Cusack v Australia and New Zealand Banking Group Limited

[1991] HCATrans 167

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4

'I

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B14 of 1991

B e t w e e n -

PATRICK LEO CUSACK

Applicant

and

AUSTRALIA.& NEW ZEALAND BANKING

GROUP LIMITED

First Respondent

and

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

Application for removal
pursuant to section 40 of

the Judiciary Act 1903

Cusack(3) 1 27/6/91

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 27 JUNE 1991, AT 10.53 AM

Copyright in the High Court of Australia

MR P.L. CUSACK:  I appear in person.

MR P.E. HACK: If the Court pleases, I appear for the

Official Trustee in Bankruptcy in this matter,

Your Honour. (instructed by the Australian

Government Solicitor.

MR G.L. DAVIES, QC, Solicitor-General for Queensland: I

appear with my learned friend, MR J. BOND, for the

Attorney-General for Queensland. (instructed by

the Crown Solicitor for Queensland)

HIS HONOUR:	Yes, Mr Cusack.
MR CUSACK:	I am attempting to assimilate what you have said in relation to the previous case because there is a
very tightly interlinked weaving of the matters of
the currency question which Mr Skyring has dealt with on several occasions in the High Court before
with appeals to the Full Court.  On the basis of
the most recent judgment you have given referring to those matters, I find myself forced to repeat
and expand further upon some of the matters which
have been spoken about so far.  I find myself in
something of a quandary here, having to face learned counsel in opposition and such an eminent person as yourself, speaking to reiterate matters
which have been reiterated several times already,
with the task ahead of me of demolishing all.
HIS HONOUR:	Mr Cusack, could I ask you some questions with

reference to the subject-matter of this litigation

because I do not altogether understand it?

MR CUSACK:  I am sorry, Your-Honour, I can give you a very

brief history of it.

HIS HONOUR:  Yes, well, perhaps you can do it in response to questions that I put to you.

MR CUSACK:  Very well.

HIS HONOUR:  Now, as I understand it, you and your wife

borrowed money from the Bank.

MR CUSACK:  My wife and I signed a mortgage, Your Honour;

credit was issued as a circulation. I contend that

the term "borrowing" is not appropriate; it

involves understanding of the contract law

application to bank mortgages and, further, that

fundamental principles of - - -

HIS HONOUR: Well, can we put it in a neutral way: credit

was extended to you.

Cusack(3) 2 27/6/91

MR CUSACK: Credit was put into circulation - let us leave

it at that for the moment, Your Honour - for

business purposes, at my instance.

HIS HONOUR:	Am I right in saying that the Bank alleged there was default under the mortgage?
MR CUSACK:	Yes.
HIS HONOUR:	And that as a result of the alleged default the

Bank alleged that you owed it the sum of $120,000

approximately?

MR CUSACK:  Yes, Your Honour.

HIS HONOUR: Subsequently, the Bank then commenced an action

against you seeking possession of the land.	You
sought to file, or did file, a defence and a
counter-claim.	What happened to that defence and
counter-claim?

MR CUSACK:  Pardon me if I am slightly incorrect,

Your Honour.	My memory of events is straight off
the top of my head here.	In effect, an application

was made under a rule of the supreme court which

carries the implication that there could be no

grounds for defence in a case where a bank mortgage

had been signed.

HIS HONOUR:  What, an application was made to strike out the

defence and the counter-claim, is that right?

MR CUSACK: 

The effect of the application by the Bank's

counsel of this application - the mention of this
rule in the supreme court rules was that the

defence was struck from the record; leave being

granted to enter an amended defence, as I recall,
within 28 days.

HIS HONOUR: 

Did you enter an amended defence, or not?

MR CUSACK:  I argued, Your Honour, consistently from the

beginning that such striking was not appropriate.

HIS HONOUR:  I am not so much concerned with the arguments

you presented; I am rather concerned just to get

in my own mind the history of the case.

MR CUSACK:  I see. I cannot recall entering an amended

defence, Your Honour. My objection all through

here has been that that defence should not have

been struck.

HIS HONOUR:  If I can interrupt you, Mr Cusack, it may be

that Mr Hack can provide me with some elucidation

on this point. If you disagree with anything

Mr Hack says you will have the right to do so.

