Vasiliou v Tasiopoulos Lambros & Co [2006] HCATrans 457 (24 August 2006)

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Vasiliou v Tasiopoulos Lambros & Co [2006] HCATrans 457 (24 August 2006)

Last Updated: 15 September 2006

[2006] HCATrans 457

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M85 of 2006

B e t w e e n -

ANDREW VASILIOU

Applicant

and

TASIOPOULOS LAMBROS & CO

Respondent

Application for stay

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 11.26 AM

Copyright in the High Court of Australia

MR A. VASILIOU appeared in person.

MR M.J. GALVIN: Your Honour, I appear for the respondent. (instructed by Tasiopoulos Lambros & Co)

MR M.E. LHUEDE: Your Honour, I seek leave to appear for the trustee. (instructed by Piper Alderman)

HIS HONOUR: Before I embark on the hearing of this matter, can I just ask of those engaged in the matter how long they think it will take.

MR GALVIN: I would estimate it would take probably 15 minutes, your Honour.

HIS HONOUR: Mr Lhuede, have you any estimate of time?

MR LHUEDE: I would not disagree with my learned friend’s estimate.

HIS HONOUR: Yes, let us get on with it and proceed with the matter. Your application, I think, is it, Mr Vasiliou?

MR VASILIOU: My application is for a stay, your Honour, of my bankruptcy, of my sequestration order made on 14 September.

HIS HONOUR: Just a moment, let me make sure that I have the right papers and that we all have the necessary papers immediately to hand. Your summons is that of 3 July or 30 July – just one moment. Your summons of 3 July is the application for a stay. You have in support of that an affidavit which you have sworn on 30 June, is that right?

MR VASILIOU: Correct, and I have another affidavit which I faxed last night, your Honour.

HIS HONOUR: Yes, just a moment. That is in fact an affidavit in answer to an affidavit of Mr Lambros, is it, sworn 23 August?

MR VASILIOU: Yes, that is right, sir.

HIS HONOUR: You answer that with an affidavit sworn also 23 August and there is also, finally, an affidavit by Mr Marchesi, the trustee, which is sworn also 23 August. Now, do I have then all of the affidavit material that parties seek to rely on?

MR VASILIOU: Yes, sir.

HIS HONOUR: Yes. Now, is there any objection to any of the affidavits that have been filed?

MR GALVIN: No, your Honour.

HIS HONOUR: Let me take a moment, Mr Vasiliou, you take a seat, and let me read the affidavits in some cases again. Mr Vasiliou, I have looked at your affidavits and I have looked briefly at the answering affidavits. What is it you wish to say? Before you say anything, I wish you to understand one thing. I do not wish there to be any mistake about it. I will not have this Court used except for its proper purposes.

MR VASILIOU: Correct, yes, I agree with you, sir.

HIS HONOUR: You will frame your submission having regard to that fact. Do you understand me?

MR VASILIOU: Yes, explain to - - -

HIS HONOUR: What is it you wish to say to me?

MR VASILIOU: Tell me, sir, what do you mean by what you just said, sir, explain to me - - -

HIS HONOUR: Please proceed with your submission.

MR VASILIOU: Pardon?

HIS HONOUR: Please proceed with your submission.

MR VASILIOU: The situation, sir, here is it is an extraordinary circumstance situation here. We are facing a criminal activity throughout this case. It originated at VCAT some years ago, now 10 years ago. Then it went to the Supreme Court and from the Supreme Court it went to the High Court and back to the Supreme Court. But leaving that aside, we are facing a situation that we have an application by a party named Tasiopoulos Lambros Solicitors who has presented for payment a false statement of claim against me.

I had employed a firm to do certain work. Not only they did not do what I asked them to do, but they – in fact I introduced them into my affairs at the time. They made a mess of it and now I am suffering the consequences. I had paid them, prepaid them, throughout the short and bitter engagement and I part then been using them in October, about 8 or 9 or 10 October, about those three days, because when I arrived at their office to go to VCAT for a small matter of a $10,000 contract that I had with a party they asked me to pay them $4,500, prepay them into their trust account.

Now, at the time I knew they were not ready to represent me at the time and they were just using that as an excuse, so I said, “I am not prepared to pay you because I know you cannot do the job anymore, you have not been doing your job properly”. So they said, “Right, we are not acting for you anymore in those bases”. They have sent their fax to VCAT saying they are no longer acting for me. I went to VCAT by myself, I represent myself, and throughout the hearing I engaged other lawyers which I prepaid them, two other firms. Then I went through the whole thing and a year after that time, sir, I received a bill of 20-something thousand dollars from Tasiopoulos Lambros firm.

I was really upset because amongst that $20,000 or so there was about $12,000 or something for VCAT services that they claim they have rendered to me which in fact I already paid them at the time when they did their services, prepay them, and they did not represent me at VCAT. At that stage I have – soon after that account was issued a Magistrates Court complaint was issued against me. I have filed a defence with the Melbourne Magistrates Court. Subsequently, during that process I had a heart attack. I was taken to the hospital and I had a heart operation. Subsequently, the court has asked us for a pre-hearing conference.

