Anthony Gilbert Martin v Insurance Australia Limited

[2005] ACTCA 17

ANTHONY GILBERT MARTIN v INSURANCE AUSTRALIA LIMITED [2005]
ACTCA 17 (10 May 2005)

COURTS AND TRIBUNALS – appeals and application for leave to appeal against various orders – difficulties posed by unrepresented litigant persisting in irrational approach to litigation – interest of other party in having claim resolved – scandalous, vexatious and generally incoherent grounds of appeal – submissions failing to identify appealable error – requirement that notice of appeal state grounds relied upon – scope for latitude to unrepresented litigant limited by need to ensure fairness to other party.

Supreme Court Act 1933 (ACT)
Supreme Court Rules 1937 (ACT), O 86 r 19(2)(c)

State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

No. ACTCA 46–2003, 54-2003, 5-2004,13-2004
No. SC 1006 of 1988

Judges:         Crispin P, Gray and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date:            10 May 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 46-2003, 54-2003,
  5-2004,13-2004
AUSTRALIAN CAPITAL TERRITORY    )          No. SC 1006 of 1988
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY GILBERT MARTIN

Appellant

AND:INSURANCE AUSTRALIA LIMITED

Respondent

ORDER

Judges:  Crispin P, Gray and Marshall JJ
Date:  10 May 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeals and the application for leave to appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 46 – 2003, 54-2003,

5-2004,13-2004

AUSTRALIAN CAPITAL TERRITORY    )          No. SC 1006 of 1988 
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANTHONY GILBERT MARTIN

Appellant

AND:INSURANCE AUSTRALIA LIMITED

Respondent

Judges:  Crispin P, Gray and Marshall JJ
Date:  10 May 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant seeks to prosecute the following matters:

• An appeal, ACTCA 46 of 2003, against decisions made by Connolly J on 14 November 2003:

(a)dismissing motions to:

(i)issue a warrant of arrest for the Chief Executive of NRMA Insurance Limited;

(ii)have him charged with contempt of Court; and

(iii)have a solicitor who had been acting for the respondent charged with contempt of Court;

(b)refusing to grant the plaintiff an adjournment of the motion; and

(c)refusing to disqualify himself.

• An appeal, ACTCA 54 of 2003, against a decision made by Connolly J on 1 December 2003 to grant leave for short service of a notice of motion dated 1 December 2003 seeking orders that:

(a)pars 4(c), 5(a) and 5(b) of the plaintiff’s notice of motion dated 3 December 2002, as amended with leave on 13 December 2002, be struck out for want of prosecution; and

(b)the plaintiff pay the defendant’s costs of the motion.

• An application for leave to appeal, ACTCA 5 of 2004, against interlocutory decisions made by Connolly J on 1 April 2004:

(a)ordering that the costs of and incidental to a motion for leave to amend the pleadings by changing the name of the respondent from “NRMA Insurance Ltd” to “Insurance Australia Limited” be costs in the cause;

(b)dismissing a notice of motion dated 16 March 2004 that had sought the dismissal of the respondent’s motion and other orders; and

(c)dismissing an amended notice of motion dated 13 December 2002 seeking various forms of relief, including orders striking out the defence and giving judgment for the appellant in the sum of $715,295.86 as special damages and a further $200 million as general, aggravated and exemplary damages.

(The appellant also sought leave to appeal from certain other orders but those applications were heard and dismissed on 7 April 2004 and 12 May 2004.)

• An appeal, ACTCA 13 of 2004, against decisions made by Connolly J on 29 April 2004 to order that:

(a)the appellant have seven days to comply with the orders and directions made on 1 April 2004;

(b)the proceedings be dismissed pursuant to Order 33A(1)(a) of the Supreme Court Rules should the appellant fail to comply with this order; and

(c)           the parties have liberty to re-list the matter on the issue of costs.

1. No point was taken about whether leave may have been necessary for any of the appeals purportedly brought as of right.

1. The spate of litigation reflected in these matters commenced in 1988 when Individual Homes Pty Ltd (“the company”) brought an action against the respondent.  The company had granted the respondent a mortgage over certain land in Canberra to secure a loan obtained for the purpose of financing the construction of a number of townhouses.  The townhouses were duly constructed but the company experienced some difficulty in selling them.  Repayments on the loan fell into arrears and the respondent eventually exercised its power of sale.  The company claimed that, in doing so, the respondent had failed to fully comply with its obligations as a mortgagee by properly advertising the townhouses for sale and making them available for inspection.  As a consequence, it was claimed they had been sold for a significant undervaluation.  The company claimed damages for the loss on the eventual sales and added a claim for exemplary damages of $200 million.

