Cusack v Jones

[1993] HCATrans 184

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IN THE HIGH COURT OF AUSTRALIA

Registry No C20 of 1992

B e t w e e n -

PATRICK LEO CUSACK

Appellant

and

FRANK WILLIAM DUDLEY JONES

Respondent

BRENNAN ACJ
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Cusack(S) 1 1/7/93

AT BRISBANE ON WEDNESDAY, 1 JULY 1993, AT 2.08 PM

Copyright in the High Court of Australia

MR P.L. CUSACK: In person, Your Honour.

MR D.J. McGILL:  May it please, Your Honour, I appear for

the respondent. (instructed by the Australian

Government Solicitor)

MR CUSACK:  There is one piece of material I will refer to,

Your Honour. I have copies here, and I have

already given same to my opponent.

BRENNAN ACJ:	Thank you.
MR CUSACK:	I am not referring to that immediately,

Your Honour.	I will let you know when I get to
that.

My submission will be under, basically, three

headings. Your Honour, there will be legal

principles; there will be authority, and policy,

the terms I have only become aware of since reading
this Court's decision in the case referred to in

the previous matter in the judgment of

Justice Deane. I believe it is the correct way to

approach a matter such as this.

The authorities indicate very clearly several

things to me in my particular case. Firstly, there
is a substantive right of mine involved in access

to any court, particularly in a situation where the

subject of which I have attempted to litigate

involves property and I am in a situation now of

dispossession of my most valuable asset, my

matrimonial home, which I am attempting to recover

through the State Supreme Court.

This substantive right of appeal to this Court

must not be barred in my case in view of the nature of the matters which I am attempting to litigate in lower courts and in the course of which I have had

recourse to this Court.

In those circumstances, since there is a

substantive right and substantive litigation afoot

involving substantial property, in my case,

practically my entire property, the least onerous

interpretation of the rule of this Court must be

applied.

The second point I would make: the wording of the Order 63 rule 6, which has been applied

by Justice Toohey, clearly contains ambiguity in

its wording in so far as the Court has -

authorities generally have expressed difficulty in

coming to a firm definition of the words "vexatious

and oppressive", or "frivilous and vexatious" in

this case.

Cusack(S) 1/7/93

I understand the authorities to be fairly well

summarized by Roden J. in the case of

Attorney-General v Wentworth, (1988) 14 NSWLR 481.

I refer to the brief summary at the head of that

article on page 481 which sets out what he regards

as, and what I agree to be, a fair basis for -

assessment of whether the power that the Court has

under Order 63 rule 6 ought to be applied in my

case - ought to have been applied as it has been.

I admit, initially, that Justice Roden was

looking at a statutory provision in the Supreme

Court Act dealing with vexatious litigants in New South Wales but my reading of his judgment and of

other judgments from other jurisdictions even,

including overseas, indicates that it is a fair

summary of the principles on which vexation and

frivolity can be assessed.

The first point Justice Roden made is that

and the other is objective. there are two possible grounds: one is subjective

The relevant test for determining whether

proceedings are vexatious is - .

threefold. Firstly:

proceedings are vexatious if they are
instituted with the intention of annoying or

embarrassing the person against whom they are

brought.

I do not believe that has ever been suggested

in my case. In fact, I think it has even been

admitted on the record that I have not had any

intention of deliberately annoying or embarrassing

the high authorities whom I have asked to intervene

in my case.

The second relevant test, as Justice Roden

characterizes it, is that: 

they are brought for collateral purposes -

Classically examples of collateral purposes are found in the 1902 case of Jones where the man, apparently, admitted on the record that it was his

intention to force people to spend money in

defending the action against him. Another classic

case would be that of Solomon who was in breach,
apparently, of the Australian Securities Commission

regulations and had, in fact, published a textbook

on how to tie the authorities up with legal actions

in such a way that they could not proceed to the

substance of the matter that they were going to

litigate against him.

Cusack(S) 1/7/93

I accept those two possible valid grounds for declaring actions vexatious or frivilous. The

first is obviously vexatious in that he had a

deliberate intention to annoy. The second is

"collateral purposes" - is also obviously vexatious

if not frivolous. I would agree with those two

purposes as being objective bases on which vexation

can properly be found.	Neither of which apply in
my case.