We have adjourned it once because I was still in hospital, but the following January because I was severely sick I telephoned the solicitors and I asked them not to go through with any court cases because I was very ill in bed, I could not recover. But they did, they went back to the Magistrates Court on the day that I was – had it mixed up as a hearing and they obtained a default judgment, your Honour. Soon after I applied to the court for that default judgment to be set aside; they denied me that right. Subsequently, the matter has been set aside and I was concentrative of the other matters that I had with that VCAT matter that went wrong.

Nevertheless, in 2004, I went before the Court of Appeal at the Supreme Court to get the matter heard about that VCAT matter that had returned from the High Court. Subsequently, my ex-solicitor has used that.....default judgment order to serve me in order to send me bankrupt. The notice was not served upon me but it was left on the windscreen of my brother’s registered car. Subsequently, I responded. I applied to the Federal Court of Australia through an application for two things. One, to set aside that bankruptcy notice. Two, to extend the time of the compliance. On 15 June Registrar Connard made an order which I have a sealed copy for you if you want to have a look at it, sir.

HIS HONOUR: Let me understand - - -

MR VASILIOU: Make - - -

HIS HONOUR: Just a moment.

MR VASILIOU: Yes, sir.

HIS HONOUR: The application for special leave is an application for leave to appeal against the order of his Honour Justice Gray of 29 September 2005, is that right?

MR VASILIOU: Correct. That is right, sir.

HIS HONOUR: Where do I find that order?

MR VASILIOU: I have got it here for you, sir, you want it? I have got all the orders here for you, sir. Do you want me to give you the folder, sir?

HIS HONOUR: No, I do not. Just one moment. By those orders he dismissed certain appeals that you had instituted against decisions of registrars, is that right, or against - - -

MR VASILIOU: He dismissed the appeal that I made against the Sundberg J’s order, which I have got a copy of it here if you want it, sir.

HIS HONOUR: Yes.

MR VASILIOU: The appeal before Justice Gray was like a court of appeals, like a single judge but he had powers of a court of appeals within the federal court.

HIS HONOUR: Now, what is the order that you would ask me to make?

MR VASILIOU: Today, sir?

HIS HONOUR: Yes.

MR VASILIOU: I want you to order that a stay of my sequestration or bankruptcy order take effect immediately.

HIS HONOUR: How do I do that in the context of the application for special leave?

MR VASILIOU: How do you do that, sir? I mean - - -

HIS HONOUR: You seek to challenge orders of Justice Gray.

MR VASILIOU: Correct.

HIS HONOUR: Why should I make an order dealing with the bankruptcy?

MR VASILIOU: Because, sir, the matter at this point of time, it came to an emergency stage. My sequestration order against me, it is a dramatic error throughout. Now, if, while I am appealing this decision, the sequestration order stays there, then I cannot be sustained any more. The whole thing will collapse and at the end of the day when you come to hear or give me leave to hear there will be nothing left. Maybe I not be still alive either. So it is an emergency application today before this honourable Court.

This matter has dragged on in extraordinary circumstances, your Honour, amazingly circumstances with a lot of criminal input, your Honour. Yes, I will be truthful to your Court, your Honour. I am sorry if I use bad words that you might find it, you know, strong, but that is the reality, your Honour. Another issue that I want the Court to put a stay on my bankruptcy is that my trustee, Mr Brendan Marchesi, is of a criminal nature, your Honour.

HIS HONOUR: I will not have allegations of that kind made in my court room. Do you understand that, Mr Vasiliou?

MR VASILIOU: I do understand that, your Honour.

HIS HONOUR: You will be quiet, sir. There is either evidence or there is no evidence.

MR VASILIOU: There is.

HIS HONOUR: You will be quiet while I speak to you, sir. Do you understand me?

MR VASILIOU: That is okay, sir, no worries, but I must tell you the truth.

HIS HONOUR: Be quiet, sir, and wait until I ask you to speak. Do not let there be any misunderstanding. I will not have allegations of that kind made in this Court unless they are necessary and appropriate to the proceedings of this Court. This Court will not be used as a vehicle for the making of allegations of any and every kind which somebody wishes to make. I have read your affidavit. In that affidavit you make very large accusations against a very large number of people. You do so apparently without condescending to the particulars of the evidence that would support them. Your application is an application for stay of certain orders. What is it you wish to say in support of that application? Go ahead.

MR VASILIOU: Sir, I apologise for finding in my affidavits some things that you might find strong, but I strongly believe that this Court has to know the truth.

HIS HONOUR: I will not debate them with you, Mr Vasiliou. Please proceed with your application. What else is it you wish to say in support of your application for a stay?