1. In 1992 the company went into liquidation.  The chose in action was apparently assigned to the appellant, who had been a major shareholder and its managing director, and he was subsequently joined as the plaintiff in lieu of the company.  The proceedings remained dormant for some years though the statement of claim was amended to its current form on 16 August 1999 and on 22 December 1999 Miles CJ made an order requiring the parties to exchange lists of documents.

1. In September 2002 the respondent revealed that the loan or transaction file relating to the mortgage could not be located.  The appellant clearly believed, and still believes, that it was destroyed or withheld for some dishonest purpose, though he has never adduced any evidence to establish that.  By a notice of motion, dated 3 December 2002 and amended on 13 December 2002, the appellant sought a number of orders, including orders that the defence be struck out as an abuse of process, that a warrant be issued for the arrest of the respondent’s chief executive and that various people show cause why they should not be dealt with for contempt.

1. For reasons that are not entirely clear the motion was not heard until 14 November 2003 when Connolly J dealt only with the applications based upon allegations of contempt.  His Honour dismissed most of those applications but ordered that two be listed before a visiting judge on 3 December 2003 and that the appellant file a statement providing a succinct account of the relevant charges by 27 November 2003.

1. The appellant failed to comply with this order and the matter was brought back before Connolly J on 1 December 2003.  His Honour then ordered that the remaining applications relating to allegations of contempt be dismissed.

1. The other issues raised by the notice of motion were heard by Connolly J on 19 March and 1 April 2004 and dismissed.  His Honour then adverted to the need to get the matter on for trial, the proceedings having then been pending for more than 15 years.  His Honour ordered that the evidence in chief be by way of affidavit and gave directions as to the filing and serving of the affidavits with a view to having the matter heard later that year.

1. The appellant failed to comply with these directions and on 29 April 2004 swore an affidavit in which he made it clear that he had no intention of complying with them.  He asserted that his Honour’s orders were “null and void” and had a “tendency to pervert the course of justice amounting to criminal contempt”.  Connolly J was, understandably, left unimpressed by these assertions and later that day made a self-executing order to the effect that, if the appellant did not file and serve affidavits by 6 May 2004, the proceedings would stand dismissed.

10.  This order failed to persuade the appellant to comply with the previous directions and on 7 May 2004 the proceedings were dismissed by order of the Court.

11.  On 23 February 2005 the matters listed before us were called on for hearing.  At that point the appellant, who was self-represented, objected to any of us sitting on the hearing of the matters due to apprehended bias and what he described as “abomination”.  Despite repeated attempts to encourage him to articulate the grounds of his application in a comprehensible and reasonably precise manner, he failed to do so.  Instead, the arguments he advanced in support of these contentions were extremely discursive and consisted of a collection of allegations against the respondent, its solicitors, court staff, the judiciary and even the legislature which, he claimed had committed a fraud on the public by enacting sections of the Supreme Court Act 1933 (ACT). He repeatedly announced that he was intending to take these matters to the International Court of Justice which is, of course, a court established under the Charter of the United Nations for the resolution of international legal disputes between states.  A number of the allegations appeared to be quite scurrilous and no sensible basis for them emerged.  We were unable to discern any arguable ground for disqualification of any member of the bench and dismissed his objection.

12.  Mr Erskine, who appeared for the respondent, then moved upon a notice of motion on behalf of the respondent for an order that appeals ACTCA 46-2003, 54-2003 and 13-2004 be struck out for want of prosecution.  The motion had been brought in response to breaches of procedural directions and in the context of an affidavit filed by the appellant foreshadowing an application for an adjournment.  However, the appellant did not make the foreshadowed application and, in these circumstances, we concluded that it would be inappropriate to accede to the respondent’s motion.

13.  The appellant then indicated that the hearing was likely to take 3 to 4 days and, since that amount of time would not have been available for some months, we indicated that we would be willing to determine the appeals and the application by means of written submissions.  Furthermore, since the appellant had not attended for the settlement of appeal books but indicated that he had, nonetheless, prepared them, we indicated that we would give both parties leave to annex to their written submissions copies of any evidence that had properly been before the judge appealed from and was relevant to any grounds or foreshadowed grounds of appeal.  The appellant initially indicated that he would prefer to make submissions orally but ultimately agreed to the course proposed.  We proceeded to make orders to that effect.

14.  The appellant subsequently filed what is described as a “written submission” running to 262 pages and two volumes described as “appeal books” running to a further 943 pages.  The written submission consists substantially of transcripts of evidence, with certain passages highlighted in bold, larger type and/or underlining, interspersed by occasional comments.  However, this material was not augmented by any coherent argument directed toward identifying some appealable error sufficient to impugn any of the decisions the appellant sought to challenge.

