Cheetham v Heuzenroeder

[2003] HCATrans 315

[2003] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A6 of 2002

B e t w e e n -

DAVID WILLIAM CHEETHAM

Applicant

and

PETER HEUZENROEDER

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 15 AUGUST 2003, AT 10.22 AM

Copyright in the High Court of Australia

MR D.W. CHEETHAM appeared in person. 

KIRBY J:   Yes, Mr Cheetham. 

MR CHEETHAM:   May it please the Court, I appear for myself in this matter, for the third time in the High Court.  I am becoming familiar and try and reduce the documents to 20 minutes.

KIRBY J:   Yes, it is quite difficult, but just do your best.

MR CHEETHAM:   Well it is, when I can take five hours to discuss the matter.  I would assume that the Court has read the summary of argument and the application books ‑ ‑ ‑

KIRBY J:   Yes, we have done that.

MR CHEETHAM:    ‑ ‑ ‑ and the referral to that, in which I set out the numerous sections of evidence and laws and authorities and so forth.  So I do not suppose there is too much point in going through that individually, so what I hope to do is, I have done a brief address to the Court, and I will also get to my conclusion fairly quickly, so that I actually get the conclusion heard before the 20 minute expiry, if that is okay.  Then, if I get time, I can go back briefly through my authorities and establish the main points.

KIRBY J:   Yes, well just use your time as effectively as you can.  I have a certificate from the Deputy Registrar informing me that the Australian Government Solicitor, the solicitors for the respondent in this matter, that the respondent will submit to any order of the Court, save as to costs.  So that certificate will be placed with the papers; that informs the Court of those facts.  Very well.

MR CHEETHAM:    I would just like to say about that, your Honour, it is the third time I have been in the High Court and each time the respondent has not bothered to attend.  I see that as a complete admission of guilt, because if I had not been negligent I would have came in straight away and put a case forward that I expected.  Can I start now?

KIRBY J:   Yes, you proceed.

MR CHEETHAM:   Thank you.  I have already referred to my summary of argument and I assume you have read those.  I have evidence of a letter of conclusive evidence that the claim is against a registrar of the Federal Court, who is a servant of the federal Crown.  I assume that he has been represented by Australian Government Solicitor and I expect that the Crown will accept liability of the loss.

I refer conclusively to the evidence that in regard to his own superior  the registrar, under instruction, failed to act upon giving me a retrial within a period of 12 months, that caused me the loss in regard to rent, chattels, my parents’ inheritance and in regard to that period of time.  I believe, just briefly, that Justices Doyle, Besanko and Lander only referred that the property was sold five months after I was evicted.  There is still the matter of the negligence, and, even without the extension of 12 months’ loss, there is the five months prior to that area to be re‑established as loss, failing the registrar from giving me a hearing.

The defendant supplied not one piece of evidence, produced only relevant at the time of the claim.  They only found matters to suggest that they did something to find a defence to my claim.  I am asking the High Court to use its discretion in regard to good faith/bad faith.  There is no question that the registrar acted in a lack of good faith, total bad faith, in not giving me the hearing.  In regard to having the hearing, the possibility of the property not being sold, which is in section of my documents, for which I was ordered a retrial before the Full Court.  I have filed documents, if you have briefly read them, consistently asking for a stay on the property, which would have avoided the total situation.

At the time, I was living in a tent in a caravan park, 10 foot by 10 foot, with a TV, while I was fighting for my three children in the High Court.  The person referred to, by the registrar, that he did speak to somebody, was a listing clerk called Helen Jukes, who I have to refer that I have a second claim coming in regard to the property.  When the property was sold, there was a loss to me of $23,000, which does not sound a lot of money, but the equivalent to a judge who had a house at $500,000, one fifth would be a $100,000 loss. 

So what I am saying in regard to the bad faith, the listings clerk, who has never been produced to supply any evidence to confirm that they even discussed the matter of a retrial in regard to the letters of evidence that I have produced, the flow‑on disaster that followed from that, the actual listings clerk was the person who signed that property negligently, which is my second claim.  In regard to the bad faith, the Family Court have never produced the listings registrar – she has gone missing – even when I asked the judge to give me orders.

