Platcher v Australian Securities and Investment Commission [2005] HCATrans 102 (4 March 2005)

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Platcher v Australian Securities and Investment Commission [2005] HCATrans 102 (4 March 2005)

Last Updated: 16 March 2005

[2005] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S164 of 2004

B e t w e e n -

CHARLES EDWARD PLATCHER

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 2.25 PM

Copyright in the High Court of Australia

MR C.E. PLATCHER appeared in person.

MR N. PERRAM: May it please the Court, I appear for the respondent. (instructed by Solicitor for the Australian Securities and Investment Commission)

McHUGH J: Yes, Mr Platcher.

MR PLATCHER: Yes, your Honour. Your Honour, if I may just commence with the majority view in the Court of Appeal decision which was by Justice Tamberlin and Justice Emmett.

McHUGH J: Yes.

MR PLATCHER: The reason for that, your Honour, is that I would like to take you to what their Honours did say in relation to the evidence given or the trial judge’s findings on evidence given by several witnesses of the ASIC.

McHUGH J: Yes.

MR PLATCHER: And in conclusion on those original grounds, their Honours concluded by saying that - - -

McHUGH J: What page are you at?

MR PLATCHER: That is page 54 of the application book.

McHUGH J: Yes.

MR PLATCHER: “Mr Platcher did not bring any contradictory evidence”. That in essence, your Honour, is my submissions which I want to expand on in this Court, that the evidence of Mr Pettenon was vital to my side of things.

McHUGH J: Yes, but the difficulty that you face and I am afraid, with great respect to Justice Weinberg, he has overlooked it completely, is that it is not sufficient to show that evidence was not admitted. You have to show that it would have affected the result, and you never put the evidence before the Full Court.

MR PLATCHER: Your Honour, Justice Weinberg read the evidence and he made a comment as to the outcome would be affected. The Full Court was given evidence before by Mr Pettenon. There were some aspects which, in my submission before the Full Court, demonstrated that Mr Pettenon’s evidence was in my favour, and totally in my favour. He did make a statement that he managed Growthcorp, and Justice Weinberg had read the transcript, your Honour. I notice that the ASIC in page 100 remarked about that. In their submissions they said:

That statement was not the conclusion of an analysis of what significance the transcript, in fact, had.

But Justice Weinberg made it quite clear in paragraph 163.

McHUGH J: Yes, but where does Justice Weinberg say - - -

MR PLATCHER:

I am not convinced that the outcome of the trial would necessarily have been the same had Mr Pettenon’s evidence been received.

That is on paragraph - - -

McHUGH J: That is all he says. There is no reference to what the evidence is.

MR PLATCHER: Well, I think he says something else, your Honour, on paragraph 131 – he did say something on 131 about – just bear with me, your Honour, I am just trying to - - -

McHUGH J: Yes, go on.

MR PLATCHER: He did make a further remark about that to say that having read that there is no evidence led by Mr Platcher to controvert – that is on paragraph 139 and he says:

Nonetheless, the transcript of the trial reveals that Mr Platcher clearly wished to rely upon the evidence of Mr Pettenon to support his case that he had merely been acting as a consultant to the company. Having read the transcript of Mr Pettenon’s s 19 examination, I can understand why he would wish to rely upon that evidence.

And he goes on another paragraph to say something further on that.

McHUGH J: Yes.

MR PLATCHER: But your Honour’s point I can take that there was no evidence that Mr Pettenon on the section 19 of it was put before the Court of Appeal. That was my submission before the court, your Honour, that Mr Pettenon’s evidence, I drew through various aspects of the transcript to demonstrate how vital his evidence was for my side of things.

McHUGH J: Yes.

MR PLATCHER: And from the trial judge’s point of view, the case law which I would like to take you to, your Honour, demonstrates that the trial judge denied me my procedural rights in not allowing me to provide the transcript of Mr Pettenon or introduce that evidence.

McHUGH J: Well, the trial judge did not deny your procedural rights. You just failed to understand what he was saying to you.

MR PLATCHER: But, your Honour, there are certain aspects in relation to the evidence itself, the examination of the evidence, that is basically the trial judge did say that the transcript of Mr Pettenon was not allowed or words to that effect, or she basically indicated to me that the value of the evidence that Mr Pettenon had in the remaining paragraphs 1, 2, 3 and 6 were of slight value.