MR VASILIOU: I say, your Honour, that the debts in question has not been heard by the Court. The principal case that drives this bankruptcy alive is nothing more than a small default judgment order which has not been heard by any court at this point of time, your Honour. Despite all this long history of judges and federal magistrates and this and the other, no judge or magistrate has heard that case yet. It remained a case that has no basis that can sustain such an aggressive action against me for so long. It cost me so far $1,000,000 in damages at my end. My trustee is looking for $500,000 for his action and the bill just keep going, your Honour.

If a stay is not applied today, I might ask the Court, if possible, to remove my trustee and replace it by some other as an alternative. That is the issue here today, sir. Another issue that I want to stay is important for me to pay urgent and existing debts and clear the matter that has been backed up into the system and has been blocked on the other end by my trustee in bankruptcy. In fact, what I am intending on doing is to pay all the debts except the three debts that are in dispute and they have to go before the court – three debts which has not been heard by the court yet. I have substantial claims against those three debts, your Honour.

The reason I want a stay is purely to clear the air and to clear the path and to stop damaging and substantial losses to take place further. It is to stop the carnage of loss. The vehicle is out of control and keeps damaging on its path lots of things and it has to be stopped. That is what I am asking the Court today, your Honour. By stopping the vehicle it will be no harm to these three creditors which ultimately they will get paid if a court says so. But until that time, I want to be able to be given the opportunity to have my matters dealt by the court of this country.

This kind of sequestration order made on 14 September against me at my absence without being served with the documentation, changing the times and the dates of the act of bankruptcy which I did not commit, it is unfounded, your Honour. If we had the right people throughout, I would not be here today, your Honour, to upset you either. I am sorry if I have upset you, but you must understand people like myself. There is a lot behind it here that you cannot see, your Honour. If you see, you would be shocked, your Honour.

So, when I am using words, I am using words because I know they are true, your Honour. I am not using it because of fun. I am very careful but I have to use those words. So this is the story, your Honour. I need relief today because the matter cannot go on any more, not even a month. It cannot go any more. It is finished. It comes to a halt and it is before this Court.

Now, I am prepared to take an undertaking to secure those three creditors somehow until the outcome of any proceeding that will take and all the things can be arranged, but I need to deal with urgent debts. They are piling up and it causes a lot of mess, your Honour. As I said earlier, if I had a proper trustee, a proper.....in accordance with the law, I would have no problem. I would not even have to apply to the Federal Court for any remedy because my trustee will fix things up for me. He will help me fix up the default judgments. He will allow me to go to court and have them dealt with. He will help me in accordance with the law to get out of that.

The Bankruptcy Act, your Honour, it is very wide. There are many opportunities for people to fix up the things, but that right, your Honour, has been denied from me, your Honour. My trustee, he just denied me anything. Anything I ask him, he says no. What he is doing now, your Honour, is building up wealth. If you think that is normal, if you think that is legal, it is up to you, but I must inform you that at the moment we have bad things happening around me, your Honour. I must tell the Court. Who else do I tell? If I do not tell the Court, I cannot tell it to myself. The Court should listen to people whatever they say.

I know, I have been through it, your Honour, and I can show you. If you make the proper arrangements, I can take you through it step-by-step and show you where these people went wrong. It is not a matter of my imagination. Although I use strong words just to emphasise my application, it is truth, your Honour. If you do not want me to tell you the truth next time I come in here, I will not. But, in my view, I must tell the Court.

In particular, I have great respect to the High Court of Australia, your Honour. If you do not respect your courts, then there is nothing here for us. We are uncivilised people. But we must tell the courts if something happened to us drastically wrong. That is why it is the process and that is what I have done, your Honour, and I am sorry if I upset you, but I had no intention of doing so. My intention is that I am a very wise person and I took notes of everything that happened around me in the last two years and
I went through a lot of things, your Honour, that you could never believe it happened, but it happened.

It is not allegations, your Honour, it is the truth. I am sorry if I upset you, I had no intention to upset you, but I want to tell you the truth. That is what I wanted to tell you, your Honour. This matter it just come to such end, my trustee blocked everything up, it would not allowed nothing to be paid. I have, through my wife, borrowed X amount of dollars and paid urgent bills so far, but now I run out of securities, I run out of alternatives and I want to be able to have the opportunity to have my matters dealt with at court. That is my submission, your Honour. Thank you.

HIS HONOUR: Yes, thank you. Yes, Mr Galvin.

MR GALVIN: Your Honour, two points are made by my client in opposition to the application. The first point is that the proceeding before you, the stay application, is an abuse of process. As your Honour will see from the affidavit of my client and instructor, Mr Lambros, there have been a number of applications in other places, in other courts, in the Federal Court, namely, to stay the sequestration order or the bankruptcy. The affidavit of Mr Lambros, I should say is intended, more or less, as a chronology of the various proceedings which have led to today’s application.