Every authority that I have filed supports me.  In regard to the negligence, I assume that every judge in this Court would know the negligence laws, probably better than I, although I probably know them as much.  There is no question that the registrar was negligent in not giving me a hearing.  12 months later, the matter got discussed.  In regard to section 35 of the Judiciary Act, the relevance relating to a retrial in regard to the High Court is, one, there must be an error of law.  There is no question there was an error of law.  He was negligent, 100 per cent, in fact, to the extent of a beginner, who is still liable on his first day of work in not appointing me that retrial.  The retrial documents have all been filed, my orders for a retrial, to confirm.

The second criteria for having an appeal heard by the High Court is that there has to be a public importance.  What I am saying in regard to that, I have been wronged by the Commonwealth appointed employees and, in particular, or specifically in this case, the court registrar.  I suffered huge losses, which is the second criteria of negligence, of moneys worked for over a 30‑year period and further education for promotion.  I worked after work and did Institute of Management courses in regard to my promotion in the business.  I lost all that money.  I had the orders in my favour for a retrial.  They did not act.  I have referred to the follow‑on error of the property, which is following on in regard to the bad faith in the Family Court.

KIRBY J:   What do you say in relation to the statement in the Full Court that it is not realistic to suggest that any loss could have flowed from a failure to re‑list the matter between 26 March 1996 and 11 April 1996?  It is a rather short interval.  It is a very short interval.

MR CHEETHAM:   With regard to that, I was evicted from the property in October the year before.  The causative link is obvious to a blind person.  If I had had that hearing and been successful, the wife withdrew the application 12 months later.  The wife applied for hardship on a professional job, and I was on a pension – I had the care of the children prior.  I assume I would have got the orders in regard – she could not possibly have got the orders, so she withdrew.

In regard to the loss, I was not paying rent in a house that was virtually freehold – I might have paid $10 a week, I think I had $1000.  The rent I went to in a caravan park with a tent was $70 during the off‑season and $107 a week during the Christmas period, while I was waiting for a re‑trial and fighting to the High Court for my three children.  The loss during that period, if I had been given the hearing immediately, that the Appeals Registrar, Peter Burke, advised Mr Heuzenroeder to give me a hearing.  If I was given that hearing the next day and awarded and successful, or even got the appropriate orders – I had filed the appropriate orders, you will see there, asking for appropriate orders – I would have suffered no loss.

In regard to the 12‑month period, I believe I am entitled from the date of eviction to the property until the date that the wife withdrew.  The Family Court never gave me that hearing.  I had a successful appeal to the Full Court and a hearing was never forthcoming, which was the orders of the Full Court.  There was no question the registrar was negligent.  He did nothing whatsoever.  They have not appeared in the court, they produced not one ‑ ‑ ‑

KIRBY J:   We are talking of less than two weeks, Mr Cheetham.

MR CHEETHAM:    Sorry, who is talking of less than two weeks?

KIRBY J:   You are.

MR CHEETHAM:   I am.  I am talking about from the date of eviction in October of the year before, to the re‑trial ‑ ‑ ‑

KIRBY J:   Yes, but you are suing the registrar.

MR CHEETHAM:    ‑ ‑ ‑ to a non‑re‑trial when I was successful in March of 1996.  Right.  The property was then settled a week later at a loss equivalent to a judge of $100,000, in my case $23,000, which is the equivalent on my social standing.  The loss is from the date of the eviction.  If I had had that trial before the registrar, as I was ordered by the Full Court for a re‑trial, and was successfully put back in that property and was given appropriate orders to stay the property, I would not have had to pay the rent in the caravan park.  So the rent accumulated to some heavy loss, which is in the documentation, I think, for 12 months, is probably ‑ ‑ ‑

KIRBY J:   Well, do not worry about the damage.  You have to get into the cause of action first.

MR CHEETHAM:   Well, I have established here that the criteria for a right to go to a trial in the High Court is that the registrar is negligent, an act or omission that was not complied to from an actual instruction of a Full Court of the Family Court for myself to have a re‑trial.  I won a re‑trial.  The Regional Appeals Registrar of the Family Court instructed Mr Heuzenroeder that within two days to give me a re‑trial hearing, and those letters are filed in the evidence, documents which you should have read.  They are conclusive.

The loss – I lived in a tent – I think you will find everything I have lost.  I have been robbed three times.  Seacliff is a heavy area, and my tent was destroyed.  My parents, I paid interest – instead of being in that freehold house, I paid interest for that 12‑month period of time on all bank cards and so forth.  The loss is easily substantiated and is causative.  I realise the Crown Solicitor put through there is no causative link, which is ridiculous. 

