Caldar and Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of NSW [2005] HCATrans 160 (16 March 2005)

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Caldar and Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of NSW [2005] HCATrans 160 (16 March 2005)

Last Updated: 31 March 2005

[2005] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S109 of 2004

B e t w e e n -

RUSSELL CALDAR AND THE ESTATE OF THE LATE MRS RACHEL ISOBEL GITTOES

Applicant

and

THE PUBLIC TRUSTEE OF NEW SOUTH WALES

Respondent

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 MARCH 2005, AT 9.59 AM

Copyright in the High Court of Australia

MR R. CALDAR appeared in person.

MR I.R. RUGLESS: If it please the Court, I appear for the respondent, the Public Trustee. (instructed by Clinch Neville Long)

HIS HONOUR: Thank you. There is a summons filed on 1 February 2005 seeking reinstatement of the application for special leave, which was instituted, I see, on 30 March 2004. What is the attitude of the respondent to the summons, Mr Rugless?

MR RUGLESS: Your Honour, the Public Trustee opposes any extension. There is – which I may need to speak on a little later – there is a very, very long history on this matter - - -

HIS HONOUR: I see that from the papers, yes.

MR RUGLESS: Yes, and they grow longer by the day.

HIS HONOUR: Yes. Yes, Mr Caldar.

MR CALDAR: Sir, tomorrow morning at 11.00 am, the Public Trustee is going to evict me from my lawful home. That home, I have lived in that since 1952. At law and in equity, sir, I am entitled to at least half of that property which that home stands on. Now, I am asking leave of this Court for permission to be able to have my application for special leave to appeal be reinstated because of circumstances I explained in my submissions, so I can present the case properly to this High Court.

Your Honour, I believe what is going to happen to me – well, it is possible it could have happened to other people in the past. For sure it is going to happen to other beneficiaries in the future, sir, if the conditions which are prevailing now in the New South Wales Supreme Court are not brought to a head and stopped, or just simply stopped, sir. As I said, sir, at law and in equity I am entitled to that – at least half of that property, sir. The Public Trustee has taken unlawful possession of that property, sir. They had no right to in the first place. The court granted them executor, administrator in the will, sir, as I have pointed out in my submissions. In New South Wales – well, the courts – no one, including the Court of New South Wales, has the statutory power to appoint an executor or an administrator of a testator’s will, sir. I will draw your attention - - -

HIS HONOUR: But we have to focus, I think, Mr Caldar - - -

MR CALDAR: Yes, sir, on the - - -

HIS HONOUR: - - - on the particular – there has been a lot of litigation.

MR CALDAR: Yes, sir.

HIS HONOUR: On the particular decision of the New South Wales Court of Appeal refusing you leave, I think it was, was it not, in respect of - - -

MR CALDAR: No, they have not refused me leave yet, sir, no. There are two matters now before the Court of Appeal here in New South Wales, sir.

HIS HONOUR: No, no. On 2 March 2004.

MR CALDAR: That was in relation to another matter, sir. Can I - - -

HIS HONOUR: Well, I am looking at your draft index, Mr Caldar.

MR CALDAR: Well, the draft index of the Public Trustee does not state the full matters involved, sir.

HIS HONOUR: Just a minute.

MR CALDAR: It was procedure wise, I think, in that case when the application was dismissed against Registrar Howe, I believe, sir, in that regard.

HIS HONOUR: The application for special leave, which is your document, says you apply for special leave to appeal from the judgment of the New South Wales Court of Appeal constituted by Justices Handley and Meagher on 2 March 2004.

MR CALDAR: That is the one before – is that - - -

HIS HONOUR: That is the one you are seeking reinstatement of today.

MR CALDAR: Yes. I am sorry, sir. Yes, that is the one I am seeking - - -

HIS HONOUR: That is right.

MR CALDAR: - - - reinstatement on.

HIS HONOUR: So we have to focus on what you say was wrong in their principle in their judgment of that date. What they did was refuse you leave.

MR CALDAR: The nature – can I - - -

HIS HONOUR: Ordinarily, the Court does not get involved in procedural matters of that nature.

MR CALDAR: No, sir. Can I state this. The S109, which is before the Court here now, the circumstances and conditions of the case have basically changed from that time on. As I have pointed out - - -

HIS HONOUR: I realise that, but that does not detract from the correctness or the lack of correctness of the Court of Appeal decision.