Cusack(3) 3 27/6/91

MR CUSACK:	Thank you, Your Honour.
HIS HONOUR:	Yes, Mr Hack.
MR HACK:	Your Honour, on the 19 October 1988

Master McLachlan ordered that the counter-claim be

struck out and that Mr Cusack be given leave to

deliver an amended pleading. No amended pleading

was delivered. Thereafter, on 16 November 1988

Mr Cusack brought an application seeking a stay of

execution of the judgments on the basis that he

was

HIS HONOUR:	What happened to the defence?
MR HACK:	The liberty to replead was not availed of.
HIS HONOUR:	But you said that the counter-claim was struck

out. I had understood that he had filed a defence

and a counter-claim.

MR CUSACK:  I think that is right, Your Honour. I think you

are correct there.

HIS HONOUR:  Yes, well, we will just see if we can follow it

through.

MR HACK:  Judgment was given on a summary judgment

application.

HIS HONOUR:  I see. The counter-claim was struck out, then

there was an application for summary judgment

notwithstanding the existence of the defence on the

file?

MR HACK:  No, there was an application for summary judgment.

The orders sought were that the plaintiff recover possession and the further application was that the counter-claim be struck out.

HIS HONOUR:	I see.
MR HACK:	The plaintiff was successful in both of those.

That is, it got judgment for possession and the

counter-claim was stuck out with Mr Cusack being

given liberty to replead.

HIS HONOUR:  Yes.

MR HACK: Thereafter, on 16 November, Mr Cusack brought an

application seeking a stay of execution on the

basis of proceedings he had commenced in this

Court. Leave was refused to issue writs of

certiorari by Mr Justice McHugh on

28 February 1989. There have been a great number

of matters in the meantime, some of which are not

Cusack(3) 4 27/6/91

material there, as to the staying of sheriff's

writs and such like.

HIS HONOUR:  I take it from what you say that a direction

had been given to the Registrar of the High Court

by a Justice of the Court that no writ be issued by

Mr Cusack without the leave of a judge first had

and obtained?

MR HACK:	Your Honour, I am not aware of that but -
HIS HONOUR:	I do not understand why Justice McHugh would be

concerned with leave to issue a writ of certiorari
unless you are saying that he refused an

application for an order nisi for certiorari.

MR CUSACK:  No, Your Honour, that is correct. The

Registrar did issue a note on the document that it

not be issued unless leave was first had and

obtained under order 40 - - -

HIS HONOUR:  That means a Justice of the Court must have

given a direction to the Registrar, Mr Cusack.

MR CUSACK:	I am sorry, was it Wilson?
MR HACK:	Yes, it was.

MR CUSACK: It was Justice Wilson, I think, who made that

notation on that writ, Your Honour.

HIS HONOUR: Justice Wilson, I see.

MR CUSACK: That was about February of that year.

MR HACK: February 1989.

MR CUSACK: February 1989, yes.

HIS HONOUR: Well now, as I understand it from the history

given to me by Mr Hack, the Bank obtained summary

judgment and recovered possession of the land.

MR CUSACK:  Firstly against my wife and subsequently against

both - I am sorry, no.	My wife did not enter a
defence.	I am afraid this has had rather traumatic

effects on our family but, that aside, the summary

judgment was effective against my wife very early

in the piece, I recall, because she had entered no

appearance or defence. Mr Hack was about to and

did, I think, explain that I sought relief also

from the supreme court itself.

HIS HONOUR: That was an application for stay of execution,

was it?

Cusack(3) 27/6/91

MR CUSACK: That was an originating summons, yes, that is

OS713.

HIS HONOUR:  And that was refused?

MR CUSACK: That was refused and appealed to the Full Court.

First determination there was by Justice Kelly, SPJ

I think, is his full title. His judgment was

appealed to the Full Court. Now, there were some

interesting interactions in timing as to how things proceeded just at that instance, Your Honour. I am

afraid I do not have a calendar memory. I may be a

reasonable engineer, but I am not a good calendar.

MR HACK:  Your Honour, my solicitors have prepared a

chronology - - -

MR CUSACK: That may help.

MR HACK:	- - - which sets out - - -
HIS HONOUR:	Can you show it to Mr Cusack?
MR CUSACK:	Thank you.
HIS HONOUR:	Now, if you agree with that, Mr Cusack, it

could be handed up to me and I could look at it.

MR CUSACK:  I have seen a similar document to this. Has

this been copied from that in full detail?