The third test which Justice Roden provides is that the case is:

so obviously untenable or manifestly groundless as to be utterly hopeless.

He goes on in his judgment to say that:

"""If the first two tests fail, if it is

neither for the deliberate purpose of annoying

and harrasing with malice and so on and if it

is not for collateral purposes then the utter

hopelessness must be very clearly demonstrated

and the case must be completely untenable"""

It is clear in my case that it is the latter test

which has been applied. At least, from my

perspective, it is deemed that my attempts to

obtain relief in the supreme court, the

frustrations I have met there by upholding the view

I have put to courts about legal tender, by having

an appeal denied when the supeme court itself

refused to accept my legal tender in the form of gold coin, my attempt to obtain relief from that interference with my substantive rights in the

lower court, which is evidenced in the judgment of

Justice Byrne, which is unreported, of the - - -

BRENNAN ACJ:  Mr Cusack, I think the judgment of

Justice Toohey proceeded chiefly upon the

proceedings which you had instituted in the

High Court. Is that right?

MR CUSACK: Yes, Your Honour, and before I come to

Justice Byrne let me make the connection more

clear.

Of the actions in this Court which I have

conducted, one was a single action which never went any further. That was the action in relation to an

election process before Justice Spender. That

never went any further as far as I was concerned.

That action stopped at that point. All other

actions have been related to the attempts, now
successful, of the ANZ Banking Group to repossess
property under a bank mortgage in my case. Most of

my actions have been in the supreme court but in

cusack(S) 4 1/7/93

the very first hearing of my case in the supreme

court, the decision of Justice Deane was raised

against me as an authority.

My problem at the moment is that I need to

address very briefly the substance of some of the

submissions I have put in relation to

Justice Deane's argument to relate them to my substantial supreme court litigation, to indicate

why I believe there is more than a slightly

reasonable ground for the actions which I have

taken, and for the, what have been seen as

vexatious actions, to, as it is said, relitigate

Justice Deane's decision.

There are two reasons for all of this having

happened, Your Honour. First, I am a lay litigant,
unrepresented, unaided. In that situation I have not the expertise to research or understand legal

authorities the way professional lawyers do. I

have come to a much better understanding of what

legal authority means today, and I have,in fact,

gone to legal authorities to search for what I

believe to be the foundation for what is seen to be

an error in Justice Deane's decision.

DAWSON J:  Now that is the point, you want to contest

Justice Deane's decision.

MR CUSACK:  It has come up in my supreme court actions,

Your Honour, as a result of, and as I was about to say, a judgment which was given by Justice Byrne -

DAWSON J:  It may have come up there, but in this Court you want to contest it?

MR CUSACK: Yes.

DAWSON J:	It is not open to you to do so.
MR CUSACK:

And that is on the basis of an authority which

cannot be challenged. May I refer very briefly,

Your Honour, to two authorities which I believe do

throw some doubt on it. I will not be the

challenger in that case, it will be the authorities

themselves which do the challenging. This is a

very difficult point for me. My attention was

drawn to Quick and Garran as the source of the

meaning of the Constitution which has withstood the

test of time. My reading of it in relation to

section 115 disclosed a quite simple but very
significant error in the reading of the section as

Quick and Garran paraphrased it in their commentary. It is the transposition of a word,

"shall", for a word, "may". The word "shall" does

appear in the section of the Constitution, but

Cusack(S) 1/7/93

Quick and Garran's reading as they comment on it is

transformed into "may". That to me sent me

searching further for the source of that reading

error in Quick and Garran's book, which I must say I have not yet been able to lay hands on a copy of.

Every time I have been to the supreme court library

all copies of Quick and Garran have been off the
shelf. But I did, in this last week, obtain some of

the more detailed submissions of Quick and Garran

in photocopy form, and I discover that they refer

in great detail to the precedent American Legal

Tender cases. A reading of those Legal Tender

cases, the complete record of them, had been done

previously and I was most surprised to find

Quick and Garran's comments in relation to legal

tender containing a reference to the unreliability

of the US Legal Tender case precendent in view of

the way two judges were appointed who were known at
the time to favour a particular interpretation of

one form of money over another. That is being

simplistic about it.