MR CALDAR: True, sir, in that regards but as - - -

HIS HONOUR: And nothing you have put at the moment seems to me to explain the delay.

MR CALDAR: Well, the delay is in the matter, sir. I went back to the court again. Basically, after that, I went back to the court here asking for a stay of proceedings. Basically, this is what the matter is – that is, a stay of proceedings for the Public Trustee to evict me from my lawful home. That is basically why I am appearing before the Court here today, sir, to ask for that stay of proceedings – well, to reinstate my appeal. After that stay of proceedings, then be allowed to amend my appeal to the Court here today, sir, and put the matters in perspective, which I have set out in my submissions, sir, which you see there.

HIS HONOUR: Yes, I have looked at that.

MR CALDAR: Basically, before the Court of Appeal, sir, that would be the basis on which I am appealing against. The decisions of the two judges in the New South Wales Court of Appeal, sir – well, the whole concept of the appeal, sir, now has basically changed. There is new information come to my knowledge, which I presented in the submissions here, sir, and I just would like the right to be able to present them to the Court of Appeal in an amended application, had the previous application, which was lapsed, which is fair enough – I did not at the time abide by the Rules of the Court. To be quite honest with you, sir, I did not know how to abide – well, to file the necessary documents, because the nature of the appeal had changed, the nature of the application I had made had changed, and I wanted to reinstitute a new application, a special leave to appeal.

So I could not do anything in the prescribed time of that, sir. That is why – well, the registrar – and quite right, I am not denying that, the appeal was lapsed. Now, I am simply asking now, sir, your leave to have the application reinstated and allow me to amend the application. There are two proceedings appearing, or up for hearing – judgment – in the Court of Appeal here in New South Wales. I think in all fairness, sir, the proceedings should be allowed to proceed in the Court of Appeal in New South Wales because the issues I have aired here and the submissions have not been basically put to the Court of Appeal here in New South Wales.

There have been other issues which were put to the court, but the four issues here I have mentioned in the submissions have never been put to the court in New South Wales, sir. I think, in all fairness, that they should be allowed at least to review their situation and decide, but, in the meantime, sir, I would still like to preserve my right to appeal, hold my appeal to the Court of Appeal here. Well, sir, I have got to look at the situation in this regard. What is happening in New South Wales it is just unbelievable in the courts, in the judicial system.

Now, the court knows I am in lawful possession of the property, I am in lawful occupation of the property. The property is my lawful home. I have been living there since 1952, but the court will not even give me a stay of proceedings until the appeal is heard in the Court of Appeal New South Wales. The court will not even give me the right, sir, to buy out the other beneficiary’s equal share in the property. That is what it has amounted to now, sir. So for the sake of a Public Trustee and profit, because basically this is all it comes down to, sir. It is profit, who gets the profit. For the sake of profit, I am being evicted from my lawful home. I am not being given the – being denied, really, sir – the right to present a proper case to the Court of Appeal here in New South Wales.

So, sir, I am asking for this Court to intervene. At least grant me a stay of proceedings so I can present a proper case to the Court of Appeal in New South Wales. Even if you do not want to reinstate my application, sir, at least give me a stay of proceedings, a fighting chance, so I can present my case to the Court of Appeal and let the court decide.

If you grant me that, sir, well, naturally, I realise the appeal would have to be reinstated. That is so. Secondly, I would have to ask the appeal to be reinstated and I be allowed time to amend the appeal, and I believe the date was 30 November, was it not, sir, when I would finalise the appeal and have everything prepared and lodged in the court by then. I can bring the matter forward earlier, if you like, sir, but, as I say, I do not know the time situation in the Court of Appeal here in New South Wales and that. So I would at least like to give them sufficient time to be able to air their matters and make a decision themselves. Sir, there are important questions of law and justice here. It is as simple as that.

HIS HONOUR: Well, the question here, I am afraid, Mr Caldar – I know there is a substantial history to all this and it is still continuing - - -

MR CALDAR: Yes, sir, and there is a substantial history of denial of justice.

HIS HONOUR: - - - but what I am concerned with today is this particular special leave application, which has lapsed.