Your Honour will see in paragraph 30 of that affidavit an application to stay the bankruptcy was made on 11 November and dismissed on that day by Justice Sundberg. Your Honour will see in the following paragraph a similar application was made on 14 December, essentially the same application. That application was subsequently dismissed by his Honour Justice Gray. That is referred to in paragraph 34.

HIS HONOUR: When was the sequestration order made?

MR GALVIN: That you will see is referred to in paragraph 25. It was made on 14 September 2004. What his Honour Justice Gray was dealing with in the decision which is the subject of the special leave application was an appeal from a decision of Federal Magistrate Phipps dealing with the refusal to set aside a bankruptcy notice as well as a decision of Federal Magistrate O’Dwyer dealing with the review of that sequestration order. So there was a bankruptcy notice proceeding, if I can call it that, and a bankruptcy petition proceeding, obviously interrelated. His Honour Justice Gray dealt with both of those and dismissed Mr Vasiliou’s applications in both areas and - - -

HIS HONOUR: There was a further application for stay of all orders made by the federal magistrate which also failed.

MR GALVIN: Yes, sir.

HIS HONOUR: Subsequently, there have been two further applications for - - -

MR GALVIN: Removal of the trustee?

HIS HONOUR: But for stay also, have there not?

MR GALVIN: Yes, sir. That was the first point, your Honour, that the proceeding is an abuse of process. The second point which is closely related is we would rely on the principles of this Court stated in Jennings v Burgundy. I am sure your Honour is very familiar with those principles and the four factors which would - - -

HIS HONOUR: Yes, it is Jennings v Burgundy Royale [1986] HCA 84; 161 CLR 681.

MR GALVIN: Yes, sir. The four factors, if you like, identified by his Honour Justice Brennan in that decision are, firstly, that the Court must be satisfied that there is some substantial prosect that special leave to appeal will be granted. In this case, your Honour should be aware that there is also a concurrent application for leave to bring the application for special leave out of time, some nine months after the orders of his Honour Justice Gray. My submission would be on the material there is no basis for concluding that there is some substantial prospect of success.

The second factor identified by his Honour Justice Brennan was the steps taken in the court below to procure a stay. As your Honour has seen, there were a number of attempts to procure a stay. They were all refused justifiably and there is no material before your Honour which would warrant a different outcome here.

The third factor is whether the grant of a stay will cause a loss to the respondent. Your Honour will have read in Mr Marchesi’s affidavit, the trustee’s affidavit, that he made an application for declarations about three properties vesting in him. Your Honour should be told that yesterday his Honour Justice Weinberg handed down a decision in that case in favour of the trustee in bankruptcy, so the vesting of those properties is now confirmed by the Federal Court. He has taken numerous steps to secure those properties. The circumstances set out in his affidavit are that he has done significant work in this bankruptcy and at a great cost to the estate and it would be inappropriate in those circumstances at this stage for the sequestration order or, rather, the bankruptcy in any sense stayed.

The fourth factor identified by his Honour Justice Brennan is, of course, the balance of convenience. There is, in my submission, no evidence in Mr Vasiliou’s material to support any suggestion that the balance of convenience would favour the granting of a stay. To the contrary, Mr Marchesi’s work as trustee in the bankruptcy is such that it would be gravely inconvenient to him and to the creditors of the estate for a stay to be granted at this stage, particularly having just been granted orders declaring his rights with respect to those three properties yesterday by his Honour Justice Weinberg. Unless your Honour has anything further for me, those are my submissions.

HIS HONOUR: No, thank you, Mr Galvin. Mr Lhuede, does the trustee seek to be heard?

MR LHUEDE: Your Honour, I would not have anything further to say other than Mr Galvin has put to the Court. I am otherwise here to assist.

HIS HONOUR: Thank you. Yes, Mr Vasiliou, what do you wish to say in answer?

MR VASILIOU: Your Honour, the Court here it is part of the traditional system. This High Court of Australia it is put in place for people like me when people below ignore everything that I am telling them or everything that I present them; that the last avenue that I have got is the High Court of Australia. That is why I am here today, your Honour. Now, the long history that Mr Lambros put in his affidavit should not be any basis for this Court to deny me access to this legal system. It is simply a long and painful situation which a lot of judges – it just went through a lot of judges and magistrates and no one ever heard the matter. His matter, his judgment, his default judgment, nobody ever heard that. It just remains as a default judgment.

In fact, the senior magistrate at the Melbourne Magistrates Court in 2004, he ruled that I have a right to be heard and then he put the case forward into the right direction for a hearing to take place at the Melbourne Magistrates Court and another judge came in the next time that the matter was called in and then said, “No, no, no, we can’t have this reheard any more, finished, I dismiss your application”. Subsequently, I told that magistrate, “I am going to appeal your decision”. He said, “Yes, you got 28 days to appeal”.

