Cheetham v Baker

[2001] HCATrans 284

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2000

B e t w e e n -

DAVID WILLIAM CHEETHAM

Applicant

and

CAROL ANNE BAKER

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 17 AUGUST 2001 AT 10.56 AM

Copyright in the High Court of Australia

MR D.W. CHEETHAM appeared in person.

McHUGH J:   Mr Cheetham, before you commence, I have a certificate from the Deputy Registrar stating that she has been informed by Carol Baker, the respondent in this matter, that the respondent will submit to any order of the Court save as to costs.  Yes, would you proceed, Mr Cheetham, with your submissions.

MR CHEETHAM:   I have already read that letter, your Honour.  The appeal portion is in relation to a security of costs.  In the actual ‑ ‑ ‑

McHUGH J:   To a security of costs?  I thought it was in respect of ‑ ‑ ‑

MR CHEETHAM:   Sorry, a waiver of fee and an extension of time to apply for a security of costs in which the court did not allow the waiver, stating there was no likelihood - perhaps an unlikely chance of success of dismissing the security of costs.  The documentation by 100 per cent suggests the otherwise and my application to the Court also suggests otherwise.  I assume the Court would have read those documents?

McHUGH J:   Yes, we have read the documents.

MR CHEETHAM:   They appear to be self-explanatory.  I will just go through because I have highlighted certain areas.  Security of costs does not relate to the prospects of success of the case; it relates under authorities only in regard to the right to security.  I will go to my application books at page 64.  Do you follow it through with me, or ‑ ‑ ‑

McHUGH J:   Yes.

MR CHEETHAM:   Page 64, the grounds.  The Full Court:

(i) dispensed with all minor waiver, extension, etc, issues, due to the overwhelming evidence in support (law and authorities) and (ii) by their right of power, but referred to grounds –

They agreed to the waiver and extension but referred to the grounds of security.  What was put to Judge Lowrie was 28 reasons for dismissal of grounds of awarding security of costs to a defendant who is a triple perjurer, who has no defence, who has lost two applications to have the case dismissed, who - I defeated a barrister in the first instance and my solicitor, Mr Randall, defeated Ms Baker in the second instance, which is the first part of the orders of Berry appeal to Lowrie only in regard to security of costs.  At page 65 ‑ ‑ ‑

McHUGH J:   Yes, but, Mr Cheetham, you are seeking special leave to appeal against a discretionary judgment of the Full Court of South Australia.  You had to get leave to appeal.

MR CHEETHAM:   That is right.

McHUGH J:   Now, why should this Court entertain such a case?  We do not sit here as a general court of appeal.  Ordinarily, litigants’ cases finish with the Court of Appeal or Full Court of their State.  It is only if there is something very special about the case that we would grant special leave to appeal.

MR CHEETHAM:   Well, in regard to the Full Court, the Full Court never asked for documents, had a call-up of documents in regard to the proper calling up of documents from the lower court.  The problem occurred in the registry of the Supreme Court, in which case they would not accept my notice of appeal until I was given a waiver of fee or they got the money for a filing fee.  I have since been before Martin J who has now corrected those situations and he has allowed a waiver of fees in other cases and ordered that the notice of appeal be filed and that the matter be heard.

McHUGH J:   This judge in the exercise of his discretion would not ‑ ‑ ‑

MR CHEETHAM:   Which judge are you talking about?

McHUGH J:   I am talking about Judge Lowrie.  He is the appropriate judge, is he not?

MR CHEETHAM:   He was the first judge who refused to remove security of costs when I had 28 reasons.  The authorities I referred to to him were Koetsier, “Security of costs should not be allowed for a defendant against plaintiff” – myself – “on bona fide prospects of success”.  The case is near certain.  Octocane in referral to the specific reasons, the problems were caused by the defendant, the impecuniosity, the losses in Telstra.  Anyway, I will just continue reading through because you will waste my time having to chat to me if I do not go through in the procedure that I have set out and get everything through.

In my applicant’s summary of argument, it is basically an extension upon my grounds resubmitted here for an issue of application for leave or special leave to appeal.  The criteria that all statute and common law is incorrect in regard to the Full Court in not allowing the waiver and the extension of time, the security of costs removal would be automatic from the flow-on of those orders.  They have accepted that the waiver and extension would be granted, but they have said the prospects of success - so that takes the case to the security of costs.  Security of costs, all authorities state that unless my case has no chance, and it has been dismissed twice by the applications of the defendant, the security should not have been put on.  If she created that, it should not have been put on.  I am up to page 73 of my applicant’s summary of argument.