15.  The appellant also filed further submissions in reply to those filed on behalf of the respondent, containing a brief account of the history of the litigation since 1988 and more focused arguments seeking to raise a number of issues.  In particular, the appellant alleged that “relevant” solicitors for the respondent had previously acted for him or the company, that the accuracy of transcript had been a disputed issue since 1988 and the Australian Federal Police should investigate his claim of tampering, that various irregularities had occurred during proceedings before Connolly J and that the respondent’s file was not missing but “warehoused”.  He also claimed that there was clear evidence of fraud on the part of the respondent.  However, even these submissions did not include any attempt to identify particular grounds of appeal, any evidence before Connolly J that was said to have been capable of proving the truth of any of the allegations, or any error of fact or principle sufficient to establish appealable error.

16.  The notices of appeal are also quite inadequate.  Many of the assertions relied upon as grounds of appeal are scandalous or vexatious whilst others are vague or expressed in general terms unaccompanied by any attempt to relate the allegations to particular findings or otherwise identify any ground of appeal with sufficient precision to enable it to be sensibly addressed.  There were some grounds that were reflected in well-recognised formulas, such as those alleging that decisions were “against the evidence and the weight of evidence”, but such general grounds were not related to any particular complaints that might have enabled suggested errors to be identified and considered.

17. Order 86 rule 19(2)(c) of the Supreme Court Rules provides, inter alia, that a notice of appeal must state “briefly, but specifically, the grounds relied on in support of the appeal”.  This is an important requirement that is intended to enable the respondent to any appeal to understand the case that it may be called upon to meet at the hearing of the appeal and the Court to identify the issues which it is required to decide.

18.  Whilst some latitude may be extended to an unrepresented appellant, the Court cannot act on notices of appeal that merely convey diatribes of complaint and fail to identify specific grounds of appeal.  Nor can the Court assume the role of an appellant’s counsel and formulate grounds of appeal on his or her behalf or trawl through the transcript of proceedings in a generalised quest for otherwise unidentified error.  It may sometimes be possible to permit an appellant to raise in argument a point that has not been clearly identified in the notice of appeal if that can be done without prejudice to the respondent, but it must not be forgotten that the rules have been formulated for the purpose of ensuring that both sides are treated fairly.  In the present case the appellant’s written submissions do not provide any basis for such an approach.  None of the grounds of appeal have been clarified or, so far as we can determine, directly addressed.

19.  The appellant’s submissions in reply did include a suggestion that further oral argument might be helpful but he has already had ample opportunity to present his case and, in any event, we are unable to see how his interests could be advanced by such a course.

20.  We have been unable to discern any appealable error in the approach taken by Connolly J in relation to the matters before us.  The final order that resulted in the dismissal of the appellant’s claim was amply justified by the appellant’s breach of orders and his failure to sensibly prosecute the action.  This is not a case like State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 in which a litigant had been denied a hearing on the merits due to a procedural error which might have been corrected without prejudice to the other party. In this case, the appellant had ample opportunity to proceed to have his claim heard on its merits but maintained an obdurate refusal to take the necessary steps to have it set down for hearing, even in the face of repeated orders requiring him to do so. Indeed, as we have mentioned, he swore an affidavit in which he made it clear that he had no intention of complying with the orders.

21.  In recent years lawyers, legal academics and members of the judiciary have repeatedly struggled to find means of assisting unrepresented litigants whilst at the same time ensuring that opposing parties were also treated fairly.  In fact, the Australian Institute for Judicial Administration has just released the final report of a national conference convened to discuss the relevant issues in September 2004.  Regrettably, however, some problems remain intractable.  The most obvious is the problem posed by a litigant who might conceivably have a valid claim but who is unable or unwilling to sensibly pursue it and insists on maintaining an irrational approach despite repeated explanations of its folly and attempts to have the case proceed to trial.  Courts cannot permit claims to hang over the head of a party for many years without being determined and can not permit unresolved claims to be used as a platform for grossly defamatory allegations that are unsupported by any evidence and made under cover of absolute privilege.  If, despite due explanation, such a litigant persists in refusing to comply with orders requiring him to file affidavits to prove the truth of his claims or otherwise breaches of directions for the conduct of the matter, the court may be left with no alternative but to dismiss the

proceedings.  That seems to have been the situation with which Connolly J was confronted.

22.  The appeals and the application for leave to appeal must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     10 May 2005

Counsel for the Appellant:  Self represented litigant

Counsel for the Respondent:  Mr Chris Erskine

Solicitor for the Respondent:  Abbott Tout

Date of hearing:  23 February 2005

Date judgment reserved:  20 April 2005

Date of judgment:  10 May 2005