Chen v Commonwealth Securities Ltd M92/2001 [2003] HCATrans 794 (20 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M92 of 2001

B e t w e e n -

GAN BANG CHEN

Applicant

and

COMMONWEALTH SECURITIES LIMITED

Respondent

Application for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 1.11 PM

Copyright in the High Court of Australia

MR G.B. CHEN appeared in person.

MR M.J. GALVIN: If the Court pleases, I appear for the respondent in this matter. (instructed by Russell Kennedy)

HAYNE J: I understand that there is an interpreter who is to be sworn.

SHUK YIN PHOEB CHAN, affirmed as interpreter:

HAYNE J: Now, Madam Interpreter, if you would be good enough to tell Mr Chen that we have read the papers he has filed. He has an opportunity now to put anything further to us that he wishes to put. Yes, Mr Chen.

MR CHEN (through interpreter): The Commonwealth Securities has said that I have not paid the $9,000-plus, but actually I have paid. I am very certain that I have paid and I would now like the Commonwealth Securities to know that if, in the future, anybody should allege that I have not paid I would take legal action to sue the person in defamation because I have evidence to prove that it was not true.

About the appeal in the Federal Court, the judge has made a mistake. I am not very sure whether the judge has understood the laws. I am referring to page 9 of the application book. The Federal Court has given me the form 54A. It is different from form 54 because there is an "A" in it. It reads:

An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52 rule 15.

(Where Order 52 subrule 15(3) applies) The applicant intends to present his case and argument in writing pursuant to Order 52 subrule 15(5).

That is the law of Australia and I have asked a number of lawyers about this. The lawyers said that nobody can breach this law. If my application today is dismissed, then the Australian legal system will face collapse because the judge has obviously breached the law, the law relating to form 54A.

Terrorism exists in the world today and buildings are prone to attack at any time. If a court building has been attacked, then there certainly would be an extension of time according to the law, the law relating to form 54A - it is Order 52 rule 15 - and matters would be dealt with according to the law. Suppose there is an earthquake so that the court cannot function, then the extension of time would be required accordingly. Nobody can challenge this law and nobody can breach the law.

About the issue whether I have served within the 21-days time limit, that is the question, but I have evidence to prove that I am within the 21-day time limit. I am referring to page 9-C. On the top of the page is printed "FEDERAL COURT AUST" and there is the number after "Fax sent by" and the date is "28/03/01 17:04". That date, 28^th, shows that I was within the 21-day time limit.

I think the only ground for the Commonwealth to challenge my application for this point, because as to other matters of law they cannot challenge. I have asked the people in the Federal Court and the officers there are aware of this matter. I made inquiries at the Federal Court as to what has happened and a staff member told me that he or she is not obliged to explain them to me and one staff member of the Federal Court told me the time limit is 28 days, but later on when I attended the Federal Court I was told that it was 21 days and I was given a form to be filled in.

I asked why; there is no answer. I was just given a form. I was told that if the Federal Court has made any mistake it would be dealt with, it was not my fault. I asked what the problem was. I was not told. It could be a breakdown of the computer or it could be that something was stolen. I just do not know. Anyway, I was given this form to be filled in. Nobody can challenge the Australian law. Lawyers can make inquiries of the Federal Court to ensure what I have said is correct.

I could not ask whether there was a theft or whether there was a fire in the Federal Court and so the matter was closed, but I was told that I was not at fault. I was told that I would be all right if I took this form and that form to the court. But the judge in the Federal Court said that I had gone beyond the 21-day time limit. In saying that the judge has breached a law of Australia and that is why I would urge the Court to give me the leave, otherwise anybody can sue anybody else without evidence and there would be no law and anybody can allege anybody else of murder and arson and anyone can breach the Australian law. Is it time yet?

HAYNE J: No, a yellow light will come on when you have a further three minutes to go.

MR CHEN (through interpreter): Your Honour, have you read the law that I have read about Order 52 rule 15 and 15(3) and 15(5)?

HAYNE J: Mr Chen, the judge in the Federal Court said that even if you had brought your appeal in time it would necessarily fail. You have to get over that hurdle.

MR CHEN (through interpreter): But the Federal Court also told me that the main problem is that I was not within the 21-day time limit. That is the main question I was told. I have asked a number of lawyers and they all told me that the judge's main problem was with the time limit and I have read the transcript and the judge said the same thing - page 12 and page 13. He said that I was out of time. The judge is not stupid and he realised that things like that could not happen. The matter is as simple as one plus one equals two. The judges of the Court of Appeal are very clever and I was told that I have not got the document filed within 21 days. I am not sure whether the lawyer representing the other party is a qualified lawyer.

HAYNE J: We are not going into that now, Mr Chen. You just go on with what you have to say. Is there anything more you want to say?

MR CHEN (through interpreter): I have told your Honour what I.....and as your Honour has said you have read all the documents.

HAYNE J: Thank you very much, Mr Chen; your time has expired. Thank you, Madam Interpreter. We need not trouble you, Mr Galvin.

The decision in respect of which the applicant seeks special leave to appeal is originally a discretionary decision to refuse to extend the time within which he might make an application to set aside a sequestration order. The applicant is unable to point to any error, either in the original decision of the federal magistrate or the decision of the Federal Court on appeal. In exercising his discretion, the magistrate took into account and was properly influenced by the fact that an application, if it were permitted to be made out of time, would have no reasonable prospect of success and that there was no satisfactory explanation by the applicant of his failure to apply within time.

Accordingly, special leave to appeal is refused and refused with costs.

MR GALVIN: Would your Honour make an order that the costs be costs in the administration of the bankruptcy?

HAYNE J: Yes. The costs will be costs in the administration of the bankruptcy.

AT 1.36 PM THE MATTER WAS CONCLUDED