Mr Shirley, I think, might be able to give me an

assurance on that.

MR SHIRLEY: Yes, it has.

MR CUSACK:	If Mr Shirley assures me that it is a document which I have seen in another form before and on
which I made some corrections at the time and those corrections have been incorporated, I will accept
Mr Shirley's assurance on that point, Your Honour.

HIS HONOUR:  Can you give me a copy of it, Mr Hack?

MR HACK:  I will hand up this copy, Your Honour, yes. I am

sorry if I appear a bit slow about this particular

action but this is the first chapter I have been

involved in on this one, Your Honour.

HIS HONOUR:  Mr Cusack, what was the proceeding you proposed

to institute in respect of which you sought leave from Justice McHugh to issue writs of certiorari?

MR CUSACK: That was February 1989.

HIS HONOUR:  Yes, it is on page 2, No 12.

Cusack(3) 6 27/6/91

MR CUSACK:  My recollection, Your Honour, is that it was

against the action by the Bank having been rejected

by the full supreme court on appeal. There should

be some matter on that in my documents.

HIS HONOUR:	Now, do I take it that it was really directed to the Full Court's decision dismissing the appeal
from the refusal to grant a stay of execution? Was
that it?

MR CUSACK: In effect, yes, Your Honour, that certainly

is - the effect I was seeking all the way through

all of these actions was a stay; not to argue the
point even, just to stay the action of

dispossession in order that the points at issue

could be argued in a civil way and properly
resolved by formal legal process without
dispossession having to be the lever to institute

those proceedings.

HIS HONOUR:  Now, did His Honour deliver a judgment on that

application?

MR CUSACK: It is fair to say, Your Honour, that the

judgments that have been delivered against both Mr

Skyring and myself in all cases have hinged on this

same matter, this currency question. By the time

this question was raised before Mr McHugh an implication in relation to taxation had been published in the media at my instance which showed

that there was a legitimate tax minimization

process available through this anomaly in the
currency of the nation.

That matter has been extremely favourably received by the general public and a futile effort

at responding to my propositions by the Taxation

Commissioner is all that has developed. My

understanding from contacts I have is that there

are a substantial number of people taking advantage

of the anomalies in the Currency Act and will be

saving themselves substantial sums in taxation

assessments by that very simple device.

That issue was placed before Mr McHugh in

documentary form and has since been spoken about

publicly in many places and yet the Tax

Commissioner whose minions, I presume, would have

heard about it again by now, take no steps to deal
with that issue possibly because they now realize
that there are no steps they can take unless this

issue is addressed by this Court, as I am seeking.

HIS HONOUR:  Now, do I gather from what you say that the

grounds for the issue of this writ of certiorari

were the grounds that Mr Skyring had taken in the

litigation that he has brought in this Court?

Cusack(3) 7 27/6/91

MR CUSACK: Well, not precisely, Your Honour. The issue

which underlies the refusal of McHugh J was the

same but my argument against the Bank initially was

that if money had been borrowed, as they had

alleged, then I had the right to make the payment

in a manner of my choosing which was provided for

within the law, namely, constitutional gold coin of
which I have one here in case you have not yet seen

one.

This has become the substance of my

submissions in this application now and although I

have approached the currency question from a

different perspective than that of Mr Skyring the

hinge of the matter again is whether such things as

these funny pieces of coloured paper which the

Crown seeks to make available to us - two of these

yellow ones being equivalent to $100 - are or are

not equivalent to the yellow metal which I also

have with me here.

HIS HONOUR:	Yes.
MR CUSACK:	In my tourings of the countryside in recent

weeks and months, audiences of over 100 people have

looked astonished as I have taken a $100 note from

the floor of the meeting, spoken to the public

about the differences between the coin and the note

and then handed the note back to the person from

the floor who contributed it for discussion

purposes, thanking him for his contribution of the

$20. In fact what he was handing up to me was a

$100 note but by the actions of banks the supposed

value of the $100 note comes into direct conflict

with the coin when it is discovered that you can
only obtain a coin by paying $500 for a $100 coin,

both denominations being in Australian dollars.