McHUGH J: Yes.

MR PLATCHER: And she also said – this is at page 64, and I put it to your Honour:

Will then I be allowed to go to the evidence provided by the [Commission] and examine Mr Pettenon –

referring to the transcript, and the primary judge said –

Well, I don’t understand that they are, is that the point?

Mr Beaumont: ‘I’m not...’ -

but - - -

McHUGH J: Yes, but what you have to understand Mr Platcher is this Court does not sit as an ordinary court of appeal. We sit to hear cases which concern matters of national importance. Exceptionally, where there has been a clear miscarriage of justice, we will grant leave or arguably, there is a clear miscarriage of justice. We are not a general court of appeal. We can only hear something like 50 cases a year out of all the cases in the country, including constitutional cases. So to demonstrate there was a miscarriage of justice you would at least have to show us that this evidence may have affected the result.

MR PLATCHER: Well, your Honour, that is one of the reasons - - -

McHUGH J: And we would want to be quite confident about it. There is no material at all before us. Whatever these passages you rely on are not before us, neither is the evidence. There is just nothing upon which we could make a decision as to whether there is any miscarriage of justice in this case.

MR PLATCHER: The argument I am putting forward, your Honour, if someone is denied – it is like having 10 witnesses before you and everyone says something, and you have nothing to contradict that evidence, that is a denial of natural justice, your Honour, if I could put it that way without being a burden to - - -

McHUGH J: Yes, but we do not sit to hear cases like that. Those cases, right or wrong, have to finish in the intermediate courts of appeal. There are hundreds of thousands of cases heard around this country every year. We can hear at most about 50, and there has to be something very special about the case. Everybody who loses claims there has been a miscarriage of justice.

MR PLATCHER: The special factor here, your Honour, is that the rights of a person who is self-represented, because from the point of view that, if in the case of Cachia v Hanes the courts allow it, the High Court – they said it is fundamental for people to represent themselves, then there should be some procedure adopted by the courts to allow people to be given some sort of indication of their procedural rights, and that was enunciated In the Marriage of F and in Johnson’s Case and several other cases thereafter, and even now the Law Reform Commission is looking very closely at trying to bring in that type of - - -

McHUGH J: But the case against you was an overpowering case, and you are seeking to rely on some matters given in a transcript.

MR PLATCHER: Not in a transcript, your Honour. The director of the company is the only witness I can rely on. I mean, once again this procedural aspect has shut me out. That is my argument because - - -

McHUGH J: Yes, but you - - -

MR PLATCHER: But these matters are put before the court, your Honour, before the Court of Appeal, that is because the appeal books have been – this is one of the reasons why I am arguing on a matter of public importance. But basically, if someone comes along and says you cannot put this in, you cannot put that in, and then eventually you end up being before someone like yourself who says, “Well, I can’t help you because you haven’t got the transcript in front of me”, but that transcript was put before the Court of Appeal.

McHUGH J: Yes, but it is not in the application book, and none of the evidence is. All we have is the judgment of the Full Court and the judgment of Justice Stone.

MR PLATCHER: Well, on the judgment of Justice Stone, your Honour, like these witnesses that were supposedly witnesses that were able to basically say that I managed this corporation, there is some doubt. In fact, Justice Tamberlin, Justice Emmett did mention that in paragraph 61 that there was some question as to their reliability and all of the witnesses that they referred to – basically they said, well, her Honour the trial judge was able to come to that conclusion, but that was without the benefit of the transcript of Mr Pettenon. That was my vital witness.

If that is not on public importance, your Honour, someone being shut out of the evidence, I do not know what could possibly be. But I understand your difficulty, your Honour, you are at a difficulty not being able to have that - - -

McHUGH J: It is not a question of difficulty. Well, that is one point, but the problem is that it is just not enough to show that evidence is wrongly rejected in a case. That is not a ground for special leave to appeal. Every day in the week judges make rulings on evidence which are arguably wrong. We cannot grant leave in those cases.