I did make an application to the Supreme Court. When I arrive at the Supreme Court, the Supreme Court told me, “Look this matter has to go back to the Magistrates Court to be heard. This default judgment order, it is not a final order that the Supreme Court will hear an appeal of. It has to go back to the Magistrates Court”. So they make me write another application and had a magistrate brought as a defendant listed on that proceeding. I serve the parties, returned to the court for a hearing and my trustee, your Honour, had come in and terminated that process.

Now, the court seen the injustice at the Supreme Court. The master made a special order that I can go back at any time excluding the time limit and have that matter heard again. They are waiting for me to be heard, your Honour. If I have a stay here, I ask my trustee, give me permission to go there. He says no. He does not give me permission to deal with these matters. I ask him to go behind the judgment, he does not want to. I ask him to get information about the debt or have someone professionally to look at it, he refused every opportunity, your Honour. That is why that I need a stay so I can deal with those matters, your Honour. It is an access to the legal system.

Now, my trustee says here that he spent a lot of money. Well, he has not spent a lot of money of doing any good to me or to anyone in my bankruptcy. What he did is build up wealth for him. That is what he done. He says he spent $500,000. He could easily spend some of that money and defended that matter that I had, the principal matter with Tasiopoulos Lambros, in court. It would have cost $10,000, $20,000 and would have been much more wisely spent than spending $500,000 to do what? He just keep building and building and building.

He evicted all my tenants from a building in South Yarra that I used to get $50,000 a year. The building it has been vandalised, it remains empty, the doors broken, the furniture broken, everything is broken and now it is a shamble, and we lost $100,000 in rent. He did not allow me to pay the mortgage either that was involved there. The mortgagee starts to sell the property. They spend another $100,000 on trying to sell the property. He does not allow me to pay the rates. The rates people trying to sell another property, another $50,000 lost in legal fees. You do not have no idea. If you have an idea what these people are doing to me, sir, you would probably find it absurd. It is an extraordinary situation here.

Nevertheless, what I would like to do, your Honour – I know for sure I will win the leave to appeal because I have got orders here that it supports my argument and I can present them to you, your Honour. I have got a sealed order. In every stage, I got a sealed order here that says what has to be done, but they have been all ignored, your Honour. Everything is ignored, including at the time of my sequestration order I was not even served with a petition, your Honour. When they come to court by themselves, your Honour, drastic changes were made to that petition without a service, your Honour.

Your Honour, you must understand what I am saying to you is the truth. I do not want you to do things that I want you to do, but I want you to understand fully where I am coming from. That is why I want your Court – and this is the Court – this is my last avenue, so to speak, and I am forced to come here. I do not want to come to the High Court of Australia. I want to deal with my matters down below but, no, I was denied every opportunity, your Honour. I have been through a lot of pain and suffering, your Honour.

You have got this nine months delay on the application. It is not my fault. It is Justice Gray. It took him three months to deliver the reasons for his judgment. I have to wait to get the reasons before I filed to the Court my application for special leave. Then, when I received the reasons, it was Christmas and I got seriously sick and for six and eight months after I was just like a vegetable. I could not think, I could not talk, I was in bed all the time taking stress tablets and things like that. This is the first time that I have controlled things and I can do things calmly. It is some kind of a peace coming to my mind recently and I can do one thing at a time. But all this bankruptcy thing, it created a lot of fires everywhere. You do not understand how many fires I have as a result.

That is why this stay it is a must. Things cannot go on any more like that. It has just gone out of control. Someone has to turn the fires off. It is burning and burning and burning, and by turning it off, these people, they are secured, they are fine until the Court makes it’s decision. Now, as I said earlier, your Honour, if I had a good trustee that I should have by the law, then I would not have a problem, a single problem. It would have been all solved out within one or two months in the early stage and everything would be defused. But they are still having the firemen to come and turn the fire on. You have got petrol, tank of petrol, and just put petrol on the fire, and the fire just got out of control and it keeps burning and burning buildings, it is burning money, it is burning costs, it is burning, burning, and I am in the middle of that, handicapped, trying to do my best, and I have done my best, your Honour, for two years now.

I have managed to pay most of the people, bought mortgages off and all that sort of thing. I had my wife to borrow money and pay all these things and keep the stability. But from now on I cannot. No, I cannot do it for another month. It is finished. The resources are finished and it will be a total catastrophe. That means everything will be lost and I will have nothing, your Honour. That is the situation we are facing here.

I would like you to have a look at this book with the orders, your Honour. You can see in particular – in particular in here we have got the first – my application is made in June 2004 to the Federal Magistrates Court. The application is that an extension of time to comply is extended. That is one item, that an application was made to the court to set aside the bankruptcy notice. On 15 June 2004 Registrar Connard made the following orders:

1. The time for compliance with the bankruptcy notice number VN 885 of 2003 be extended until 4 pm on 29 June 2004.

2. The applicant serve the application, a copy of the affidavit in support and a sealed copy of this order on the respondent forthwith.

