Bryant v ANZ Banking Group

[2002] HCATrans 16

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S256 of 2000

B e t w e e n -

ADRIAN CECIL BRYANT

Applicant

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 11.27 AM

Copyright in the High Court of Australia

MR A.C. BRYANT appeared in person. 

MR R.E. MONTGOMERY:   May it please the Court, I appear for the respondent.  (instructed by Everingham Solomons) 

GAUDRON J:   Yes, Mr Bryant. 

MR BRYANT:   Your Honours, first of all, I wish to tell the Court that I am not a solicitor, nor am I an accountant – far from it.  However, I have done a fair bit of study of the law during the past 12 months and I still cannot understand how judges can arrive at judgments in my case, especially when the respondent omitted to tell the full story and I was not able to put my case and cross-examine the respondent. 

I am basically a very hard-working farmer who was lucky enough to study and practice veterinary science for a number of years.  I worked and managed over 8,000 acres consisting of five properties, basically, by myself.  My neighbours used to say I did the work of three men.  Two properties were near Glen Innes and three were in the upper Clarence Valley, near Bonalbo.  I ran over 1,200 cows and over 2,000 fine wool merino ewes and 300 crossbred ewes.  I produced weaners, vealers, steers, fat cows, stud bulls, fine wool and prime lambs.  I was also involved in running about 1,000 feral goats, tree planting, pasture improvement, fencing, clearing regrowth, weed control and harvesting hardwood timber. 

What I wish to say now is that I am an aggrieved person and all the things I believed that would have been raised in court had I not been denied natural justice.  Numerous affidavits have been presented to the Federal Court, however, at no stage has the applicant been granted an opportunity to cross‑examine these documents which contained many inaccurate and untruthful statements and omission of the facts. 

His Honour Mr Justice Lindgren erred by not allowing my case to go to trial.  I would like to refer you to line 24 on page 63 of the supplementary application book where Malcolm Duncan spells out that, “This applicant asks for his day in Court.”  It was never granted.  The Bank’s affidavits have never been cross-examined in court.  Other evidence the applicant wished to present to the court has never been allowed, owing to not being allowed to have my day in court.  Some of the ANZ Bank’s affidavits were obviously obtained by coercion and presented so as to denigrate the applicant.  Bob Blair’s fax, page 78 of the supplementary application book, can only be interpreted as the Bank trying to coerce him into writing further defamatory and perjured affidavits. 

This denial of the applicant’s right to cross-examine the Bank’s affidavits can only be construed as being biased and as a denial of natural justice.  For instance, in Knaggs’ affidavit, pages 4 to 13 of the supplementary application book, I believe that Greg Knaggs perjured himself.  Most of his statements are untrue and I could tell you why they are if I had more time.  Obviously, he is trying to make out he is an expert on the running of “Blair Hill Station”; the exception being where he says, line 15, page 5 of the supplementary application book, “Elders Limited held a stock mortgage over his livestock”, which was true.  So, if the Bank had no legal entity over the livestock, why did they sell them? 

A permanent agreement signed in 1994 was to allow the stock to stay on the property until my loan came through.  The loan was conditional on me having the stock to stock the properties.  Mr Bartrim, the State rural manager for the ANZ Bank, knew about this loan and the true intention of this agreement.  When the loan was approved, the ANZ Bank reneged on the agreement.  The Bank failed to mention this is any of their affidavits.  Knaggs’ affidavit is rightly and honestly refuted by Mr William McIndoe’s affidavit on pages 3a to 5a of the supplementary application book.  In actual fact, the livestock that I was running on these properties were the property of Bryant No 1 Family Trust.  A copy of the trust deed is on pages 15 to 45 of the supplementary application book. 

That is why I believe that the ANZ Bank had no right to sell the livestock.  They committed cattle duffing.  Nor did Elders have any right to obtain my Rural Lands Protection Board tail tags for the livestock without my signature on the application form.  Their action is a breach against the New South Wales Stock Diseases Act.  Messrs Gibson’s, Bartrim’s, Marsh’s and Braddock’s affidavits all contain many untruths and omissions of facts.  The Bank obviously obtained these defamatory affidavits so as to influence Mr Justice Lindgren’s opinion of my character.  At no time was I granted a chance to defend myself in court.  My applications were struck out on technicalities and for not using the correct jargon, or for bad English grammar, but this should not have precluded me from having my case go to trial.  To not allow it is a denial of the rules of natural justice. 