This, Your Honour, I believe is where a

breakthrough exists for the currency question;

that there really is no malice involved in any of

these actions between either the Bank and myself or
Mr Skyring and the Taxation Commissioner.	I had

intended to open with the words of the Earl of

Portsmouth, which are quite an appealing way of

explaining that attitude. But the issue is quite a

simple observational phenomenon. It depends on no

special qualifications; it depends on a mere fact

that a person has eyes, is capable of seeing, can recognize the difference between a round piece of yellow metal and rectangular pieces of colour paper

and then is brought to a full stop when he is asked

to believe that both are the same, under our law,

and yet they are not the same, under a different

law. Laws which say that two things are, at the

same time, the same and not the same are impossible

Cusack(3) 27/6/91

to comprehend let alone to obey or execute in

reality.

My contention has been the nature of that

conflict, or the nature of that contradiction,

provides me with several things. It provides me

with an argument, at first instance, that what has

been involved between the Bank and myself must be

able to be settled by a constitutionally correct

process. If the law or, even worse, the actions of

the Bank making the claim against me itself,

interferes with my ability to adopt a

constitutionally correct manner of settling that

claim based on the oldest principles of contract

law and common law in terms of settlement of debts

by legal tender, then whether or not the Court

judges that this issue is important or not, the

option remains open to me to take the physical

manifestation of these two laws out into the public

arena and to simply make use of the conflict

which exists in physical reality; which course of

action I have already instituted by invitation of

interested members of the public.

And it seems to me that while there may be

difficulties for the legal profession in

understanding how to deal with this problem because

it touches so deeply the roots of economic life -

which is life, in all its aspects, every day for 24

hours - despite the possible embarrassment, even,

of the legal profession and the political
profession - if ''professiontt is the correct title

for that group - the matter is so uniquely

different from any that I have ever come across in

my experience as a professional engineer that I

will always retain the right to simply present the

physical manifestations of the contradiction to the

public and proceed to that higher judgment which

is, in fact, the judgment of the general public in

terms of what can be achieved for their own peace,

welfare and good government by adopting one of two alternatives which are made available by the Crown.

HIS HONOUR:  Now, Mr Cusack, I wanted to ask you this: one

of your complaints, as I understand it, is that you

presented to the Bank gold coin which was rejected

by the Bank.

MR CUSACK:  You have read the detailed submissions in the

documents, Your Honour.

HIS HONOUR:	Yes.
MR CUSACK:	In brief, there are now five incidents starting

on 25 February - that was one key incident. The

next three were of a type but the final one, again,

needs to be spoken of. In the first incident, on

Cusack(3) 9 27/6/91

25 February this year, this particular coin, in

fact, with I hold up, was deposited at a local

branch of the plaintiff Bank. It was accepted by

the teller and a record of that deposit is in the

statements of account which have been rendered

subsequently. The transaction took place at the

face value of the coin which is $100.

Immediately after that first transaction, the

teller, having exhibited some concern as to what she was going to do with this unusual and rather

beautiful coin, I suggested to her that she would

be at liberty to exchange it for a $100 note which

I had with me at the time. The teller agreed to do

so and did so and the $100 note was exchanged for

the coin. By those two transactions I retain the

coin here in my possession and have it here with me

today.

Now, those two transactions are possibly

historic, Your Honour. I would hope and pray, in a

way, that the teller who was involved in that

transaction feels no qualms if she has suffered any

retributive reaction by her employers. But,

subsequent to that, I tried to repeat that

performance on two occasions and the coin was

refused. Twice - no, I am sorry, it was only once

on its own and once when it was tendered in

conjunction with a paper note of $100 denomination

at the same time. When it was tendered with the

note the reaction of the Bank was that they could accept the note portion but they could not accept

the coin portion of the deposit. Unable to

convince them otherwise, at the time, the entire

deposit was refused.

The final transaction - I just cannot recall

the date now, it is in my documents.	What was the
final date?	I suppose I should refer you to my

petition documents, Your Honour, which details the

story.

HIS HONOUR:	I have read them.
MR CUSACK:	24 April 1991.
HIS HONOUR:	I just do not follow at the moment, Mr Cusack,

how it is that this argument of yours would lead to

a different result in the proceedings that were

brought against you by the Bank.

