Beames v State of Queensland B40/2002

[2003] HCATrans 826

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2002

B e t w e e n -

DOUGLAS MACLEOD BEAMES

Applicant

and

THE STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 11.10 AM

Copyright in the High Court of Australia

MR D.M. BEAMES appeared in person. 

MR R.J. DOUGLAS, QC:   Your Honour, I appear with MR D.J. CAMPBELL for the respondent.  (instructed by Crown Solicitor for Queensland) 

McHUGH J:   Yes, Mr Beames. 

MR BEAMES:   Your Honours, as a bankrupt, I have no capacity to engage legal representation.  Even though I have access to the financial resources to discharge my bankruptcy, to do so is to concede that the State of Queensland has the power to arbitrarily fix ambulatory title boundaries to freehold lands. 

KIRBY J:   Yes, that may be so, but the fact is that, as a bankrupt, you have certain civil disabilities in the courts and they are disabilities which have been upheld by law, which we have to give effect to.  You will have seen in the respondent’s written submissions that they take objection to the competency of the appeal on the basis that the application for special leave to appeal would need the concurrence of your trustee or of the Federal Court to proceed in this Court.  You do not have either of those things.  So how do you overcome the threshold objection to the competency of your application?  Unless you do, we cannot get into the merits.  We have to obey the law. 

MR BEAMES:   I accept that, your Honour.  It may be that I cannot do that, however, if I can go a little further. 

KIRBY J:   Not too far further. 

MR BEAMES:   Such arbitrary fixations are contrary to law. 

McHUGH J:   That raises the second problem, does it not, Mr Beames, that you do not really challenge the validity of what the Court of Appeal did?  You go outside it.  Your grounds of complaint really do not concern the reasons of the Court of Appeal, but anterior matters.  Is that not so? 

MR BEAMES:   With respect, your Honour, it is not so. 

McHUGH J:   It is not so? 

MR BEAMES:   No, that is not what I – could you please put that down to inexperience on my part, your Honour, rather than an intention to express that difficulty or to address that difficulty.  I believe I have a duty ‑ ‑ ‑

McHUGH J:   What I was taking into account was your statement in your reply at page 66, paragraph 3, where you said “The decision of the Court of Appeal is not impugned”. 

MR BEAMES:   The decision of the Court of Appeal is not impugned, your Honour. 

KIRBY J:   Yes, but that is the very matter that you are seeking special leave to appeal against. 

MR BEAMES:   Yes.  My point there is that the State has not addressed the decision of the Court of Appeal.  It has not said that the Court of Appeal decision ‑ ‑ ‑

KIRBY J:   You are stating that the State has not impugned ‑ ‑ ‑

MR BEAMES:   That is right. 

KIRBY J:   Well, why would they impugn it, because they are the beneficiaries of it? 

MR BEAMES:   That is true, your Honour.  Again, may I just continue and get ‑ ‑ ‑

McHUGH J:   Yes, just settle down.  You seem very nervous, Mr Beames, though that is understandable. 

KIRBY J:   Have a glass of water. 

McHUGH J:   Just have a glass of water, settle down. 

MR BEAMES:   If I can just read this, I am sure I can get through it in 10 minutes ‑ ‑ ‑

McHUGH J:   Yes, right. 

MR BEAMES:   ‑ ‑ ‑ and then you can tell me the bad news, your Honour. 

KIRBY J:   Well, we will listen and you may have an answer to the problem that has been presented. 

MR BEAMES:   I may have presented – I have reduced my oral argument to writing.

McHUGH J:   Anyway, you move on, because your time is going. 

MR BEAMES:   Okay.  As I said earlier, such arbitrary boundary fixations are contrary to law.  The State of Queensland becomes the owner of land in place of Her Majesty Queen Elizabeth II.  Freehold land, or part thereof, is transferred to the State of Queensland without registration of either a plan of subdivision or an instrument of conveyance.  Such powers derive from the Land Title Act 1994 generally and section 9 and 10 of the Land Act 1994. Prior to these Acts, the State had to rely on an abuse of section 9 of the Land Act 1962. That is reflected in section 358 of the Land Act 1994. I believe I have a duty to appeal in these circumstances.