I need to just put that on the side,

Your Honour. The basis of my doubt as to the

veracity of the conclusion being reached, is based

on a legal authority in the form of·

Quick and Garran's reading error, their comments on

the precedent which Quick and Garran refer to in the American Legal Tender cases which rang the death knell of gold money as legal tender in	legal tender in their annotated Constitution and on our Constitution in the form of our section 115,
the counterpart of article 1, section whatever it
is, in the American Constitution.
With that background of information about an unsound authority in the American precedent case
and with practical experience of attempting to use
what is, on judicial authority now, legal tender, and having raised a conflict in the supreme court which has interfered substantially with my rights and, in fact, prevented the filing of an appeal in
the court by the refusal of a legal tender, I cannot accept the proposition that the issue is
dead at this point.

BRENNAN ACJ:  That is the difficulty. You cannot accept

that, but this Court has·said that the issue is

dead.

MR CUSACK:  And the consequence, Your Honour, is that I have

been denied an appeal in the supreme court by the

refusal of legal tender according to the

Constitution. I may be wrong, I am prepared to

admit that. I am prepared to admit that

Cusack(S) 6 1/7/93

Justice Deane may be right, but at this moment

BRENNAN ACJ:	Once we get to the stage of coming to the conclusion that Justice Deane was right, then we
have got to consider all your several applications
to this Court in the light of that fact, and the
question then is, given that Justice Deane was
right and that you were wrong and yet you have
continued to bring proceedings in this Court
asserting that you were right, is that not
asserting something repeatedly which has no foundation?

MR CUSACK:  It certainly is frequent, Your Honour. I could

make further submissions on the nit-picking aspects

of the meaning of the words in the order.	I do
not believe that is necessary.	I do not believe I

am frivilous at that level. The argument clearly

is the substance of my case, the utter hopelessness

of my case.

BRENNAN ACJ: Yes.

MR CUSACK:	In the sense that there are authorities on the record - and I cite four Justices of the
Supreme Court of America in 1870, who upheld what I
propose and when the decision was reversed under
extremely dubious circumstances of a reconfiguation of the Bench, not only defended their previous opinion but stated in their opinion that the case
was far from settled, but rather that the rehearing
of it had unsettled the matter to the point where
justice was now seen to depend on who you had
appointed to the Bench.
DAWSON J:	Mr Cusack, it has b~en decided against you by

Mr Justice Wilson applying the decision of

Mr Justice Deane.

MR CUSACK:  Very well, Your Honour. Let me go back to my

notes. The authority is Ormerod LJ. I accept the

Court's authority to use the remedy which they

resort to. I believe I had made submissions to you

in relation to ambiguity and the substantive right, the least onerous interpretation - and in so far as

ambiguity is involved in the terminology, I believe

it is just to look at the purpose of the rule.

There is authority for that in the cases that were

cited in my list of authorities and I do not have

the facility to find them now, but looking to -

yes, that is why I handed this up to you.	The
purpose can be looked at where there is

uncertainty. In fact, that point comes through in

this.

BRENNAN ACJ: What do you say the purpose is?

Cusack(S) 7 1/7/93

MR CUSACK:  I refer you to the original vexatious mechanism,

the foundation of the Chaffer's case in England

where - I think it may even have been Lord Halsbury

who is speaking in the House on the introduction of

the bill under which he was - yes, it was

Lord Halsbury at page 54 of that article which I have handed up. This is the final paragraph and

about the fifth last line.

The object sought to be secured by the Board

was that there be some protection if the

person is sued -

and the protection is clearly sought against cost

element and inconvenience.	On the top of the
following page:

People who succeed against vexatious litigants

often succeed at a loss to themselves.

Now, the purpose of the Act is clearly brought about by the very vexatious issue in the public arena at the moment, namely, the cost of justice; the cost of having to defend oneself or to bring

actions. Cost of justice, Your Honour, is the

vexatious issue, as identified by Lord Halsbury:

The protection of the person sued -

this same point reoccurs throughout the

authorities, that:

there is an element of harassment for the

purpose of inflicting costs on the opposing

party. I have even heard it said, "so sue me

and I will drag you through the courts until

you are broke " .

Those sort of statements are not uncommon and they

stem from the fact that justice costs, or at least

the access to the justice system costs; whether

justice costs depends on what the justice system

does once you get inside.

BRENNAN ACJ:  Mr Cusack, we understand your argument that it

is neither of the first two categories to which

Justice Roden referred, which affects your case.