The causative link is obvious, that if I had the re‑trial the week after I got the orders and had not stayed in the tent, I would not have had to pay all that rent, I would have been back in the property, the property would have been stayed and avoided the second claim for $100,000, which is the $100,000 loss equivalent to a judge, $37,000 to me, and all those matters would have been appropriately expected to be dealt with by the Family Court.  The registrar failed to – there is no question that I am suing the registrar in relation to negligence in regard to not giving me an instructed re‑trial from his own superior like, and they produced no evidence.

So the first matter of criteria of going to the High Court is conclusive.  The second matter is public opinion in regard to the loss – I will go to that.  Just in regard to the second criteria of public interest, as a parallel to like the Tampa affairs, Asian illegal immigrants coming into this country, unauthorised border arrivals, they are lawbreakers with free legal representation, massive time spent by hearings and expense to the Australian government.  However, I admire their courage in crossing the sea. 

I am a born Australian citizen wronged.  I am not a criminal or in any matter breaking the law.  The Commonwealth appointed employees – I use this stand to establish that in my public interest, and in the public interest of all Australian citizens, that these matters should not be incurring just in my own interests, but in the interests of all Australians.

I say I should be granted leave or special leave to be heard in relation to the minor time required in a High Court trial as a comparison to my previous referral to the government money spent in situations different.  What I claim is that it is an injustice if the matter is not heard and I will quote Martin Luther King, “Injustice anywhere is a threat to justice everywhere”.  Injustice of me in regard to these matters and the money I have lost in regard to the circumstances, all that registrar had to do was carry out the simplest instruction that a first year employee could have administered by walking in and getting a listing clerk to file me a re‑trial.  You have read all the orders of the re‑trial.  All my losses would have been avoided.

In that last section was the public interest section.  What I am saying is, I worked 30 years, I currently have – I have had 3 cents in the bank since March of 1999, which I filed the documents, if you read them, your Honour, and I assume you have.  In regard to my loss, my parents worked 50 years and left, I think, $5000 to my sister, my brother and myself, my late mother.  Those moneys were dissolved during the period I was in a caravan park and with a possibility of a trial should have been back in my house.

Since the moneys that I have lost, I have been on a pension and in bad health.  I have suffered days without food prior to my next pension day.  I have been unable to buy medicine, confirmed by the statutory declaration I have filed with the Court.  My pharmacist had to give me credit for medicine, because on a pension – and the moneys that I should have had ‑ my house is valued at $108,000, just as a by‑section – I should have got $54,000.  If it cost me $20,000 to fight for my three children, I should have had $30,000 in the bank, in regard to the $27,000 the follow-up claim I have lost and a further $180,000 in regard to that to employment, which I obtained.  These matters are initial matters leading up to that.

I have no credit cards.  I have been bound to my house since 1996.  What I am saying is, it is a human rights issue, and as in regard to a human rights issue the matter is of public importance and it should be heard by the High Court.  I have been housebound since 1996 as a result, unable to enjoy normal social life.  I have been in huge debt during that period of time when in case if I had not lost, had not had to pay rent for 12 months in a caravan park, I could have paid bank cards and credit cards, and I would not have been in debt or had any financial problems and would have lived comfortably on a pension.  I have paid huge unnecessary debts for interest.  They would have been cleared. 

All avoidable by the defendant, if the defendant had given me a re‑trial and I had got the appropriate orders to enter my house, there is – I think I filed in the latter filings five documents that said, on every one, I was asking for a stay on that property.  I was going to the High Court for the three children.  There was no necessary matter to sell that property and I should have been back in it.  Mr Heuzenoeder did not give me a chance to do that.  He did not give me a trial.  I was wronged by the court and this leave acceptance matter for trial to confirm proper adjudication. 

I believe, in regard to section 35, there is sufficiently proven and there is massive documentation in support, every authority that I have filed in regard to duty of care, reasonable care, the Ann’s Case, the Kamloop’s Case, all support – every one I have highlighted the sectional reference for you there suggests that the defendant is liable in regard to all those matters.

