Cusack v Australia and New Zealand Banking Group Limited

[1991] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1991

B e t w e e n -

PATRICK LEO CUSACK

Applicant

and

AUSTRALIA AND NEW ZEALAND

BANKING GROUP LIMITED

First respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second respondent

Application for leave

to appeal

BRENNAN J GAUDRON J McHUGH J

Cusack(4) 1 6/11/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 1991, AT 12.01 PM

Copyright in the High Court of Australia

BRENNAN J: Are you appearing for yourself, Mr Cusack?

MR P.L. CUSACK:  Yes, I appear on my own behalf,

Your Honour.

MR W.B. LOFTUS: If the Court pleases, I appear for the first respondent, the ANZ Bank. (instructed by Gadens Ridgeway)

BRENNAN J: Yes, Mr Cusack.

MR CUSACK:  Your Honour, the only material I have prepared

to hand up as a submission involves the statutory basis of my submissions. I have three copies for

the bench and one for my learned friend.

BRENNAN J: What is the point you wish to make, Mr Cusack?

MR CUSACK:	Am I on a time limit, Your Honour?
BRENNAN J:	That depends on the point you wish to make.
MR CUSACK:	Your Honour, something happened outside this

Court yesterday which I would mention very briefly,

which bears on this matter. I was graciously

permitted to use the telephone to make two local
phone calls, as a result of which disciplinary

action appears to have been taken against members

of staff. I have explained why I did what I did

and why that is improper. It relates to the form of money I had on me at the time. I had only one

gold coin which will not be accommodated by public

telephones. It is coin of the realm, bearing

Her Majesty's face, and when I cannot use the

Queen's money in a public telephone, this Court was

gracious enough to render assistance, and I would

place that on record.

BRENNAN J: Very well. Yes. Now, are we dealing with the

same question as we have just been dealing with,

with Mr Skyring?

MR CUSACK:  Not in - no. That question is involved,

Your Honour, but it is not involved alone. There

is a much deeper issue which extends into the

banking area and involves a separate area of the previous application, I will remake the points

which are made therein, but on a basis which

involves the plain meaning rule and the wording of
section 115, which I believe has not been addressed
by any of Mr Skyring's applications sufficiently or

by the Court's hearing on appeal of that matter.

BRENNAN J: What is the proposition that you wish to have

removed into this Court for hearing and

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determination and which is pending in the Supreme

Court of Queensland?

MR CUSACK:  The initiating matter is a petition in the

Supreme Court of Queensland which has been refused,

and that refusal is currently on appeal. The

petition was to overturn all judgments and orders

given against me in favour of the ANZ Bank,

effectively dispossessing me of my matrimonial

home, in relation to terms of a mortgage document

which I have consistently maintained, from the

outset, in my original defence and counter claim,

to have been a fraudulent document.

That argument has been dismissed, improperly,

from the very first hearings of that matter back in

1988. All efforts to reinstate that ground of

fraud have been overlooked, and on the basis of

this continuing refusal to admit and accept the proposition that banking mortgage processes are

fraudulent and provably so on a constitutional

basis, I believe warrant overturning His Honour the

Chief Justice's refusal to remove that central

question of banking fraud into this Court.

BRENNAN J: What is the state that your litigation has

reached in Queensland? Is there an appeal pending

to the Full Court?

MR CUSACK:  There is an appeal filed in the supreme court

against the refusal to grant my petition to overturn all previous orders and judgments.

BRENNAN J:  Why should this Court not leave that matter to

be determined by the Full Court of the Supreme

Court of Queensland?

MR CUSACK: Because, Your Honour, there is a constitutional

basis on which the banking fraud issue needs to be

determined.

BRENNAN J: And that is the question you want removed?
MR CUSACK:	I believe that is the crucial question,

Your Honour, which I require to be removed and if

it is removed then it will involve some elements

of, at least part of the evidence which will - I

guess what I ought to term the answer to the

currency question may need to be reconsidered.

BRENNAN J: Well, now, is that the question that you want

removed?

MR CUSACK:  No, no, the banking question is the essential

question, the question of fraud on a constitutional

basis.

Cusack(4) 3 6/11/91

BRENNAN J: Right. Now, can you identify or express, as

briefly as you can, what this banking question is?