The practice of arbitrary boundary fixation by the State is widespread and the consequences of my exposure, or my attempted exposure, of this unlawful practice have governed the State’s actions, which include the corruption of the office of the Registrar of Titles.  I do not believe that the law of bankruptcy is intended to override or impair my duty as an officer of this Court to vigorously pursue this campaign of exposure. 

I fully accept that the vestment of my choses in action in my trustee in bankruptcy ensures that I will have no financial gain should my efforts ultimately find success.  Therefore I ask this Court to do no more than review the State’s land administrative practices that have been used to counter my campaign. 

Very briefly, the background.  In 1989, I internationally patented my building wall construction method that had the capacity to dramatically reduce the cost of construction, whilst rapidly providing or restoring living security in almost any environment.  The method was globally embraced.  However, a fundamental condition of entry into those markets was my demonstration of compliance with Australian Building Standards. 

I commenced construction of a residential building on my lands at 59 ‑ which is lot 28 – and 61 – which is lot 29 – Gillan Street, Norman Park, Brisbane, in July 1995, with the object of accommodating overseas buyers of this technology and at the same time demonstrating that compliance with Australian Building Standards.  Construction was halted when the State claimed ownership of a substantial part of my lands through arbitrary boundary fixation.  This claim placed me in irretrievable default of my mortgages that ultimately led to my bankruptcy last year. 

If I am granted leave to appeal here, I will demonstrate that the electronic titling system used in this State is a system of title by the Registrar’s certification, as opposed to a system of title by registration.  Where the State is involved in a dispute over the title to freehold land, the Registrar certifies title on the side of the State.  In such dispute, the lower court has allowed counsel for the State to also represent the Registrar of Titles. 

In order to maintain the State’s claim in these proceedings, the Registrar has, without the consent of the relevant licensed surveyor, altered plans of survey subsequent to registration of the plans; certified the title boundaries to lot 28 and lot 29 on registered plan 12574 by reference to an unregistered plan, Crown plan 896475; represented that the 1950 survey, recorded in registered plan 12574, was dictated by the 1878 Directions for the Guidance of Surveyors, whilst knowing that those directions were rescinded in 1898 and that the surveyor, C.E. James, was regulated by the Real Property Acts 1910; subsequent to his registration of resurvey plan RP 905522, which is a resurvey of lot 29, published an identification survey, IS 139284, recording the arbitrary boundary fixation. 

As the Norman Creek boundary is in direct contradiction to the survey data recorded in that resurvey plan 905522, registered a transfer of lot 28 – that is, with the mortgagee exercising the power of sale ‑ contrary to section 60(2) of the Land Title Act, by presenting unregistered plan CP 896475 as registered plan 12574 and not permitting registration of resurvey plan 110352 on the principal ground that this resurvey negates the arbitrary boundary fixation for lot 28. 

The State has delayed the prosecution of this case‑managed proceeding for no purpose other than to allow the mortgagee sufficient time to bankrupt me. The original claim in 1999 was based exclusively on section 10 of the Land Act 1994 and was commenced because of my refusals on 14 July 1999 to accept payment of a sum of money in excess of $600,000 tendered by certain public servants and to abandon my attacks and contemplated attacks on the practice of arbitrary boundary fixation throughout this State.

McHUGH J:   Mr Beames, I know you feel very strongly about these things, but your argument is not really addressing the question that as an undischarged bankrupt you just have no standing to bring this application.  That is the critical issue for us at the moment. 

MR BEAMES:   Your Honour, if it please, can I continue?  I have that amount of time and I believe I may just touch sufficiently on that point. 

