratic country, probably the best in the word, I expect justice. I cannot help it but the memories of atrocities I experienced in my youth at the hands of the worst tyrants, Hitler and Stalin, have invaded my mind and soul and they are still there. If you were to dismiss my application for special leave it would be devastating.

Ironically, unfortunately, it is not even money or damages the honourable Court can award me. All I can expect and ask is that the base case of 11 years ago will come before the court again and be judged on its merits. In fact, no court has ever heard the case to its conclusion.

In conclusion, to get to this moment has been a long, hard, often seemingly impossible struggle but I now have finally had the opportunity to bring my case before you for consideration. My adversary is a huge corporation with enormous resources at their command while I stand alone to accuse them of having committed fraud against me. I know this is a serious accusation. I also know it to be a correct one which must be defended by their lawyers.

This is the fifth year that I have been involved in this struggle. During these five years I do not believe I have always served well by members of the law. I refer to one senior counsel who was in a position to win my case and, without explanation, chose to withdraw, for reasons of her own, which at the time she would not be to my ultimate benefit. Be this as it may, I have now had my chance to come before you and it is my sincere and only desire that justice is done, not only - thank you.

HAYNE J: Yes, thank you, Mr Abriel. We need not trouble you, Mr Stevenson.

There is no reason to reopen the application for special leave. The application is therefore dismissed. The first and third applicants should pay the respondent's costs.

AT 11.59 AM THE MATTER WAS CONCLUDED