The defendant is liable for trespass in Barker v The Queen:

A permitted entrant becomes a trespasser only from the time he/she acts inconsistently with the terms of the permission.

Duty of care, she was negligent 100 per cent.  I suffered massive economic loss.  In Bryan v Maloney:

The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity –

she was on my property, I got out of bed and sighted her –

between the parties with respect to both the relevant class of act or omission and the relevant kind of damage.

Reasonable care, the reasonable person, page 74, a recognisable illness, causation, I have three years of doctors’ certificates.  I have proximity and foreseeability.  I have Jaensch v Coffey.  Invasion of privacy is that of “being left alone”.  Rights of a plaintiff to a trial addressed previously successfully initially by myself against Mrs Baker’s barrister.  I have more specific evidence, Jaensch v Coffey.  Duty – liability, causing damage by breach of duty should be liable for loss.  The common law rules that are not recoverable for nervous shock have been succeeded by Wrongs Act.  Jaensch v Coffey:

The duty is owed not to the world, but to one’s neighbour . . . directly affected by my act that I ought reasonably to have ‑ ‑ ‑

McHUGH J:   But, Mr Cheetham, you are not addressing the issue that ‑ ‑ ‑

MR CHEETHAM:   Well, I will get to the security of costs which is the issue.

McHUGH J:   No, the security of costs is not the issue.

MR CHEETHAM:   That is what I have appealed in part.

McHUGH J:   Well, you may have, but the question is, Mr Cheetham, just ‑ ‑ ‑

MR CHEETHAM:   Right, well, the waiver of fee, I will get to that too.

McHUGH J:   Would you just listen, please, Mr Cheetham.  The issue is whether the Full Court, having a discretion to grant you leave to appeal - they did not have to - they said they would not.

MR CHEETHAM:   No, they were unjust in making that decision, there is no question of that.

McHUGH J:   Well ‑ ‑ ‑

MR CHEETHAM:   Are you telling me a triple perjurer cannot go to trial because a Full Court does not want to give me a waiver of fee or an extension of time to remove security of costs that she created?

McHUGH J:   Mr Cheetham, I am not telling you anything, I am telling you that your argument is not addressing the issue.

MR CHEETHAM:   Okay, sorry, I will pass the actual trial material.  The reason they should have given me the orders is the application that dictates the conscience of the principles of natural justice to grant me a waiver and the laws and authorities all support the granting of a waiver for the rights of justice, that is page 76.  Security of costs, Colbran’s “Security of Costs”:

is what prospects of success the plaintiff has in the proceedings.  If the plaintiff has a strong and apparently meritorious claim the court is reluctant to make an order which may have the effect of shutting the plaintiff out.

The security of costs has shut me out, a 100 per cent liable defendant, a triple perjurer in the court, and if this High Court can tell me a triple perjurer does not stand trial because of a waiver of fee application which she created or an extension of time which the Full Court unjustly made orders for, they need to address themselves.

McHUGH J:   Now, Mr Cheetham, the issue is whether there is something so special about your case that it should be one of the handful of cases decided each year in this country, tens of thousands of them, where we should grant special leave.

MR CHEETHAM:   Well, if I have every section of law and every authority in support of the defendant being liable 100 per cent to the laws of negligence - I have doctors’ certificates for three years, I have psychologists’ reports, and you are telling me that the Full Court can stop me on a waiver of fee and that I have no rights to justice in the Commonwealth of Australia.

McHUGH J:   What I am telling you is that you need to show a reason why this Court should grant special leave to appeal.  This Court does not sit as a general court of appeal.

MR CHEETHAM:   Right.  Well, if you have read that document, are you trying to tell me you cannot assess from that document that the rights of justice would allow this security to be removed or the security carry on to a hearing to be removed and special leave be accepted?  The Full Court did not call up one document.  If I read through, you will get the whole context.  You are wasting my 20 minutes and I would rather get through every document, then have your say to me what you think the prospects are, and the prospects are 100 per cent in my favour.  I filed documents yesterday, about 250 or 300 documents.  I would have assumed the High Court would have at least addressed it for three hours before they were willing to make a decision.  Ms Rosemary Musolino tells me you possibly have not directed it at all, so if I can go through the authorities. 

What you are trying to tell me is that the Full Court were right in not awarding me a waiver of fee and extension of time of two days, a waiver of fee because of my impecuniosity caused by the defendant to appeal a portion section where my lawyer was successful for the second time to the plaintiff’s attempt to dismiss the application that it should not be heard to a trial.  I have my documents that were filed yesterday:  the first section is “Special Leave Criteria:   Laws and Authorities; Procedure Errors:  Intermediate Courts; My Preferred Index; Criteria:  Extension Time (2 Days Required); and Criteria:  Laws and Waiver of Fees” which the Full Court should have addressed or should have at least given me a hearing to address.  The Judiciary Act document which states criteria for granting special leave:

whether the proceedings in which the judgment to which the application relates was pronounced involve a question law -

All laws and all authorities support a waiver of fee and an extension of time.  Those authorities follow on.