KIRBY J:   Well, you have not so far and ‑ ‑ ‑

MR BEAMES:   I appreciate that, your Honour. 

KIRBY J:   ‑ ‑ ‑ it is a gateway for you.  You see, you have two gateways.  You have to get into this Court, but to get into this Court you have to have the standing to get into the Court, and unless you push the gateway in we really cannot get into these merits.  That is the problem for us.  We have to obey the law.  We have to apply the law. 

MR BEAMES:   I understand that and I certainly appreciate your advices.  But perhaps if I can at least say this I will have achieved at least something, even if it is fruitless in the ultimate objective. 

KIRBY J:   But, in a sense, it is not really fair, because the State does not have to answer it unless you get in the door, and then there is left on the record of the Court assertions which are not answered and which we do not deal with and we do not deal with it for the reason that has been explained to you.  I am very sorry that you face this predicament, but this is the law, and we have to explain that to you so that you will address it. 

MR BEAMES:   Yes, your Honour.  May I continue? 

McHUGH J:   Only for a very short period of time.  I do not want to ‑ ‑ ‑

MR BEAMES:   I only have two more pages to read, your Honour.  The court allowed the State to substantially amend its pleading on no less – and I am addressing the question of the purpose of the litigation, your Honour.  It was not to argue any relevant point.  It was simply to delay – keep me tied up in court ‑ ‑ ‑

KIRBY J:   I know you say that, but, at least, in theory, you could ask the trustee to consent to your bringing this proceeding ‑ ‑ ‑

MR BEAMES:   I have done that, your Honour. 

KIRBY J:   ‑ ‑ ‑ and/or you could go to the Federal Court of Australia and say ‑ ‑ ‑

MR BEAMES:   And I have done that also, your Honour. 

KIRBY J:   Well, if you have done both of those and if the trustee will not consent and if the Federal Court will not give you permission, then the law says you cannot be heard on this application.  There are reasons for that, because you seem a rational and intelligent man, but there are people who will then bring proceedings to exhaust the amount of funds that is left in their estate, to the great disadvantage of their creditors.  That does happen.  That is why the law puts this barrier. 

MR BEAMES: I appreciate that also, your Honour. Your Honour, with the greatest respect, I have proceedings before the Federal Court. Unfortunately, they have not been dealt with in a timely way and I am here without the benefit of the determination of the Federal Court on the point. To reiterate, the court allowed the State to substantially amend its pleading on no less than nine separate occasions, before the State finally abandoned the basis of its claim and substituted a new claim based on section 9 of the Land Act.  The State then had to rely on the Registrar’s actions as described in the preceding paragraphs, by deceitfully representing registered plan 12574 ‑ ‑ ‑

McHUGH J:   Well, now, I have to stop you, Mr Beames.  You have made a serious defamation of another person and it is as plain as it can be that you have no standing in this Court.  The proceedings are being used to make defamatory remarks about people.  Transcripts of this Court go on the Internet; they are available for everybody.  Now, you must direct your argument to this question of your standing to bring this application and if you cannot say anything further, then you will have to sit down. 

MR BEAMES:   Your Honour, there are other cases which I hope to bring before this case which are not my personal cases.  These are the cases of Elroa Nominees and Cayman Quays.  The Court of Appeal dismissed the appeals in each of these cases and I have instructions as legal officer and employee of each of those companies to seek appeal out of time to the High Court. 

KIRBY J:   Well, it may be that if you can then get the approval of the Federal Court to bring those proceedings, or if you do not need it in those cases, if they are still solvent companies, then there is no barrier of the kind that you face, in which event you may be able to get to some of these issues of merits.  But in your own case, you cannot. 

MR BEAMES:   Yes, your Honour, and that is my intention.  Ultimately, these things are going to ‑ ‑ ‑

KIRBY J:   Well, let it be so.  Let that be the occasion, but this is not the occasion, unless you can open the door.  There is a door, it is shut, and the key is provided by the Federal Court of Australia, not by this Court. 