MR CUSACK:  Your Honour, the common law concept and contract

law precedents in relation to settlement of a debt

are very, very clear and very well settled, in my

submissions. Also, something which has occurred to

my mind in very recent days, of which I have not

yet spoken and of which I have prepared some

Cusack( 3) 10 CUSACK 27/6/91

submissions in writing for handing out to all

present, involve the fundamental philosophy of the

accounting system known as double entry in which

the Bank claims to be an expert - probably the

pre-eminent expert in the country since that

is their entire function to provide accounting

records of transactions and to maintain those

records in strict trust for the clients who deal

with them.

These two areas of common law, contract and

equity in accounting - three areas I
suppose - touch the very nature of what is called

credit, as it appears out of our banking system as

a new creation every time a so-called loan is made

by a bank and I believe provide absolutely

unshakable grounds on which this Court would find

itself quite stably set against all opposition in

determining that a bank mortgage of any type is an

invalid contract and cannot be enforced in any

court of law. The most telling argument in that

regard - the most telling evidence - is that no valuable consideration moves from a bank in the process of what is commonly called bank lending.

There are ample historical references to

quotations from such eminent people as governors of
the Bank of England, presidents of the United

States, governors of Canada, eminent economists and bankers, going back through probably the last

century and further, which indicate quite clearly

that banks have a special power, namely, that of

creating bookkeeping entries, which entries are

placed effectively into circulation in the

community as money.·

For nigh on 300 years now that power, I

submit, has been abused; perhaps not always

knowingly, perhaps sometimes in ignorance, which is

why I adopt the benign view of the plaintiff in

this case where it has proceeded against me. I

believe these arguments are so entirely new that

they are - well, some of the argument is not

entirely new - - -

HIS HONOUR:  But they are not really constitutional points,

are they?

MR CUSACK: Well, the constitutional point remains the same

constitutional point which Mr Skyring has sought to

raise on two separate occasions.

HIS HONOUR: Exactly, but these other points you are

referring to are contractual points; they are not

constitutional points.

Cusack(3) 11 27/6/91

MR CUSACK: There is an interpretation of the Constitution

required in relation to the public credit of the

Commonwealth, Your Honour, which is section Sl(iv),

I think it is - may I check that - for I believe

that the banks are, in fact, touching the public

credit of the Commonwealth - yes, it is

section Sl(iv). The connection between the

Constitution and my arguments appears at the head

of the Banking Act, immediately under the title on
the front page, where is described the purpose of
the Banking Act. It is said there - I do not have
it with me, but my recollection of the wording is
that the Act has been passed for the purposes of
protection of the currency and the public credit of

the Commonwealth.

That being the case, I believe the Banking

Act, although it may purport to have been passed pursuant to that section of the Constitution -

section Sl(iv) - and stating immediately below its title that it has a specific purpose of protecting

the public credit of the Commonwealth has, in fact,
done enormous damage to the public credit of the
Commonwealth. Unfortunately this will require

detailed discussion on exactly what is the

Commonwealth, what is the credit of the
Commonwealth and, more specifically, what is the

public credit of the Commonwealth and whether or

not it has, in fact, been tampered with by the

private banking system in ways which infringe rules

of equity which must apply to their accounting

process; whether that accounting process is
provably fraudulent and, if so, whether the fraud

is possibly criminal.

That argument would be effectively an

equitable determination as to whether the

accounting process is equitable. If, in equity,

the public credit of the Commonwealth is being

damaged by the private banking industry, as it is

presently operated.	Does this not also imply a
breach of trust by the elected authorities in so

allowing the banking system to operate; that

public trust being founded on the first clause of

section 51 which includes the words "for the peace,

welfare and good government of the Commonwealth"?

If the peace, welfare and good government of

the Commonwealth with respect to the public credit
of the Commonwealth is being disturbed by the
manner in which the Banking Act is being

interpreted and applied, then I believe there is a

serious breach of the constitutional duty of the

authorities under that section of the Constitution.

I do not, at this stage, propose to go into

the detailed provisions of the Banking Act which

Cusack(3) 12 27/6/91

enable the public credit of the Commonwealth to be

abused. I guess I merely need to say that, while a

power to pass laws for borrowing on the public

credit of the Commonwealth is stated in those words

of the Constitution, there is no implication in

that provision that borrowing must occur on the

public credit of the Commonwealth. In fact, the

rider - the supervening words in the first part of

section 51 which refer to these laws being for the

"peace, welfare and good government of the

Commonwealth", I will argue, on removal, that that

provision requires that borrowing on the public

credit of the Commonwealth ought properly not to

occur.