MR CUSACK:  Yes, Your Honour. As briefly as possible, it

involves a very clear and precise understanding of the term "credit" which term is the foundation and possibly sole purpose of banking as an industry so

called. The nature of credit, that concept needs

to be expanded at great length in order for the

fraudulent nature of the banking process, in

relation to mortgage taking, to be exposed for what

it is. That is one of the essential elements which

will need to occupy this Court's mind, because on

the proper construction of the meaning of the term "credit" which, ultimately, is the lifeblood of an

entire nation, and which exists on a foundation of

another form of money which relates to the currency

question itself but is of much larger scope and of

much more immense social impact because of the

enormous ramifications of the credit process into
the bowels of the nation, including the

administration of justice.

That concept needs to be expounded on at great

length. That exposition of the concept of what

credit actually is, how it comes into existence,

the ownership of it, the true and proper assessment

of ownership of credit at the moment when it

appears in existence has never properly been
addressed by any court. Despite my efforts to do

so in the lower courts it has been side stepped,

ignored and overlooked by using a much more

simplistic approach that I have a bee in my bonnet

or that I am a rat bag; terms which have been used

by our learned justices of the Federal Court,

albeit not in a direct way but implicitly, implying

that I may well have that bee in my bonnet or be a

rat bag on this issue.

BRENNAN J: What is the question though that requires this

Court to remove a matter which is already pending

in the Supreme Court of Queensland?

MR CUSACK: Following on from a full understanding of

credit, there arises the question of ownership of
credit by a bank which has induced me to enter into

an agreement known as a mortgage. The implication

within that document, on its face, is that the bank

is properly entitled to ownership of credit. And

this is related to the Constitution, in

section Sl(iv) of the Constitution, which must be

read in its entirety.

The entire quote of that section is extremely

important:

Cussack(4) 4 6/11/91

subject to this Constitution ... .. for the peace, order, and good government of the

Commonwealth with respect to .....

(iv) Borrowing money on the public credit of

the Commonwealth -

In my argument, I will outline a basis of

interpretation of all of that wording, the

restriction within the first line within this

Constitution, another restriction "for the peace, order, and good government", and another implication in the absence of any specific

requirement that borrowing itself is necessary or

permitted or whatever. There is no exclusion in

that section to prohibit borrowing in certain

circumstances or "for the peace, order, and good

government of the Commonwealth".

My argument will go further to suggest that

the current Banking Act, which is the lead

document, in my submission, by the wording of its

long title, allegedly has been established to make

provision for the protection of the currency and
the public credit of the Commonwealth, would

purport to have been enacted under two heads of

power: the banking head of power and the

section 51 ( iv) .

If the Banking Act has, indeed, been enacted for the protection of the public credit of the

Commonwealth, as its long title suggests, I will

demonstrate on removal that the manner in which

that Act has been administered has debauched the

public - far from protecting it, has debauched the

public credit of the Commonwealth to the point

where the nation verges on bankruptcy and that

either the Act itself or the manner of its
administration in allowing under the licensing
process for bank licences - or whatever that is

called - the use of mortgage processes which

achieve this end must be considered

unconstitutional in so far as they do not protect

the peace, order and good government of the

Commonwealth and, in fact, damage the public credit

of the Commonwealth to the extent that we see all

around us today.

The Chief Justice, in his dismissal of my

application for removal, denied justice - - - The Chief Justice in his dismissal of my
application for removal denied justice - - -

BRENNAN J:	Mr Cusack, I think we understand the nature of the problem that you wish to agitate. Are you
Cusack(4)	6/11/91

wishing to attack the validity of the Banking Act

or the validity of its administration?

MR CUSACK:  Permit me to just assimilate what you are

saying, Your Honour.	I do not want to take that as
a - - -

BRENNAN J:  No, I just want to identify precisely the point

that you are - - -

MR CUSACK:  It goes a little further than that, in my mind.

I am not sure whether that covers it completely.

As a layman, I see the problem as somewhat removed

from those two specific areas, but I imagine that

the bank mortgage process, as it impinges on a

layman, could be said to come under the

administration of the Banking Act.

BRENNAN J: Well, state it as you wish, whatever the point

is.	I am endeavouring to identify what the point
is.

MR CUSACK:  Yes, it would come under one or other of those

two areas.	I think that is a fair statement,
Your Honour.

BRENNAN J: Now, the next question is this: why should not

that point, whatever it may be and however you wish
to develop it, why should it not be left for

determination by the Supreme Court of Queensland? Now, understanding, broadly at all events, though not in detail, the nature of the point you wish to

make, it seems to us that you should be able,

within five minutes, to tell us why the matter

should not be left in the Supreme Court of

Queensland, rather than being brought here.

