Jambrecina v Pyramid Building Society Ltd (In Liq) & Anor [2004] HCATrans 30 (17 February 2004)

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Jambrecina v Pyramid Building Society Ltd (In Liq) & Anor [2004] HCATrans 30 (17 February 2004)

Last Updated: 5 March 2004

[2004] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S143 of 2003

B e t w e e n -

DRAGO JAMBRECINA

Applicant

and

PYRAMID BUILDING SOCIETY LTD (IN LIQUIDATION)

First Respondent

FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION)

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 FEBRUARY 2004, AT 2.53 PM

Copyright in the High Court of Australia

MR D. JAMBRECINA appeared in person.

MS O.M. McCOY: Your Honours, I appear for the respondent. (instructed by Clayton Utz)

McHUGH J: Yes, Mr Jambrecina.

MR JAMBRECINA: Your Honour, I decide to come to this Court because I was not successful in the Supreme Court. I had a statement of claim four times before the Supreme Court and each time it was refused. After third hearing of third statement of claim I have cause to draw a transcript and by reading the transcript I believe the court was badly deceived by the claimant’s barrister. For that reason, the judgments were against me. I would like to show you some of those, what do you call it, deceiving things or lies or deceptions. Reading the Master’s judgments dated 15 December 1999, I have found that the Master had facts, in particular, paragraphs 14 and 15, totally wrong.

McHUGH J: Yes, but that judgment is not in the application book, is it? In any event, what happened before the master is of no relevance, is it? You have to deal with Justice Levine’s judgment.

MR JAMBRECINA: Yes, okay. Well, the situation is the same, so I am getting to it. I do have in the list his statements as well – his judgments and his transcript. I will just have to jump a few - - -

McHUGH J: Mr Jambrecina, can I put to you straight away what is the essential problem in your special leave application and it is this, that Justice Levine held, for the reasons he gave, that your statement of claim did not, as pleaded, disclose a reasonable cause of action. Correct me if I am wrong, but your summary of argument does not deal with the merits of his reasoning. You seek to rely on claims that he and other judicial officers were unjust and unfair and that their reasoning was flawed by false representations made by counsel for the respondent. But the problem that you have is that your statement of claim seems to be unable to disclose any reasonable cause of action, and you do not address that in your submissions. Even if you could make out all these other allegations, you would not get leave from this Court to consider a statement of claim which, on the judge’s finding, did not disclose a reasonable cause of action and was an abuse of process.

MR JAMBRECINA: I am still saying this, that the fact that I am unable to structure statement of claim the way the solicitor or barrister will do, that does not - - -

McHUGH J: The first thing, your statement of claim is not even in the application book. How could we possibly grant special leave to appeal in respect of a document that is not even in the application book?

MR JAMBRECINA: The statement of claim should – my point is really, I believe that I have to prove to the Court that the barrister was badly lying and it was in breach of Legal Profession Act several times in many, many ways throughout proceedings and I thought that is what I have to show to the Court.

McHUGH J: No, it is not what you have to show. You have had a statement of claim struck out and it was held that it disclosed no reasonable cause of action and it was an abuse of process. Now, it would be very rare that we would grant special leave on the striking out of a statement of claim, but you have not even put it in the application book. How can we make any sort of a judgement without seeing it ourselves? I notice it is among the authorities that you have handed up.

MR JAMBRECINA: Yes.

KIRBY J: May I ask a question or another point. I notice the chronology and the applications to make you bankrupt. I understood that you were made bankrupt by order of the Federal Court, is that correct?

MR JAMBRECINA: Yes.

KIRBY J: Have you received the consent of the trustee in bankruptcy of your bankrupt estate to bring this application?

MR JAMBRECINA: No.

KIRBY J: Well, that creates another impediment, it seems to me.

MR JAMBRECINA: I do understand that, but I believe that part of this application is – because Judge Levine, he done two orders. One is dismiss my statement of claim.