And there may well be very solid arguments for

a complete prohibition of borrowing on the public

credit of the Commonwealth implied in the wording,

"for the peace, welfare and good government of the

Commonwealth". I believe there is ample evidence

to demonstrate that borrowing on the public credit

of the Commonwealth, as it has occurred, has so
disturbed the peace, order and good government of
the nation that that is the only reasonable

interpretation and the only equitable

interpretation which can be placed on that

provision of the Constitution, that being the case.

HIS HONOUR:  You are asserting that it should be construed

as a prohibition against borrowing on the public

credit of the Commonwealth?

MR CUSACK:	I do not come prepared to give full documentary evidence of that argument this morning,
Your Honour, but I believe that is the argument
which ought to be put on removal of this issue.

HIS HONOUR: Yes, all right. Well, I think I understand

what the case involves.

MR CUSACK:  Now, that is the new issue which has not been

raised before.

HIS HONOUR:	Yes.
MR CUSACK:	But I must revert to Mr Skyring's argument - the

one you have referred to, yourself, in the previous

judgment concerning Justice Deane's judgment being

upheld and his second judgment in July 1988 being

upheld by the Full Court. I support Mr Skyring's

submissions in that matter, Your Honour. The

physical demonstration is, I believe, all that is

necessary to make all of those comments fall into

their proper perspective.

While nothing has been said which is legally incorrect in any of the judgments the implication

Cusack(3) 13 27/6/91

must be drawn, by upholding those judgments, that

the paper money I now hold in my right hand -

consisting of two $50 notes - is legal tender for

$100 in Australia and cannot be refused as a tender

of $100. Those same judgments do not properly

address why, in the real world, I cannot obtain a

$100 gold coin - also said by our laws to be legal

tender for $100 - in exchange for the paper money

claiming to be $100.

So long as that physical contradiction within

our banking system remains there is a mechanism by

which the absurdity can be turned against the Crown

to the detriment of Crown revenues in taxation.

That is now being done. I state again in public

and in the presence of this Court that I am doing

it and I challenge this Court to show me where I am

wrong. As Martin Luther says, "I am prepared to

admit I am wrong but will somebody please tell me

where I am wrong".

I do not believe that anyone will ever prove

to me that five is equal to one. If the law can be

made to say that five equals one then the words

have lost their meaning and the law has lost its

power to operate. Because, as engineering is
material construction, the law is verbal
construction and if the foundations of the verbal

construction are unsound then the verbal

construction will collapse on itself. I adopt the

engineering approach where the physical reality

must agree with the words. When it does not, I

stick with the physical reality and ask that the

words be reinterpreted or re-examined and

reconsidered.

So there are two legs to the constitutional basis of my action, Your Honour: one is the same

as Mr Skyring's and has been pronounced on already;

the second is that - well, now, in regard to the

second leg.	I have prepared quite a comprehensive
statement of my position on that; not specifically	from the constitutional point but from the point of
view of the common law and equity which I believe may be appropriate to consider at this level.

HIS HONOUR: Well, would you hand it in and I will look at

it~ Mr Cusack.

MR CUSACK:	I have copies, if - - -
HIS HONOUR:	Yes, now is there anything else you want to say

in support of this application?

MR CUSACK:  Something did occur to me just a moment ago,

Your Honour, but I will just need to recover the

thought; it has slipped out of my mind. I am

Cusack(3) 14 27/6/91

sorry, Your Honour, I am at a disadvantage in this

situation from the point of view of a layman. The

need to present a constitutional argument as a

layman is somewhat daunting.

HIS HONOUR:	I follow that.
MR CUSACK:	I just need to regather why I have presented

that to you and now connect it back to what I said

previously. What I am giving you in that

submission is argument not of a traditional legal

form but based on the simplest understanding of

what the equity principle in accounting is. If

agreement can be obtained on some such assessment

of the equity principle underlying double entry

bookkeeping and the implication of that and other

evidence which will be presented in detail on

removal concerning the absence of a valuable
consideration being given, then, upon foundations
of that type, it is possible to examine more

carefully the breach of the Constitution which has

occurred in two ways: not only in the specific

wording of the Banking Act but more particularly in

the manner in which it has been applied.