3. Costs be reserved.

Then we come to 29 June.

HIS HONOUR: These matters are recorded, are they not, in the affidavit of Mr Lambros?

MR VASILIOU: It is recorded, your Honour, but you do not know the emphasis of it. The emphasis is the court ruled on 14 September that I committed an act of bankruptcy on 29 June, when I have got a court order here to say that the further of this application is adjourned to 12 July. I did not make an act of bankruptcy on any of those stages, your Honour. So the submission that I did commit an act of bankruptcy on 29 June 2004 is not true because the sealed orders are here, your Honour. It can prove to you in five minutes that that is not the case. And that is the merit of my application, your Honour, is that at the time when the court says Andrew Vasiliou did commit an act of bankruptcy, it is not true. It is not true, your Honour.

I have come a long way, your Honour. I am really, really hurt. My health, your Honour, it has come to the stage that many times I am thinking of committing suicide, and I am going to do that if there is not going to be a resolution, and if the courts keep just brushing me away like they did for the last two years and dismissing this and dismissing that and dismissing that, well, the whole thing is going to get dismissed one day. I will be dismissed out of this world.

The aim of Tasiopoulos Lambros’ affidavit, the reasons for that is to tell you that the other people said no, so you can put your name underneath. Such a horrible judge of the High Court said no, and then we keep going. That is not the case. The case is each judge has to deal with the matter, not relying on other people. If that is the case, they would have no Court of Appeal. Why? If we just say, “Well, the other magistrate is all right, why we worry about it?”, then we have no appeal process, your Honour. We might as well just say, “Well, whatever the first judge says, we’ll do”.

That is why the appeal process is in these stages. If one judge makes a mistake or one magistrate makes a mistake, you can go to the Supreme Court, to the single master. Then if the master does not want to listen to you, you can to the single judge. If the single judge does not listen to you, you go before two or three judges of the Court of Appeal. And if they say no, you can go to the High Court. I mean, this is the system we have got in Australia.

Now, all these people, someone might listen to you. It is no good that attitude that, “Oh, you’ve been heard before, maybe we should hear you again”. That is not what the system is all about, your Honour. This business about a sequestration order and when you make an appeal there is no automatic stay, that is a bad law, your Honour, very bad law. It is like somebody put fire into your house and then you just let the flames go without turning it off. It is just very bad.

This sequestration order – and I am going back and telling you, your Honour, if I had a proper hearing done at the Federal Court, if there was no corruption to place there, your Honour – I am sorry to use those words – then I would not be here, your Honour. The court would just say to them, “Sorry, get the Supreme Court to hear the matter, get the Magistrates Court to finalise the matter, then you can come to me for bankruptcy”. Bankruptcy people go there when they cannot pay their debts and these people say I’ve got plenty of money to pay my debts, your Honour, lots of money to pay my debts, and I am honourable person in this country. I came to Australia 40 years ago and I should not be bankrupt and the status of me being bankrupt is wrong and unlawful. I am telling you it is unlawful.

So I am having the opportunity here today – I am sorry to upset you, your Honour, but you will think of me one day. You will think of my words. It is no good listening to other people. You have got to make up your own mind on everything, and if I was a judge I would do exactly like that. It is no good listening, “Oh this judge did this and he dismissed it and the other dismissed it and the other dismissed it”. Of course they have not dealt with it. There is a lot of bad, bad things here, your Honour, very bad. I should not be here. Why should I be bankrupt to start with and why this registrar ruled at the end of September - - -

HIS HONOUR: Mr Vasiliou, you will - - -

MR VASILIOU: It changed.

HIS HONOUR: Mr Vasiliou, direct yourself to the application - - -

MR VASILIOU: Well, your Honour - - -

HIS HONOUR: Just be quiet, will you?

MR VASILIOU: Okay, sir.

HIS HONOUR: You will direct yourself to the application that is being made. You have a chance to reply to what has been said against you. If you have nothing further to add in reply - - -

MR VASILIOU: Well, I am adding, your Honour.

HIS HONOUR: - - - bring yourself to a conclusion. If you have something to say in reply, say it. Now, what is it you want to say?

MR VASILIOU: Well, I already said it, your Honour, and I will say it again. I have to have a stay on my bankruptcy or I have to have another trustee to enable the urgent bills to be paid. It cannot just go on like that, or we might as well forget about the whole special leave to appeal then and we just call it quits, and we say there is no court, then we say there is no judgments, there is nothing. If we are going to have the opportunity of this application of mine which is very genuine, your Honour, to succeed and go further, this stay has to apply. It cannot go on like that. If we can, we would.