KIRBY J: I realise that, but you see the whole point of the bankruptcy is to defend your assets and by bringing proceedings you are already putting in risk the assets that you have available to your creditors and that is why the law requires that you get the consent of the trustee in bankruptcy for the bringing of the application. You have not sought or obtained that consent and it seems to me that that means that you cannot proceed with this application.

MR JAMBRECINA: I believe that another order Judge Levine made to make me a vexatious litigant is of personal nature and on this basis that this case could proceed.

KIRBY J: I am just looking at the fact that you have been made bankrupt by order of the Federal Court and you are bringing these proceedings without the consent either of the trustee in bankruptcy or of the Federal Court, overruling the decision of the trustee in bankruptcy. So that is just a procedural impediment to your bringing the proceedings, it seems to me. We have said that in many applications, including some with arguable points, where the person is a bankrupt and seeks to engage the jurisdiction of this Court. The Bankruptcy Act stands in the way and we must obey the law made by Parliament.

MR JAMBRECINA: I agree with that, but where I have a problem, and it looks to me the whole justice system have a problem, that there is absolutely no place where I could have turned up and ask.....help on these matters. So I just have to do whatever I hear around, what I think - - -

McHUGH J: One got the impression from reading Justice Levine’s judgment that you were given legal advice by Mr Hugh Marshall SC.

MR JAMBRECINA: Your Honour, that is artificial. I have saw Mr Marshall but there was no legal advice. All he done, he just told me, “Look, you can’t win. You’d better give up.” There was no going through the facts, going look in the case at all, and I was under impression that before he saw me he saw the defendants and have directions from him. That is what makes me really, really sorry – angry, sad, whatever.

McHUGH J: Yes, carry on, Mr Jambrecina.

MR JAMBRECINA: Judge Levine, in his judgment, he says in paragraph 9:

The pleading, which is founded, so it clearly appears, in the same properties that have generated litigation hitherto, contrary to what underpins the relationship between the parties years ago –

What he refer there is that the properties I have claimed damages against in 1999 proceedings, he says the same property were involved in 1992 proceedings. That is total false, it just was not on, and he says that simply because a barrister for defendants said so.

McHUGH J: Let it be assumed he is wrong, it does not make any difference to the result. I have now had a look at your statement of claim and I appreciate that you are not legally trained but it could not possibly stand. Any lawyer, any judge or master would strike it out. It does not disclose a cause of action, it is just embarrassing.

MR JAMBRECINA: I hope you recognise that there is a huge problem with the legal system as a whole, that a person like me – there is hundreds, if not thousands, of us around in my category, that cannot obtain any legal help whatsoever and we just have to go through this, clogging this Court, clogging the Supreme Court, clogging all other courts. Why? Well, I cannot just stand when I see how wrong thing is, I cannot stand doing nothing, I cannot give up. So where am I - - -

McHUGH J: Have you been to Legal Aid?

MR JAMBRECINA: I have been, your Honour, everywhere where they send me. I have just gone from one to another, but the fact is this: the Federal Court gave me something like 10 pages of the places of so-called legal aid and help and so on. None of them would touch a case which is in the Supreme Court, none of them. So what am I to do? I try everywhere. There is just no place that would give any help whatsoever.

McHUGH J: If that is the case, it is very regrettable, but lawyers must have changed dramatically since I practised 20 years ago. You would always find people who would at least look at a case and say whether or not it was good or bad, but the problem then, as it perhaps is now, is that a lot of people will not accept the advice that they have no case. It is human nature.

MR JAMBRECINA: That is not in my case. I was really searching for someone to just tell me the truth and I would be glad to give up because this thing for me is so hard, unbelievably hard, but when I see the judgments and I see these errors and I see how they happen, what am I to do? I just cannot give up. That is the problem, because the dishonesty of the barrister, it is really – that is where it all started.

McHUGH J: That is a serious allegation and accepting that for the moment - and we only have your word for it – that the barrister made an error, it is quite possible it is an unconscious error. Everybody makes errors.