MR CUSACK:  My understanding of the legal processes,

Your Honour, is that a constitutional

interpretation can only be given by this Court.

BRENNAN J: Well, that is not correct.
MR CUSACK:	Is not the jurisdiction of the High Court

exclusive in that area, interpretation of the

Constitution?

BRENNAN J: It is not.

MR CUSACKT I believe it is in the Constitution itself.

BRENNAN J: You may believe it, if you wish, but in all

events, you have five minutes from now to tell us

why it should not stay in the supreme court.

MR CUSACK:  I would appreciate some assistance, as a layman

Your Honour, in an explanation of why the

Cusack(4) 6 6/11/91

Constitution does not mean what it says. The

Constitution I referred to is one of the later section which invests this Court with exclusive

jurisdiction. Could I be referred to a statute

which has changed that situation. "The judicial

power of the Commonwealth shall be vested in a

Federal supreme court to be called the High Court
of Australia." The interpretation of the

Constitution - I cannot find the section.

BRENNAN J: Well, it is in Chapter III of the Constitution

and in the Judiciary Act.

MR CUSACK: It is Chapter III I have, Your Honour.

McHUGH J: Before the Judiciary Act was passed, before this

Court was set up, the State courts, in a series of

cases, interpreted the Constitution. There was no

High Court; there were no federal courts.

MR CUSACK:  I take that point, Your Honour, as an historical

evolution, but once the High Court came into
existence did it not assume the judicial power of
the Commonwealth exclusively in the area of

interpretation of the Constitution?

McHUGH J:  No, it did not, and State courts interpret the

Constitution probably every day of the week.

MR CUSACK:  Where conflict between statutes arise and

require an interpretation of the Constitution, I am

at a loss, Your Honour; I believed that that was a

function of this Court.

BRENNAN J: Well it may be that that is your belief; it may

be that is the problem of why you are here,

Mr Skyring, but this Court - - -

MR CUSACK:	I am Mr Cusack, Your Honour.
BRENNAN J:	Mr Cusack, my apologies to you.

MR CUSACK:  Thank you; accepted.

BRENNAN J: But that is the very problem, you see; if you do

not understand the basic propositions, we really do
not have time to instruct you in them, nor is it

our function.

MR CUSACK:  On the basis of what you are saying,

Your Honour, I do understand the point you are

making, that the Supreme Court of Queensland can

judge on whether the Banking Act is valid or not;

whether the federal Act is valid.

McHUGH J: It is a combination of section 77 of the

Constitution and section 39 of the Judiciary Act,

Cusack(4) 7 6/11/91

off the top of my head, are two bases for the

Supreme Court of Queensland adjudicating the

matter.

MR CUSACK:  Can the Supreme Court of Queensland overturn a

federal Act of Parliament?

BRENNAN J:  You must find the answers to these questions so

that you can make your submissions if you wish to,

Mr Cusack. But again, half of your time has

elapsed. Let it start if you like from now.

MR CUSACK:  No, I am on notice, Your Honour. I accept the

notice originally given of five minutes. The

quandary which you have presented me with prevents

me from making sensible submissions until I can

resolve this point in my own mind. If what you are

saying is the case, then the five minutes is well

spent in my learning so much of the law as applies

in this case, then I can better prosecute the case

in the lower courts. I am seeking to make the best

use of my five minutes by learning from the best

teachers there are.

BRENNAN J: Well, let it be assumed that if there is some

constitutional challenge that you wish to raise

against the validity of the Banking Act, or the
operation of the Banking Act, which is material to
the case in which you are involved - and that is a

big qualification - - -

MR CUSACK:	Yes, I understand that.
BRENNAN J:	- - - then, the question can be determined in

the course of that litigation wherever it is now

pending, and that it is not necessary to remove

some of that litigation into this Court so that

this Court can determine only part of the cause of

action.

MR CUSACK:	How much time do I have left?
BRENNAN J: About two minutes, Mr Cusack.
MR CUSACK:	Let me digest what you have said, Your Honour.

I am most intrigued by what you have said. Let me

perhaps try and make what I consider to be the

major point. It will be in defence of the stand

that Mr Skyring and I have each separately taken,

although they appear to be deeply intertwined.