I try very hard to hold on to a ship with a big hole in it, trying to keep it afloat. It is a very unfortunate thing what happened to me, your Honour. It is a terrible thing to happen to a human person, and just think of yourself to be in my position, your Honour. Just think of yourself. I have got no words to describe to you what I have been through. Sometimes I used to come in front before the registrar and I have to tell him that I am really, really sick, ready to collapse. The last couple of months I have been fine and I thank God for that. I have been fine and I can go around and do a few things. But it is not fair for – my application should be allowed if the door of natural justice is to remain open. If the door is shut, it is like suffocating in a room with no breathing air at all. That is what I am....., your Honour. I am finished, your Honour.

HIS HONOUR: Yes, thank you, Mr Vasiliou.

On 30 June 2006 Andrew Vasiliou filed an application for special leave to appeal from the whole of the orders and judgment of the Federal Court of Australia given by Justice Gray on 29 September 2005. He now applies by summons of 3 July 2006 for an order staying his bankruptcy and any further order that is seen as appropriate. To explain the application for special leave and the application for stay that must now be considered, it is necessary to record something of an extended history of litigation.

The respondent, Tasiopoulos Lambros & Co, provided legal services to Mr Vasiliou during 1997 and 1998 in connection with a dispute that Mr Vasiliou had with two companies. On 25 January 2000, Tasiopoulos Lambros & Co obtained judgment in default of defence in the Magistrates Court of Victoria against Mr Vasiliou in an amount of over $20,000. Judgment was entered in default of defence because earlier at a pre-hearing conference Mr Vasiliou, having failed to attend, his defence was struck out. Mr Vasiliou’s application for rehearing of the proceeding in the Magistrates Court was ultimately refused in March 2000.

In September 2004 a Registrar in the Federal Magistrates Court made a sequestration order against the estate of Mr Vasiliou on the petition of Tasiopoulos Lambros & Co. Mr Brendan Marchesi became trustee of the bankrupt estate of Mr Vasiliou. The making of the sequestration order had been preceded by a considerable amount of litigation, both in the Federal Magistrates Court, in the Magistrates Court of Victoria and in the Supreme Court of Victoria. It is, I think, unnecessary to trace the steps that were taken in that litigation.

Following the making of the sequestration order Mr Vasiliou gave notice of appeal against that order in the Federal Court of Australia and at the same time made application to the Federal Magistrates Court for a review of the order. The application made to the Federal Magistrates Court was dismissed and the sequestration order affirmed. Mr Vasiliou sought to appeal to the Federal Court against these orders of the Federal Magistrates Court.

In November 2004 Mr Vasiliou sought a stay of his bankruptcy. That application was dismissed by Justice Sundberg on 11 November 2004. In May 2005 he applied for an order removing Mr Marchesi as trustee of his bankrupt estate.

The orders made by Justice Gray on 29 September 2005 disposed of a number of separate proceedings. First, they disposed of the appeal brought by Mr Vasiliou against the decision of Federal Magistrate Phipps dismissing an application for review of a decision of a Registrar of the Federal Magistrates Court which had been given on 2 August 2004 concerning an extension of time for compliance with the bankruptcy notice that had been allegedly served on Mr Vasiliou.

Justice Gray’s orders also dealt with an appeal against a decision of Federal Magistrate O’Dwyer dismissing Mr Vasiliou’s application for review and affirming the sequestration order that had been made on 14 September 2004. Finally, Justice Gray disposed of a notice of motion filed by Mr Vasiliou seeking a stay of all orders made by the Federal Magistrate.

The orders which Mr Vasiliou would now seek in this Court, although expressed in the form of a stay of the orders of Justice Gray, may perhaps best be understood as seeking either a stay of the bankruptcy or, alternatively, some form of injunctive relief having the effect of working a stay of the bankruptcy. It is neither necessary nor appropriate to embark upon any close analysis of the way in which the application may be framed so as to bring it within the undoubted jurisdiction of this Court to preserve the subject matter of litigation in a way that would permit the effective consideration of an application that is made for special leave to appeal to this Court.

It is to be recalled, however, that, as Justice Brennan said in Jennings Construction Limited v Burgundy Royale Investments Pty Limited [No 1] [1986] HCA 84; (1986) 161 CLR 681 at 684:

A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

The reason for applying that description to the order is, as his Honour went on to point out, that:

If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal.

The special and extraordinary nature of the jurisdiction which it is sought to invoke in this matter is all the greater when the proceeding concerns the status of bankruptcy, for the proceeding concerns rights which extend beyond those of the immediate parties to the proceeding, implicating inevitably rights and obligations of others with whom the bankrupt has previously dealt, and implicating the rights and obligations of the trustee who, in pursuance of the order made, has taken possession of the bankrupt estate and undertaken its administration in accordance with the Act.

In Burgundy Royale Justice Brennan identified four considerations as bearing upon the exercise of the Court’s discretion to grant orders the effect of which would be to preserve the subject matter of litigation pending the determination of an application for special leave to appeal:

first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

It may be that further and larger hurdles are to be intruded in the way of an applicant for relief of the kind which it would be necessary to grant in this case to obtain the effect which Mr Vasiliou seeks in this matter, but for present purposes it is convenient to proceed by reference to Justice Brennan’s statement of the applicable principles.