MR JAMBRECINA: It is not one error, your Honour. It is repeated throughout all four hearings, everywhere. Only one needed time to go through the documents and look at it and you will see.

McHUGH J: Mr Jambrecina, it is not the role of this Court. As you may or may not know, we can only hear 60 or 70 cases a year and there are tens of thousands – hundreds of thousands of cases decided in Australia every
year. There are appeal courts in the States, the Federal Court, and basically they have to deal with them. So there has to be something very special, some important point of law that would warrant us granting leave.

MR JAMBRECINA: Your Honour, if the law is not important which says the barrister should not lie, should be honest, should be frank, well, then - - -

McHUGH J: Of course it is important, but if a barrister deceives a court, then there are remedies against him. There is a legal ombudsman or some equivalent title.

MR JAMBRECINA: I have been through there too, your Honour, I am sorry I just – and they told me this. He says, “Anything in that nature you have to go first through the courts. If you can’t do anything, then you come to us and all we can do is impose maximum cost of $10,000 and the barrister does not have to co-operate with our investigation.” So, you know, it is useless.

McHUGH J: Mr Jambrecina, have you got anything further to say? We have read your submissions.

MR JAMBRECINA: My real point today was to put just that point, that a barrister is crook – he lie, he deceived, he fraudulently deceived the court in four different hearings and, well, at least you know - - -

McHUGH J: Very well, thank you, Mr Jambrecina.

KIRBY J: Ms McCoy, you do not raise the issue of the applicant’s bankruptcy. Is that on the basis that this is an order that, in a sense, affects his civil rights or status or personal entitlements and that for that reason it is not affected by his bankruptcy?

MS McCOY: Your Honour, we just simply did not take the point in relation to that.

KIRBY J: If it attaches, it is not simply an inter-parties point, it is a matter of status, but you do not press that point? Is that - - -

MS McCOY: That is right, your Honour.

McHUGH J: Yes, thank you. We do not need to hear you.

The applicant is a bankrupt. He concedes that he has not obtained the consent of his trustee in bankruptcy to bring these proceedings.

The applicant has two basic complaints. First, he complains that Justice Levine made an order striking out an amended statement of claim because it disclosed no reasonable cause of action and was an abuse of process and that his Honour made a further order dismissing the proceedings. The summary of the pleading appearing in his Honour’s reasons for judgment suggests that his conclusions were correct. Although the amended statement of claim was not in the application book, it was handed up as part of a list of authorities and, examining it, we have no doubt that it fails to disclose a cause of action.

In respect of that matter, the fact that the applicant has not obtained the consent of his bankruptcy trustee would preclude this Court from granting leave in any event if consent was required. However, the respondent has not relied on lack of consent to bring the application.

The second matter is in a different category. The applicant complains that Justice Levine declared that he was a vexatious litigant within the meaning of section 84(2) of the Supreme Court Act 1970 and made consequential orders. The reasons for judgment of Justice Levine do not suggest that the reasoning leading to those orders and declaration was incorrect. If there had been an arguable case presenting a special question, the failure of the applicant to obtain his trustee’s consent would not prevent this application being brought because it has the character of an action for a personal injury or wrong within section 60(4)(a) of the Bankruptcy Act 1966. In any event, the applicant was a defendant to that proceeding. Nothing in the Bankruptcy Act precludes him bringing the application to set aside the order of Justice Levine.

The applicant’s summary of argument and his oral submissions today do not deal with the inherent merits of Justice Levine’s reasoning. He contends that the hearings before Justice Levine and other judicial officers were unjust and unfair procedurally and flawed by false representations made by the counsel who then appeared for the respondent. There is nothing in the application book but the applicant’s assertions to support these claims and there is no reason, on the materials before us, to believe that there is any merit in these contentions. They, therefore, afford no ground for the grant of special leave. Special leave to appeal from the refusal of the Court of Appeal to grant leave to appeal against Justice Levine’s order is therefore refused and must be refused with costs.

Adjourn the Court.

AT 3.14 PM THE MATTER WAS CONCLUDED