GAUDRON J:   I do not like to interrupt you, Mr Bryant, but your application is in respect of a later decision, not that decision.  If you want special leave to appeal, it is with respect to that later decision and you have to show us that that was wrong. 

MR BRYANT:   In my application, it specifically said to appeal all the decisions of Justice Lindgren. 

GAUDRON J:   Well, you cannot do that. 

GUMMOW J:   I am afraid you cannot do that. 

GAUDRON J:   You cannot do that. 

MR BRYANT:   Well, that was the initial application. 

GAUDRON J:   Your application to the Full Federal Court was to appeal from Mr Justice Lindgren ‑ ‑ ‑

MR BRYANT:   Yes. 

GAUDRON J:   ‑ ‑ ‑ but to this Court, it is to appeal from the Full Federal Court. 

MR BRYANT:   Well, I am getting on to that, your Honour.  It all follows on.  There is no other way I can explain why I believe that I have been denied natural justice, without going on through what I have written here.  The Bank obviously obtained these defamatory affidavits so as to influence Mr Justice Lindgren’s opinion of my character.  At no time was I granted a chance to defend myself in court.  My application was struck out on technicalities and for not using the correct jargon, or for bad English grammar, but this should not have precluded me from having my case go to trial.  To not allow it is a denial of the rules of natural justice.  It is my firm belief that the ANZ Bank’s employees and agents acted unethically, improperly, immorally and illegally, and the Bank’s legal team hoodwinked the courts. 

In November 1989, I sent out a moneygram.  The ANZ Bank and the NAB Bank answered it.  Mr Gibson from the ANZ Bank at Inverell contacted me and subsequently visited me at “Blair Hill Station”, Glen Innes, in December 1989.  I told him that I required about 2 million to refinance the Commonwealth Bank of Australia, which was charging usury of about 19 per cent per annum, and that I was prepared to mortgage “Blair Hill Station”, 7,200 acres, and “Furracabad Creek”, 150 acres.  These were my Glen Innes holdings.  I also told him that I owned “Manning Run”, which is 476 acres, “Jervis”, 470 acres, and “Belmont”, 250 acres – these were my Bonalbo and Urbenville properties – and that I ran 1,250 cows, 100 bulls and about 2,000 fine wool merino ewes, et cetera. 

He showed me a document – see page 154 of the application book, and note lines 20 to 45, and I said, “I like the look of those specials”.  He said that we would get me the best deal.  He knew that I wanted a loan so as to make a profit and that I had strong emotional ties to the land, going back through my ancestry, and that I was a very hard-working farmer.  A short time later, he contacted me and said that he had spoken to Mel Ellem, a real estate agent in Glen Innes whom he knew, and that Mel told him to take more security.  I then offered the other three properties.  My desire not to mortgage them, as per my original application, was because I might have wanted to sell them later at an opportune time. 

Subsequently, he visited Bonalbo and inspected part of “Manning Run”, but was more interested in talking to Allen Predo, a client of his when he was in Casino.  Mr Gibson also checked Bryant family accounts at Lismore after I mentioned that my father banked with the ANZ.  His comment to me was, “There are some good accounts there”.  Is this a breach of a banker’s duty of secrecy of the Banking Act?  I refer to Chorley and Smart, page 9.  Some time later, Mr Gibson advised me that the ANZ Bank wanted me to take out a “Keyman” insurance policy with them and that it would cost – I thought then – $4,000.  But according to my cheque butt, it actually cost $1,735 and was paid on 30 March 1990.  This I did.  He did not explain precisely why the Bank required this; however, I did not renew it the following year.  Maybe it was going to cost $4,000 that year.  I told Mr Gibson that I thought it was illegal to make me take it out. 

GUMMOW J:   Mr Bryant, you have helpfully supplied us with what you are reading from, and we have been looking at it.  I think what you have to get to, though, is the question of the significance of the bankruptcy. 