MR BEAMES:   Yes, your Honour.  I am bringing this rapidly to a conclusion and I am aware of what your Honours are going to conclude.  The presentation of those cases to the Court of Appeal was impaired, firstly, because of my bankruptcy and, secondly, the cancellation of my practising certificate by the Law Society of Queensland on the eve of the hearing of the appeals.  That prevented me from engaging counsel to present argument on behalf of the appellant in each case.  The Court of Appeal granted me special leave to appear on behalf of the appellant companies, notwithstanding the cancellation of my practising certificate. 

In consideration of my withdrawal of my appeal against the cancellation of my practising certificate, the Law Society of Queensland agreed to the reissue of my practising certificate.  However, all I have received is a letter from the Registrar of the High Court advising my reinstatement as a solicitor of the High Court and a letter from the Law Society offering to renew my practising certificate for the ensuing 12 months.  I believe my character has been seriously and irreparably impeached.  In conclusion, probably the most blatant of the many examples of that, and there are clear examples ‑ ‑ ‑

McHUGH J:   Well, you want to be very careful what you are doing, because your conduct in proceedings like this may itself give rise to disciplinary action against you.  You are an officer of the Court.  You have to be careful from your own point of view, Mr Beames. 

KIRBY J:   Keep your eye on the big picture here ‑ ‑ ‑

MR BEAMES:   I am trying to do that, your Honour. 

KIRBY J:   ‑ ‑ ‑ because you are a person who has legal training and you obviously have some ability and you should not forget the big picture of your future life.  Anyway, we have said what we have to say.  Have you finished what you have to say or want to say? 

MR BEAMES:   I have taken heed of your advices, your Honour.  I am pondering the question of whether I should mention what has happened since ‑ ‑ ‑

McHUGH J:   Well, as I have pointed out to you, at the moment it seems an undeniable case that you have no standing and, therefore, it means that the proceedings are being used, if you were going to make attacks on people, to make those attacks, when really you should be out the door – or you have not even got in the door.  So that is the problem.  The way cases are conducted can be grounds for striking people off, as occurred in Clyne’s Case 104 CLR 186. So you want to be careful, from your own point of view.

MR BEAMES:   I do not wish to be struck off for the second time, your Honour.  Not that I was struck off the first time.

McHUGH J:   No. 

MR BEAMES:   It was just a cancellation of my practising certificate, which was effectively a striking off, if you like. 

McHUGH J:   Well, it is not, really.  It is not.  But you have to be careful and, really, Mr Beames, I think we have been very patient with you. 

MR BEAMES:   You have, and I appreciate that, your Honour, but might I say in conclusion that when one is faced with circumstances such as these then it is very, very difficult to get the ear of the highest Court in the land. 

McHUGH J:   Yes, thank you very much, Mr Beames.  The Court need not hear you, Mr Douglas.

The applicant is an undischarged bankrupt who seeks special leave to appeal to this Court from a unanimous judgment of the Court of Appeal of Queensland.  In making his application, the applicant has not obtained the approval of the trustee or of the court administering the federal bankruptcy legislation so as to permit him to bring this application.  The application itself, of course, cannot constitute a challenge to the sequestration order made by the Federal Court and, accordingly, his status remains that of an undischarged bankrupt, as Mr Beames readily concedes.

The purpose of the limitation on applications by undischarged bankrupts is clear.  It was explained by Lord Justice Hoffmann in Heath v Tang [1993] 1 WLR 1421 at 1427, where his Lordship said:

The bankruptcy court acts as a screen which both prevents the bankrupt’s substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims.

See also on that a decision of this Court in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at page 139.

Accordingly, the application must be dismissed as incompetent.  It is proper to order that the applicant pay the respondent’s costs of the application.

AT 11.32 AM THE MATTER WAS CONCLUDED