The next document, Morris v The Queen, jurisdiction to grant special leave “to any matters that it considers relevant”.  The criteria for leave, the next section:

There must be sufficient doubt about the decision and substantial injustice if the decision stands.

The Full Court are refusing me a waiver of fee and an extension of time when I have lost income for three years because of the defendant.  I would lose in relation to the appeal being dismissed and not going to trial against a triple perjurer, I would lose all my current assets, my boat and so forth as the total injustice.

BHP Petroleum, which is the next document, held:

An application for leave from interlocutory orders will be granted by the Full Court where . . . with sufficient doubt to warrant its being reconsidered on appeal; and (b) substantial injustice will be caused to the applicant if the order of the primary judge is allowed to stand.

Massive injustice.

The next document is Southern Cross All Risk Insurance:

Leave should be granted - effective finality otherwise

This Court cannot say that a triple defendant who does not want to even answer a summary of argument document which is massively in support of myself in this Court because it includes that she is a triple perjurer and every situation where her barrister put forward was defeated by myself and my solicitor.  That document, at page 210, says:

It goes without saying that the unsuccessful party can, in an appropriate case, apply for and obtain special leave -

It is appropriate in my case, the fact that we actually won the hearing and got stifled by security of costs.

The next question is Brealey v Drogemuller:

Leave to appeal was granted by this Court . . . Questions of interpretation -

The next document is Australian Dairy Corporation, application for special leave.  At the bottom of the page:

unless an applicant shows that the decision at first instance was wrong or attended with sufficient doubt to warrant its being considered on appeal, and that a substantial injustice would be done by allowing the decision to stand.

You want me to lose three years income against a triple perjurer when the defendant is committing perjury.  She stifled all the action by security of costs and she should not have got them if she could not get a dismissal.

The next document is the “Documents from lower court”, rule 97.06, which the Full Court never called up the documents from the lower court, which has now been corrected.  It says:

(b) A copy of any transcript of proceedings made by direction of that Court or tribunal –

The next document is my index to Rosemary Musolino which was reduced by Rosemary, but I wish to address.  It says I have at 24 doctors’ certificates, three years, psychologist’s report in support:

26.  Doctor’s letters re subpoena referral.

27.  Chief executive officer –

I have letters from my mother-in-law, Baker:

30.  Police letters to subpoena.

31.  Media letters – subpoena referred reply.

32.  Plaintiff applicants – letter to media . . . 

34.  Subpoena of documents, re Ms Baker’s financial accounts –

and the transcript to allow this to go to leave to appeal.

The criteria for an extension of time, the major authority is Biala Pty Ltd v Mallina Holdings, which I have got the document in front of you, that says it confers a broad power to relieve against injustice.  You are the High Court of Australia.  Rule 6.02:

(1)  The Court may extend or abridge . . . 

(2)  Time to be calculated as clear days.

(1)  The Court may extend or abridge the period within which a person is required or authorized by Statute, by Rules or by an order of the Court, to do or abstain from doing any act.

The High Court would not allow me two days extension of time for a triple perjurer.  Rule 3.04:

General powers of the Court . . . 

(d)  extend or abridge time any prescribed periods of time within or by which any step in a proceeding may be taken whether or not such period of time has expired –

The laws relating to a waiver of fee, King v State of South Australia:

inherent power to waive fees . . . inability to pay –

caused by the defendant –

and arguable case –

I have got the most arguable case in the history of any court in Australia – three years doctors’ certificates.  I have a triple perjurer who you think may not need to stand trial.

McHUGH J:   The Master said that he thought that you did not have a strong case against the defendant and there was a real possibility in his opinion ‑ ‑ ‑

MR CHEETHAM:   If you have read that application and notice of appeal and you think that, you need to readdress yourself.

McHUGH J:   You will not speak to any member of this Court in that fashion.

MR CHEETHAM:   Sorry.  Well, I will ask the other Judges how they felt about reading that document.  Are you really trying to stand here and tell me that you read that entire document and think I have no prospects of success?