MR BRYANT:   Well, the significance of bankruptcy ‑ ‑ ‑

GUMMOW J:   You have put on an application for annulment and that was unsuccessful, I think, and an appeal against that was unsuccessful.  So the bankruptcy status remains.  Then, as the Full Court pointed out, the Bankruptcy Act has what you would say were drastic effects on the continuation of litigation.  That is the heart of it, I think. 

MR BRYANT:   Well, your Honour, I believe that the Bank did not tell the Bankruptcy Court the full story how, when I and my adviser went to the ANZ Bank in 1994 – Grant Bird and I visited Mr Bartrim at North Sydney, and he was the State rural manager for the ANZ.  He said that the Bank would accept approximately $2 million in settlement.  Later on, when Ray Lumley – my barrister at the time – and I visited Col Bartrim that year, Mr Bartrim agreed to a payout figure of $2.3 million.  At that stage, I was confident of getting a loan of over $2.3 million to pay out the Bank. 

Now, the sale of my properties and livestock raised about – and I have revised that.  I do not know exactly, but I think it was over $2.6 million.  Yet, five years after, and approximately one year after offering me $10,000 in settlement at a mediation conference, the Bank then decides to apply to the court for bankruptcy. 

I just believe that when they offered me $10,000 in settlement, they agreed that they owed me something, and, as far as I know, they did not mention any of these three matters to the Bankruptcy Court.  Also, I believe that the mortgage was improperly constructed, in that when I went to sign it on 20 April and not 14 May, which is written on the mortgage – I definitely went there at an earlier date – and I was to sign a document, and they introduced a Mrs Parker to me about one minute beforehand, and she signed her name.  Underneath her name it says “of whom I know personally”.  I never knew her from a bar of soap. 

Now, if they rely heavily on accuracy of witnesses there in their application for bankruptcy by using the November 1993 document, why cannot I say that their document there was improperly constructed and should be void?  Because there is no way that lady knew me from a bar of soap, and yet she perjures herself by signing her name with that written underneath her signature. 

Section 52(1) of the Bankruptcy Act says that “At the hearing of a creditor’s petition, the Court shall require proof” that debts “are still owing”.  As far as I am concerned, the bloke from the ANZ Bank came to Lismore in 1977 and he promised that he would give me a full accounting of my affairs, and this was never, ever done.  As far as I know, the selling of my assets realised a lot more than what Mr Bartrim of the ANZ Bank agreed that he would accept. 

Now, they are telling lies when they go to the court and ask to bankrupt me, and these facts have never been stated.  The Bank has omitted to tell the full truth about the amount of money that he said they would accept, and banks do write off debts, because they create credit, and he knows how they create credit:  with a stroke of a pen in the office.  If the ‑ ‑ ‑

GAUDRON J:   Mr Bryant, towards the end of your submissions, you refer to section 60(4) of the Bankruptcy Act. 

MR BRYANT:   Yes. 

GAUDRON J:   Now, it really is section 60 of the Bankruptcy Act that you have to address.  Section 60(4) ‑ ‑ ‑

MR MONTGOMERY:   With respect, your Honour, section 58. 

GAUDRON J:   I am sorry?  Section ‑ ‑ ‑

MR MONTGOMERY:   Section 58. 

MR BRYANT:   Section 60(4) of the Bankruptcy Act says: 

a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt –

I do not ‑ ‑ ‑

GUMMOW J:   It is more than that.  No, that is not all of it. 

MR BRYANT:   “Notwithstanding anything contained in this section”, and I read that as section 60(1): 

The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: 

(a)  discharge an order made –

et cetera –

(b)  stay any legal process . . . 

(ii)  in consequence of his or her refusal or failure to comply with –

and so forth.  Then, it says, about the trustee: 

Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced . . . 

(a)  any personal injury or wrong done to the bankrupt –

Now, I consider this horrendous wrong done to me by the ANZ Bank ‑ ‑ ‑

GAUDRON J:   Yes, but those words have a particular legal meaning.  They are dealing with bodily injury and things of that nature. 