MR CALDAR: Yes, sir, that is - - -

HIS HONOUR: You may have other remedies open to you. I do not know about that. But all I can deal with is this particular lapsed special leave application. Now, is there anything else you want to say about that?

MR CALDAR: Well, only what I have given a minute ago, my defence to have it reinstated, sir, and the fact, as I say, tomorrow morning I do not have a home after 11 o’clock. Is that just, sir? That is all I am simply asking. I would like at least to have the chance to be able to fight this and present my case in the Court of Appeal, sir.

HIS HONOUR: Yes, very well. What is the position about this eviction, Mr Rugless?

MR RUGLESS: Your Honour, that is correct. It is correct that at 11 o’clock tomorrow the Sheriff is to evict Mr Caldar from the estate property. That is, an eviction notice had been previously temporarily stayed, and that temporary stay has been removed. The previous appointment for eviction was set aside. Mr Caldar has, as recently as this Monday, come back before Justice Tobias in the Court of Appeal seeking a further stay. That was denied. I have copies of some of the judgments. There have now been something like about six applications, at least, relating to stays of the writ of execution.

Your Honour, there is on the Court file a chronology of some of the litigation at a certain point. If your Honour were at all interested, there is an update - - -

HIS HONOUR: No, I am not.

MR RUGLESS: - - - to that chronology, and it certainly has gone on and on and on. It is just the sharp point of the matter tomorrow. The Supreme Court in two of its divisions – the Court of Appeal has again and again and again considered Mr Caldar’s position, and Mr Caldar simply refuses to accept that the court is getting it right.

HIS HONOUR: Yes, thank you. Yes, Mr Caldar. I just wanted to understand the immediate reason for your distress this morning, which I
appreciate, but the issue I have here is a very narrow one, as I have indicated to you.

MR CALDAR: Sir, the court is not getting it right, sir. This is the whole issue which I want to bring to the High Court. The Trustee Act is quite clear. It is quite precise in what it says. The Court has no statutory power. Nobody has any statutory power to appoint an executor or administrator of a will, except a testator, sir. That is the only person who is allowed. The testator is the only person allowed to devise property, sir.

Effectively, what this court here has done in New South Wales is remove the testator’s right to appoint an executive or administrator of his or her will, and the court has done it simply, basically, sir, because of profits for the Public Trustee. That is the issue, basically. It will be presented back to the Court of Appeal in New South Wales and if the Court of Appeal refuses to uphold the statutes of the States, then it must become a matter for the High Court, sir.

We all are obliged, sir, to obey the law. You, I and everybody else. So should the Public Trustee, sir. That is the basic issue here today. Well, will be - - -

HIS HONOUR: No, it is not the basic issue here today, I am afraid.

MR CALDAR: No, more the basic issue why I am asking for the application, sir, on those grounds.

HIS HONOUR: I understand. Very well.

MR CALDAR: A stay of proceedings, so this issue can be aired either in the High Court or in the New South Wales Court of Appeal. Sir, this issue has never been basically brought to the court before. This is the thing. Every time I have tried to bring the issue before the court I have been thwarted in one way or another either by the court, sir, or the Public Trustee. Now, this time, I think, sir, the issue should be aired and the court either decide itself, sir, or put it before a judge and trial with a jury and let the people of the State here themselves decide whether I am right or whether I am wrong, or whether the court is right or the court is wrong.

HIS HONOUR: I will take a short adjournment.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.22 AM:

HIS HONOUR: I do not need to hear from you further, Mr Rugless.

This is an application by summons filed 1 February 2005 for reinstatement of a special leave application. The application was filed as long ago as 30 March 2004 and stands as abandoned by operation of the High Court Rules.

The application for special leave was in respect of refusal by the New South Wales Court of Appeal of leave to appeal from a decision of Master Macready delivered on 5 December 2003.

I have considered the materials put forward in support of the reinstatement application and what has been said this morning by Mr Caldar. However, the circumstances upon which Mr Caldar relies to explain the delay in complying with the Rules of this Court as to the preparation of special leave applications are inadequate to provide a sufficient explanation for that delay.

Accordingly, the summons is dismissed with costs. I will now adjourn.

AT 10.24 AM THE MATTER WAS CONCLUDED