My current health, because I live in a unit, covered with books and papers for eight years, I am in a position where I cannot work for possibly another eight years, in regard to my current health at the time, which the doctor confirmed.  I believe if these cases had not had to proceed that I would not be in that position.  I am asking the Court, when it goes to trial, that I be given the right to special damages in regard to that matter.  I am establishing here that I am fighting for the return of my own money.  I am not trying to make profit – I am establishing money.

I have highlighted all the pink slips here to go through, but, if you have been through them, and you know the law as well as I do, everything establishes, even…..establishes consequential flow‑on of loss.  The question you said about the causative link, I believe it is blatantly obvious.  If I had had the re‑trial, there would not be any loss whatsoever.  I am still entitled even from loss from his negligence from the date of eviction to the date of that, what I am saying is, to the 12 months, where the wife withdrew the claim, so there was no need for a re‑trial.  That was 12 months down the track.  My summary of argument ‑ ‑ ‑

KIRBY J:   Yes, we have read your summary of argument.

MR CHEETHAM:   If you read it, I highlighted those sections.  I believe that each case stands alone.  This case and the following case are the strongest cases I have ever read against the Crown in my research.  When I am well enough, I put hours into the Supreme Court library to establish and to find all these documents, because, as you will also see at the back, I had the file that Mr Randall, who was going to be my solicitor, when I ran out of money, asked for a top‑up money and I had no money left, could not top‑up.  You will find that the document at the back there says that he asked for top-up money and then withdrew.  So I am saying the Court cannot be prejudicial against me for being a layman in regard to this matter.

KIRBY J:   Mr Cheetham, your time has expired.

MR CHEETHAM:   Can I just say that the fact that the respondent is not even willing to front this Court to try and file some sort of defence, can I just have a fraction longer, because he was entitled to 20 minutes and then my response to that would have been five minutes.

KIRBY J:   You cannot have the other side’s 20 minutes when they have not turned up to exercise it.

MR CHEETHAM:   Well, 20 minutes in a person’s lifetime ‑ ‑ ‑

KIRBY J:   The opponent has not turned up because he considers your case to be unarguable, and therefore he is not here.

MR CHEETHAM:   My case is unarguable; the question is his case is unarguable.  He did not act ‑ ‑ ‑

KIRBY J:   Yes, well, we understand the way ‑ ‑ ‑

MR CHEETHAM:    As long as you realise he did not act from an instruction.  It was an act of omission, it was a misfeasance, a non‑feasance of a public office ‑ ‑ ‑

KIRBY J:   Well, we understand the way you put it, and we understand this is very stressful for you ‑ ‑ ‑

MR CHEETHAM:   No, it is not stressful for me.

KIRBY J:    ‑ ‑ ‑ but we have read the submissions.

MR CHEETHAM:    It is not stressful for me.  I mean, if I had the time, I could speak here for another four hours and I could ‑ ‑ ‑

KIRBY J:   Well, I am afraid you do not have the time, so ‑ ‑ ‑

MR CHEETHAM:   I realise that, but I could absolutely convince you that, well, it is blatantly obvious that he was negligent and that I suffered loss ‑ ‑ 

KIRBY J:   Thank you very much, Mr Cheetham.

MR CHEETHAM:   Thank you.

KIRBY J:   Like the Full Court of the Supreme Court of South Australia from whose order this application comes, we have a real doubt that the Registrar of the Family Court of Australia, whom the applicant seeks to sue for negligence, owed a common law duty of care answerable to a private action.  However, like the Full Court, we will assume that the applicant could overcome that problem.  Even then, the reasons of the Full Court are compelling and correct.  There is no arguable basis of fact or law for the applicant’s claim.  No error has therefore been shown on the part of the Full Court.

There are no prospects of success if special leave were granted.  The application for special leave is therefore refused.

MR CHEETHAM:   I think you are confused, your Honour.

KIRBY J:   Call the third matter.

MR CHEETHAM:   Would you like me to present all the documents to the press?

KIRBY J:   I am sorry?

MR CHEETHAM:   Would you like me to present all the documents to the press?

KIRBY J:   You can take whatever course you consider appropriate, Mr Cheetham.  Thank you very much.

MR CHEETHAM:   Well, how did you not make a judgment in regard to evidence?

KIRBY J:   Mr Cheetham, resume your seat, please.  Call the third matter.

MR CHEETHAM:   It is the strongest case ever against the Crown.

AT 10.45 AM THE MATTER WAS CONCLUDED