In support of his application, Mr Vasiliou’s affidavit contains a history of the proceedings that have been undertaken, in the course of which he makes very large allegations about the honesty with which courts have dealt with the proceedings that he has instituted or had been instituted against him. It is, I think, unnecessary in this case to embark upon the serious questions thus presented about whether the affidavit that he has filed is properly described as containing scandalous matter. I proceed on the assumption, which may be open to doubt, that the affidavit should be received and acted on. It is then important to recall some matters of chronology.

The bankruptcy order which is the ultimate source of the rights whose enforcement Mr Vasiliou seeks to intercept was made as long ago as September 2004. The order of the court which is the subject of the application for special leave was made in September 2005. The application for special leave was not filed until 30 June of this year. Mr Vasiliou seeks to explain the intervening nine months by reference first to what he contends was the time taken by Justice Gray to produce reasons for judgment, and second, by reference to intervening matters of health affecting Mr Vasiliou personally.

Even giving these considerations the weight which Mr Vasiliou would attribute to them, the fact remains that the bankruptcy was ordered as long ago as September 2004, the trustee has been obliged to act in accordance with the Act since that time and the administration has now been in hand for nearly two years.

The grounds advanced in support of the application for special leave to appeal are grounds which do not immediately articulate any point of general principle about the operation of the Bankruptcy Act; rather, they focus upon what Mr Vasiliou would contend was the fundamental injustice that is reflected in the course of the proceedings that has led to and ensued following his bankruptcy. It is not immediately apparent, either from the application for special leave to appeal, the draft notice of appeal or other documents filed in support, notably the written case, that it could be said that there is a substantial prospect that special leave to appeal would be granted in this matter.

In any event, there is, in my view, no doubt that the balance of convenience in this matter lies firmly against granting the order which Mr Vasiliou now seeks. He has repeatedly sought in his applications to the courts below to intercept the continued operation of the bankruptcy order that was made in September 2004. No arguable case of error is advanced in support of the proposition that the courts below erred in refusing to grant him that relief.

Where, as is the case here, the bankruptcy is as old as it is, the application for special leave is made as late as it was and where the grounds advanced in support of the application for special leave are framed as they are, I am of the opinion that the summons should stand dismissed. The order is summons dismissed.

MR GALVIN: Your Honour, as my client is the petitioning creditor in the bankruptcy, I seek an order that its costs be costs in the bankruptcy.

HIS HONOUR: How do I in this Court make an order dealing with costs in the bankruptcy? Is that not a matter for the court under the Bankruptcy Act; that is to say, the Federal Court or the Federal Magistrates Court?

MR GALVIN: The proceeding before your Honour is a proceeding that derives directly from the sequestration order.

HIS HONOUR: Yes, it does.

MR GALVIN: Any costs incurred by the petitioner in defending that order are really costs of and incidental to the petition.

HIS HONOUR: If that be so, the Federal Court or the Federal Magistrates Court, whichever be the appropriate court having the carriage of the bankruptcy, would treat them accordingly, would they not?

MR GALVIN: Yes, your Honour, but there is no proceeding alive in those courts. The only proceeding - - -

HIS HONOUR: Well, there is a bankruptcy.

MR GALVIN: Yes, your Honour, and I suppose we could go to the court and seek an order, but certainly I have been in this Court before and obtained a similar order in similar circumstances.

HIS HONOUR: From?

MR GALVIN: From I believe it was the Chief Justice and Justice McHugh, to the best of my recollection, a couple of years ago in the bankruptcy of a Mr Gao, I think his name was. It may have been in fact that your Honour was sitting on that Court at that time.

HIS HONOUR: I doubt it. I think it was an application for leave to appeal from me.

MR GALVIN: That may be, your Honour, I cannot recall. But I did seek a similar order and the Court was satisfied. I cannot take you to any authority, but I can say to your Honour that the Court in that case was satisfied it was an appropriate order, because the costs incurred by my client in being here today, indeed in connection with the High Court proceedings altogether, are costs incurred as the petitioner in the proceeding. The costs made by the Federal Court or the Federal Magistrates Court in the first instance were costs of and incidental to the petition, but of course that is only up to that date.

HIS HONOUR: What form do you say the costs order should take?

MR GALVIN: That the respondent’s costs of the stay application be treated as costs of the respondent of and incidental to the petition.

HIS HONOUR: Yes. Does the trustee seek to be heard against that?

MR LHUEDE: No, we actually would have been expecting an application of that kind and would certainly not be opposing it.

HIS HONOUR: Yes. The orders will be:

1. Summons dismissed;

2. Order that the costs of the respondent be the respondent’s costs of and incidental to the bankruptcy petition.

AT 12.40 PM THE MATTER WAS CONCLUDED