MR CUSACK:	Which includes the element of costs as I see it.
BRENNAN ACJ:	It is the third element and that is the

repetitious commencement of proceedings which are

manifestly untenable.

MR CUSACK:  I see, yes. One thing was said by Your Honour

on the left was that Justice Deane's decision is

Cusack(S) 1/7/93

adverse against me. There are facts which are
adverse against -

BRENNAN ACJ:  No, what was put to you was that

Justice Wilson's decision - - -

MR CUSACK: Upholding Justice Deane's decision.

BRENNAN ACJ:  - - - which proceeded on the basis of

Justice Deane's decision was adverse to you.

MR CUSACK:  Was adverse, and that matter never proceeded any

further, Your Honour; that matter never proceeded

any further.

BRENNAN ACJ:  Now, given the conclusiveness of that

decision, all your subsequent proceedings have been

brought in order to challenge the self-same matter?

MR CUSACK:  No, my purpose is not to challenge that matter,

Your Honour, my purpose is to enforce my property

rights against a financier, who I have accused, in

my initial statement of claim, of fraud. Part of

my substantive action in the Supreme Court of

Queensland has been struck out on the basis that

Justice Deane's decision is conclusive against me.

Now, in the matter of the lending of money in

a form other than legal tender, the legal tender

question has an important bearing. It is not
directly the legal tender question which I have

been seeking to address. In fact, I am at the

point in my life where I am ready to drop that

issue because I believe it is, to some extent, a

red herring now. My argument is against the

creation of credit and the lending of it at

interest by banking institutions, and that argument

must eventually be reac'hed. My belief in taking

the actions which I did in this Court was that the

legal tender question was a very direct and concise

way of exposing the more difficult arguments in the

bigger question in relation to banking, which is

Supreme Court of Queensland. the case that I am having difficulty with in the In that vein, if the issue of legal tender is,

in fact, decisively decided and if I accept that

decision, then I must alter my argument and the
only argument I can now put is that section 115 of

the Constitution is frivilous and vexatious to me

because it has interfered with my rights in the

supreme court in relation to the use of legal

tender. I have attempted to use what the

Constitution provides as legal tender, what the

Currency Act says is legal tender, and the Supreme

Court in Queensland has not recognized it.

Cusack(S) 9 1/7/93

Now, in that sense, the section of the

Constitution is vexatious to me. Perhaps my

activities in future will be directed to bringing

on the republican debate with a view to having that

section of the Constitution excised, since it is

possible also to adopt the view that legal tender

is, in fact, the problem; it is, in fact, bankers'

money, the goldsmiths' money of the 1600s. And the

whole purpose of legal tender Acts is really the

signature of the banking system on our legal

system. That argument has not yet been advanced,

but that may be the way I am being pointed by this

Court.

I have followed the directions of this Court

in relation to my actions and I have sought to have

this matter raised in the supreme court, as I think

it was Your Honour directed from the hearing in

Canberra. I raised the issue there - at least the

Court of Appeal - - -

BRENNAN ACJ:  I do not think we need to worry about the

supreme court proceedings, Mr Cusack.

MR CUSACK:  No, I was going to mention two phrases they

used, Your Honour: they were phrases "ipse dixit"

and "non sequitur". They were not persuaded either

that there was any error in Justice Deane's

decision.

BRENNAN ACJ:	Yes.
MR CUSACK:	That being the case, I have no option but to

accept the Court's decision and in view of an

undertaking that I do accept that decision, I would

ask that the order be removed and that that issue

not be litigated further.

BRENNAN ACJ:  Yes, Mr Cusack. We need not trouble you,

Mr McGill.

No argument has been raised which justifies

disturbing the order made by Toohey J. that the

appellant should not, without the leave of the

Court or a Justice, begin any action, appeal or

other proceeding in the Court.	The appeal is
dismissed.

MR McGILL:  Your Honour, I would ask for costs.

BRENNAN ACJ: Anything to say about the application for

costs, Mr Cusack.

Cusack(S) 10 1/7/93

MR CUSACK:  I can say nothing, Your Honour, because I am

barred from saying what I wish to say and I believe

that that is an injustice in itself.

BRENNAN ACJ: Yes. Very well, the appeal is dismissed with

costs.

AT 2.34 PM THE MATTER WAS ADJOURNED SINE DIE

Cusack(S) 11 1/7/93