MR BRYANT:   Well, with respect, it does not state it there, does it?  It does not state anything about bodily injury ‑ ‑ ‑

GAUDRON J:   No, but they do have a particular ‑ ‑ ‑

MR BRYANT:   ‑ ‑ ‑ it says “wrong”, which, in my view, any sort of wrong is a ‑ ‑ ‑

GAUDRON J:   They do have a particular meaning, Mr Bryant, and you have to deal with that. 

MR BRYANT:   ‑ ‑ ‑ is a financial wrong as well as a bodily injury.  I think “wrong” is more concerned with someone causing you some disadvantage or financial loss.  I do not consider myself bankrupt, because the way the bankruptcy was obtained – I do not think it was properly obtained.  Section 52(1) of the Bankruptcy Act says the Court will annul a sequestration order obtained by fraud or one that was unreasonably obtained for an improper purpose, ie, extortion, or the order was made pursuant to a mode of substituted service that was not reasonably likely to bring the petition to the notice of the debtor, or where it was proved ‑ ‑ ‑

GUMMOW J:   Now, Mr Bryant, the Full Court – which is what we are dealing with – also spoke about section 58, did it not, at page 180 of the book?  What do you want to say about section 58? 

MR BRYANT:   Page 180 what?

GUMMOW J:   180 of the application book, the Full Court transcript.  Just take a minute to find it. 

MR MONTGOMERY:   With respect, your Honour, just to avoid the confusion to Mr Bryant, it is at 183.  The fact is that – well, I will come back to that, if I might, but it is at 183 that I raised it to the court. 

GUMMOW J:   I see. 

MR MONTGOMERY:   It was the section we had referred to in our authorities, but I think the presence of an officer of the Trustee at the commencement, Mr Banfield, might have misled ‑ ‑ ‑

MR BRYANT:   No one from the Trustees have spoken to me about any of this, your Honour.  So I know I am ignorant, probably, of most of the law, but what I am appealing to the High Court today is the fact that I believe that everything that the ANZ Bank has obtained from the court is by hoodwinking the court, not providing all the evidence that should have been provided, and it was wrong for the decisions to be handed down against me.  As far as I can see, there is nothing in the Bankruptcy Act to say that I do not have a locus standi to present my case to the court. 

GUMMOW J:   Well, you sought to annul the petition.  The Act allows you to try and do that. 

MR BRYANT:   On the grounds that ‑ ‑ ‑

GUMMOW J:   And that failed. 

MR BRYANT:   Sorry? 

GUMMOW J:   That failed.  You were unsuccessful in that, so the order is still there. 

MR BRYANT:   Because I was not allowed to speak, your Honour.  I was not allowed to present my case.  I do not believe that – if the Act meant that you did not have a locus standi and you were not able to present your case, it would have been in the Act, and I do not think it is valid that any Australian should not be allowed to present his case to the court when he has a genuine grievance, that all their applications were obtained by leaving out key evidence and hoodwinking the court.  I believe some of the things that the Bank said in their affidavits are perjurious and their actions are fraudulent and I just ‑ ‑ ‑

GAUDRON J:   But you did make an application to annul your bankruptcy.  Do you remember that? 

MR BRYANT:   Yes.  My barrister at the time did, apparently. 

GAUDRON J:   Yes. 

MR BRYANT:   Yes.  I was not at the court.

GAUDRON J:   No.

MR BRYANT:   But what the application to the court ‑ ‑ ‑

GUMMOW J:   Now, the red light is on, Mr Bryant.  Have you seen that? 

MR BRYANT:   Yes.  What does that mean?  Does it mean “finished”? 

GUMMOW J:   It means, for the other counsel who has been here this morning, that that is the end of it. 

MR BRYANT:   All right, okay.

GAUDRON J:   Yes, thank you, Mr Bryant.  We need not trouble you, Mr Montgomery. 

Given the applicant’s bankruptcy and given also the provisions of sections 58 and 60 of the Bankruptcy Act, the proposed appeal enjoys no prospect of success.  Accordingly, special leave is refused.

You do not seek costs?

MR MONTGOMERY:   We do not seek costs.

GAUDRON J:   Thank you.

AT 11.53 AM THE MATTER WAS CONCLUDED