McHUGH J:   I put to you what the magistrate said and Judge Lowrie who heard ‑ ‑ ‑

MR CHEETHAM:   That is right, so you want to support a brother whether he is right or wrong.  You want a brotherhood situation.  Judge Lowrie had 28 grounds.  I had all authorities.  Anyway, I will continue.  These are security of costs, laws and authorities in support of removal of security of costs.  Discretionary factors, security of costs, rule 100.01.  Wrong.  O’Brien Enterprises, security of costs:

(3)  No order for security for the respondent’s costs would be granted because:

(a)  the questions of law raised on the appeal were bona fide and of substance . . . 

(d)  an order for security would present a substantial obstacle to the appellant in proceeding with the appeal.

Koetsier, security of costs:

Appeal from refusal of Master to order security for costs against a plaintiff suing for damages for defamation – case said to be demonstrably weak –

by the appellant who was against the plaintiff and correctly refused security of costs.  Octocane:

whether the Master adequately took into account the appellant’s financial position had been brought about by the actions of the second respondent.

She has twice failed to dismissed the case:

Appeal allowed and order for security set aside.

Supreme Court, 21st Century Promotions:

inappropriate to make findings on issue of serious question to be tried at this stage –

All my application for appeal is massively in support of Baker standing trial for triple perjury, for every section of law, authority in support.  Remm Construction:

applicant for security should be required to make full disclosure –

Ms Baker got security of costs by one line against my barrister, one line which I have got in this document I filed last night, if you have read it, and she is supposed to set out a proper reason.  Appleglen:

The general rule appears to be that on an application for security of costs it is not the right course to adopt to investigate the likelihood or otherwise of success in the action.

Porzelack KG v Porzelack (UK) –

The next document is page 30:

As the application to dismiss the claim has not succeeded –

that is Baker’s application to dismiss the claim for negligence –

the application for security of costs has.

So it should have been removed.  That is the second time Baker failed to dismiss it.  Here is Baker’s one line:

I ask that security of costs, a sum of $10,000 be paid by the plaintiff -

I have Mr Randle’s letter, my solicitor, who did not get security of costs, who did not win the application, about her application for security of costs.  She does not produce any material in support of that application.

In regard to Rosenfield Nominees:

(a)  although the plaintiffs’ case did not appear to be strong –

my case is the strongest case I have ever seen - would imagine went to the court or should go to trial –

(b)  it did not appear that the present financial position of the plaintiffs was due to the activities of the defendants -

My losses of income with three years doctors’ certificates and a psychologist’s report say that they were caused by Baker, the defendant. Rosenfield at (d) says:

it had not been shown that an order for security would stultify the proceedings.

In this case it has definitely stultified the proceedings.

The next document is “Medical Evidence”, which is pretty straightforward.  I have a psychologist’s page that nervous shock, post‑traumatic stress disorder, is appropriate.  I have two years doctors’ certificates if you have read the documents I filed last night.  I have “Recognisable Psychiatric Damage” from:

Tort liability for psychiatric damage:  the law of “Nervous Shock”/by Nicholas J. Mullany and Peter R. Handford; foreword by Sir Thomas Bingham

The strength of the case is the defendant has not been able to reply in one hearing in regard to a defence.

McHUGH J:   Mr Cheetham, your time has expired.

MR CHEETHAM:   I would also ask for costs to my solicitor for the removal of security and costs for myself as expenses in regard to the last document I filed last night and all the filing documents D and E relate to all the negligence laws which have been addressed before where the defendant could not get the case dismissed.

McHUGH J:   Your time has expired.  Would you take your seat, please.

MR CHEETHAM:   Thank you, your Honour.

McHUGH J:   Yes.  The Court has considered the written and oral argument and the documents filed by Mr Cheetham.  The Court is of the opinion that the case raises no question of general principle warranting the grant of special leave to appeal.  Nor would the case have any reasonable prospects of success if leave was granted.  The application is dismissed.

MR CHEETHAM:   You are a disgrace to the High Court of Australia.

McHUGH J:   You will withdraw that.

MR CHEETHAM:    I will not.  She is a triple perjurer.

McHUGH J:   You will withdraw that statement that you just made or you will ‑ ‑ ‑

MR CHEETHAM:    Baker is a triple perjurer on all documentation.  You are allowing a case not to go to trial for a triple perjurer.

McHUGH J:   You will withdraw that statement that you made about the High Court of Australia.

MR CHEETHAM:    I am making it about you if you made that judgment.

McHUGH J:   Yes.  Well, you will withdraw ‑ ‑ ‑

MR CHEETHAM:    I will not withdraw that application.  Did you read all these documents last night and the application for special leave?  You could not have not granted special leave.

McHUGH J:   Well, we have refused special leave.  Would you resume your seat.  Adjourn the Court.

AT 11.19 AM THE MATTER WAS CONCLUDED