I think I need to call upon Your Honour's

intuitive senses here. I am unable to further

support, with specific information and evidence,
grounds on which the breach of the Constitution

exists within the Banking Act and/or its

application to private banking. I believe that

what I must insist upon this morning is that the

nature of the injustice which springs from this

breach is so widespread, so massive, so inequitable

and so patently easy to demonstrate that it will be

something of a dereliction of the duties of your

office, under the oath which you swear on your

appointment, to attempt to avoid addressing these

issues by denying the right of this issue to be

addressed.

It is not a right; an issue does not have a

right. I am trying to say that the issue itself

almost has rights in this matter; it deserves to

be heard. Not because I raise it; I am a mere

instrument or a catalyst of some kind, Your Honour.

Many influences have passed through me to bring me

to this point, not the least of which has been the

actions of a business partner which first induced

me to meet the Bank that I am now confronting, nor

the magical support which a good lady has given me

to sustain me through this.

This issue, Your Honour, will not go away. As

Mr Skyring has said in his own way, I say in my

way: no matter how the Court attempts to avoid

this issue, as it has been avoided on many, many

Cusack(3) 15 27/6/91

occasions previously when raised by either

Mr Skyring or myself, the issue will not go away.

Down through the ages the societies of all

civilized societies have called for a hearing of a

case which will eventually be titled "The people

versus the banks". It is the people on this side,

Your Honour, who ask that the High Court of

Australia adjudicate in the battle which I believe

must eventually be joined between the people on

this side and the banks on the other.

If the Attorneys-General at State and Federal

level are not prepared to intervene in this matter
on the side of the people, and I do not say against
the banks. I believe that is an antagonistic view;

I do not see the judicial process as necessarily

antagonistic in this matter. I believe that a

co-operative approach can be adopted but I believe

the issue must be addressed and the level at which

it ought properly to be addressed is the level of

the Attorneys-General of both the States and the

Commonwealth.

In a way, the second application which I made

would perhaps best be seen as an incentive to urge

the Attorney-General to reconsider the position he
took in the earlier matter today in that he has the
option of intervening in this matter on the side of
the people "against" - in quotes - the banks for

the benefit of both the people and the banks.

There is no intention in this matter - on my sight,

anyway - that banking be abolished or radically

disturbed or against the interests of the largest

portion of that industry.

A flaw in the machine which needs to be

corrected, I believe, is disclosed by this action.

The flaw is causing damage to society and the duty

of the Crown, upon proper evidence having been

presented to prove the damage being caused, is to

address the issue - at least address it formally

and properly in a court of law - taking the benign

view of the other side and simply dispassionately

gathering, examining and testing the evidence which

can be presented to support my case.

HIS HONOUR:  Yes. Now, Mr Cusack, I have heard you at some

length and I follow what you put in support of this

application. There is nothing to be gained by

repeating ideas that you have already expressed.

MR CUSACK:  I understand, Your Honour, and most of what I am

saying has either been said or is in the documents.

All right, well, in that case, I will hear what the other side have to say.

HIS HONOUR:  Mr Hack, do you want to say anything?

Cusack(3) 16 27/6/91

MR HACK:  Your Honour, all I wanted to say was that there is

considerable doubt, in my submission, as to whether

there is indeed a pending proceeding which can be

removed. If Your Honour looks at the chronology,

the action has effectively been ended; there is no

appeal pending. What there is is - - -

HIS HONOUR:	A petition.
MR HACK:	- - - what purports to be a petition under a rule

which has no application in a form not recognized

by the rules. So there is at least that doubt as

well. Those are the only matters that I wanted to

raise, Your Honour.

HIS HONOUR:	Mr Solicitor.
MR DAVIES:	Your Honour, our submission would be exactly the

same as in the previous matter.

HIS HONOUR:  Do you wish to say anything in response to what has fallen from Mr Hack and from the Solicitor?

MR CUSACK:  I am at a loss, Your Honour. I am not aware

that a rule of the supreme court, under which my

petition has been filed, is invalid or been

repealed. If that is the case I would seek the

leave of the supreme court in due course to place

that matter on a proper basis if such action be

necessary. I believe procedural errors in a case

like this ought not to even be raised let alone

seriously considered as an objection to the

propositions I have put.

HIS HONOUR:  Yes, thank you.