MR PLATCHER: Your Honour, I am not saying that it was a question of determining the evidence. I am saying my evidence was shut out of being heard, that is, I have no one to say what I have to do to contradict that evidence. It is like coming there with a – with someone coming out there with a baseball bat and saying, well, basically put your head out to be clobbered. That is what happened to me.

McHUGH J: The judge said to you it is a matter for you as to whether you still, with paragraphs 4 and 5 taken out of the affidavits, it is a matter for you to decide whether on that basis you still wish to call Mr Pettenon.

MR PLATCHER: Your Honour, what my point is leading to there is that the fact that her Honour knew that I was in difficulty – if we are looking at these procedural rights, at what has been initiated In the Marriage of F and Johnson’s Case, her Honour at that time knew I was in difficulty by saying that basically it was vital to my side of things and prior to that, your Honour, this affidavit that was supposed to be introduced by myself on the day of the trial was given to the ASIC four months ago.

Now, that in effect is someone getting an advantage on myself who was a self-represented litigant and that is what Mr Justice Samuels and Mahoney had to say in Rajski’s Case where it said that the court should take care in that sort of situation.

McHUGH J: Yes, but assuming, and I am by no means convinced that there was some breach of procedural fairness on the part of the trial judge, you still have to show that it was likely to have affected the result. Now, that is your problem.

MR PLATCHER: Well, I have to rely on Justice Weinberg who has read the transcript, your Honour, and I did not include anything, but it was before the Court of Appeal. The evidence I sought to rely on of Mr Pettenon and, in fact, I went through it quite systematically showing exactly what I had correlated to the other witnesses’ statements. However, that somehow did not get before you and it is obvious that once again, the ASIC sought a forensic advantage. I mean, if they put an affidavit in saying it is three months late or it is served on the day of the trial – I mean, I gave it to them four months ago and this is how Mr Beaumont was successful in coming forward and saying that it was rolled up conclusions. If that is not seeking a forensic advantage, your Honour, over a person that is self-represented.

I think the trial judge should have given me the assistance that I required at the time. I said it is vital to my side of things. She, as Justice Weinberg pointed out, could have stopped and given me an adjournment and the matter could have been dealt with with a barrister of – knowing the procedure of the court would have done such a thing. Unfortunately for me, this has basically shut out any evidence I had to put before the court. As you well say, your Honour - - -

McHUGH J: You could have gotten in the witness box yourself and given evidence.

MR PLATCHER: Your Honour, I did not know that at the time. If I knew that, I would have done so.

McHUGH J: Really.

MR PLATCHER: I did give evidence in the witness box, your Honours.

McHUGH J: In answer to the charges?

MR PLATCHER: But at the time I did not know the procedure - - -

McHUGH J: You did not know that you could not give evidence in support of your defence to the charge?

MR PLATCHER: Your Honour, at the time I was just basically looking to read the affidavits of the other witnesses and basically cross-examine them. I did not know I was allowed to give that evidence. No one asked me to do that, but when I was asked to do so in the Local Court proceedings, I did so.

I understand your Honour might think I am short on the matter, but if it is a consideration of justice, I mean, there should be something as a matter of public importance – what documents are put before courts to judges such as yourself that can really administer justice not on the basis of procedure. I do note the difficulty when someone does not have the material in front of them.

McHUGH J: Yes, Mr Platcher.

MR PLATCHER: Well, your Honour, all I can say by taking you to the cases which you are probably very familiar with, that is the cases of fundamental importance that a person’s evidence is put before the court, I am sure that you would be aware of that, and so there is nothing much I can really say apart from the fact that I believe that I was denied my procedural rights and denied a fair trial.

McHUGH J: The Court need not hear you, Mr Perram.

In this matter Mr Platcher believes that he has been done an injustice by reason of the trial judge’s failure to inform him of his rights in respect of the calling of various evidence, including his own evidence. However, there is nothing before this Court which would enable it to say that whatever happened at the trial of the proceedings affected the result of the case. In those circumstances, the case is not one that warrants the grant of special leave, and accordingly, it must be dismissed with costs.

Adjourn the Court to 9.30 am, Tuesday in Canberra.

AT 2.42 PM THE MATTER WAS CONCLUDED