Both the lower courts and this Court

consistently in all applications by Mr Skyring and

myself have attempted to uphold the proposition

that there is no inconsistencies between two

federal Acts. Yet the facts which have been

presented in all the jurisdictions we have appeared

Cusack(4) 6/11/91

in demonstrate a patent contradiction which even

the simplest child can comprehend, namely, that

Australia's legal tender gold coins are not

exchangeable with Australia's legal tender paper

money.

If that patent contradiction is not sufficient

evidence to convince this Court that there is an

inconsistency between two federal Acts related to the specific wording of the Constitution, I would

simply put these final statements to you in

relation to that argument which ought, I believe,

to give this Court ground to overlook all previous

judgments and decisions - let me call them

opinions - given in previous hearings of this

issue. It is an English language analysis of
section 115.

Ignore the first part, the States shall not coin money, that is too obvious to spend time on.

Let me convert the word "nor" to "and not".

English grammar "nor" is exactly equivalent to "and

not". Let me, therefore, restate the second phrase of section 115 "and a State shall not make anything but gold and silver coin a legal tender in payment

of debts".

The phrase which I have developed there, "shall not make anything but" requires very careful

consideration for it creates a boundary around one

thing and talks about what is outside that

boundary. If I talk about anything but, I am

talking about what is inside the boundary and,

therefore, if I restate "shall not make anything

but", which is a double negative in a positive

language, it says, "shall make only". A "shall

make only" is exactly equivalent in this language

to "shall not make anything but".

BRENNAN J: Mr Cusack, section 115 - - -

MR CUSACK: Section 115, yes, Your Honour.
BRENNAN J:	- - - is directed to the powers of the States.
MR CUSACK:	No, it is directed to the inconsistency between

the Currency Act section 36(1), sorry, the Reserve

Bank Act section 36(1) and the Currency Act

section 16, which are in conflict as to what

constitutes legal tender.

McHUGH J: That is your whole trouble, 115 has got nothing

to do with - - -

MR CUSACK:  The Commonwealth, it has nothing to do with the

Commonwealth, it has been put many times.

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MCHUGH J: Yes.
MR CUSACK:	Yes. All right, let me proceed a little

further, "A State shall only make golden coin a

legal tender". The States can make gold and silver

coin legal tender; still does not involve the

Commonwealth. Let me go one point further, how can

the States make gold and silver coin a legal tender
if they cannot make coin, physically, is the first

point - - -

McHUGH J: But they have not made anything tender?

MR CUSACK:  No, no, right. There are only two

possibilities, either the States act positively in the legislative field to pass an enactment or they

do nothing. Doing nothing is within the

Constitution, effectively making something else

legal tender from some other source. The States

have, in fact, although by passive inaction,

effectively made paper money legal tender in the

State of my home. Paper money has been made legal

tender in Queensland by the passive inactivity of

the State legislature in breach of its duty - I

call it a duty, Your Honour - it is a duty in so

far it is mandatory by my interpretation of "shall

not make anything but", that the States are obliged

to make only gold and silver coin legal tender.

BRENNAN J:	Your time is up, Mr Cusack.
MR CUSACK:	Yes, Your Honour, so that it is completely

obvious to both the Court and the gallery that that

coin is $100, it is legal tender under the Currency Act, it is not exchangeable for $100 note. At face

value it also claims to be legal tender. I

therefore have a choice and I will take this

choice - the Court may not be aware that the ANZ

Bank in this case has refused to accept this in

settlement of an outstanding account, and that is

one of the issues in the case in Queensland.	Thank
you for your time, Your Honours.

BRENNAN J: The application is refused.

MR LOFTUS:  If the Court pleases, the first respondent seeks

an order for costs.

BRENNAN J: What do you have to say about that, Mr Cusack?

MR CUSACK: The submission is that the award of costs is a

penalty in fact, if not in its intention. I

believe that no penalty ought to be imposed upon a

layman who seeks to correct an error which is not
of his making and, apart from that basis, I urge

and on a legal basis, that if the Crown insists on

costs being paid by me it ought to provide the

Cusack(4) 10 6/11/91

means by which I can pay them strictly legally,

which requires an unambiguous form of currency

which can be used to settle the debt. I have a

$100 coin in my possession. If the costs exceed

that I am physically unable to pay the remainder
strictly legally, according to my interpretation of

the Constitution and I will be unable to pay costs

because of inaction of the Crown in Queensland.

BRENNAN J:  The application will be refused with costs.

AT 12.25 PM THE MATTER WAS ADJOURNED SINE DIE

Cusack(4) 11 6/11/91