This is an application by Mr Cusack to have removed into this Court a petition pending in the

Supreme Court of Queensland in which he seeks the

setting aside of all judgments and orders made in

an action brought against him and his wife by the

Australia and New Zealand Banking Group Limited,

along with other relief. Whether that petition has

been correctly presented in accordance with the

Rules of the Supreme Court of Queensland is a

question which I do not stay to consider.

As far as I can make out, Mr Cusack had

borrowed money from the bank, repayment of the loan

and the payment of interest on the loan being

secured by a mortgage on certain land. The Bank

claimed that there was default under the mortgage

and, in consequence of that default, that Mr Cusack

owed the Bank the sum of $120,000 approximately.

The Bank, in the action, sought possession of the

land.	The Bank obtained summary judgment and
recovered possession of the land.	An. application

Cusack(3) 17 27/6/91

to stay execution was refused and an appeal to the Full Court of the Supreme Court of Queensland from

that refusal was dismissed.

Thereafter, in consequence of a direction

given by a Justice of this Court to the Registrar

that a writ be not issued by Mr Cusack out of the

Court without the leave of a Justice, Mr Cusack

sought leave to issue a writ of certiorari directed

to the Full Court of the Supreme Court of

Queensland in respect of the decision to which I

have just referred. That application was refused

by McHugh J.

Mr Cusack sought to raise, by that writ, the

argument he seeks to raise in the petition said to

be pending in the Supreme Court of Queensland.

That argument is, as Mr Cusack frankly concedes,

the currency question which Mr Skyring has raised

on so many occasions in this Court and which has

been rejected by this Court. In addition,

Mr Cusack seeks to raise what he describes as a

question of interpretation of section Sl(iv) of the

Constitution relating to borrowing on the public

credit of the Commonwealth. He contends that, on

its true construction, the Constitution prohibits

borrowing on the public credit of the

Commonwealth.The argument is plainly untenable.

Furthermore, I am unable to see how the

interpretation of section Sl(iv) is relevant to the

proceedings between the Bank and Mr Cusack. It

follows that the so-called constitutional questions

are without substance and that the application for

removal must be refused.

Yes, Mr Hack.

MR HACK:  I ask for costs of the application, Your Honour.

HIS HONOUR:  Yes.

MR DAVIES:  So do we, Your Honour.

HIS HONOUR: Yes. Yes, Mr Cusack.

MR CUSACK:  Your Honour, I draw your attention to the

cancelled receipt in the Registry of this Court

which immediately precedes the receipt which I

obtained when I paid $100 to appear here. The

number of that receipt is No AR739443. On that

document you will find the words "gold coin"

written in a place where it is provided that you

may cross out cheque or cash. I propose to you,

Your Honour, that Court adopts an improper attitude

in distinguishing, or attempting to distinguish,

between gold coin and cash money. Having done that

Cusack(3) 18 27/6/91

in relation to my payment of money to appear in

this Court, I make two submissions to you,

Your Honour.

Firstly, that the Court damages its reputation

by prejudging an issue which I have sought to have

judged properly on removal. By refusing to grant

that application for removal, this Court maintains

what I now state to be a biased attitude towards

the material evidence which has been the foundation

and basis of this argument from the beginning.

HIS HONOUR:	But now, Mr Cusack - - -
MR CUSACK:	And an order for costs - - -

HIS HONOUR:  Mr Cusack, just listen to me for a moment. I

am going to hear you if you want to present an argument that you should not be ordered to pay

costs but I am not going to hear you canvassing the

decision that I have given.

MR CUSACK:	Your Honour, this submission is directed to the costs application and my anticipating that you will
decide in favour of that application.

HIS HONOUR: Well, now, when you say you anticipate that,

that is the normal rule that applies in litigation

that costs follow the event.

MR CUSACK:  Your Honour, with respect - and this is becoming

harder and harder for me to say the longer this

issue remains unaddressed in this Court. With so

much respect as is due to this Court in the

circumstances, the manner in which the eye has been

blinded, the mind clouded by 300 years of

historical precedent will not - will not - make the

realities, which we seek to put before you, go

away.

HIS HONOUR: Well, let me tell you this, Mr Cusack.
MR CUSACK:	I am unable to - - -
HIS HONOUR:	Would you resume your seat, please.  This

application for removal is dismissed with costs.

The Court will now adjourn.

AT 11.51 AM THE MATTER WAS ADJOURNED SINE DIE

Cusack(3) 19 27/6/91