Dart & Ors v Norwich Union Life Australia Ltd

[2003] HCATrans 782

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B19 of 2002

B e t w e e n -

SYDNEY RONALD DART

First Applicant

SHIRLEY NORMA DART

Second Applicant

FREDERICK WILLIAM DART

Third Applicant

and

NORWICH UNION LIFE AUSTRALIA LIMITED

First Respondent

VYNOTAS PTY LTD

Second Respondent

JONES LANG LASALLE (QLD) PTY LIMITED

Third Respondent

ROBERTS NEHMER McKEE (FORMERLY ROBERTS LEU NORTH) (A FIRM)

Fourth Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 12.48 PM

Copyright in the High Court of Australia

__________________

MR S.R. DART appeared in person.

CALLINAN J:   Yes, Mr Dart.

MR DART:   I am the first applicant and I seek leave to speak on my own behalf and to speak on behalf of my wife, and my son who appears with me.

CALLINAN J:   Yes, Mr Dart.  Yes, you have that leave, Mr Dart.

MR DART:   Thank you, your Honour.

MR A.J. MOON:   If it please the Court, I appear for both the first and second respondents.  (instructed by Connolly Suthers)

MR B.T. PORTER:   If it please the Court, I appear on behalf of the third and fourth respondents.  (instructed by Flower & Hart and Bryan Bartley & Associates)

CALLINAN J:   Yes, Mr Dart.

MR DART:   Your Honour, I filed with the Court supplementary documents that I intend to refer to.  If I can, firstly, lead the Court to page 17 of those supplementary documents, which is an order to Auscript for a transcript of the proceedings that were before Justice Spender on 20 November 2000.  We never ordered a transcript of those proceedings until 6 September 2001.

If I may now lead the Court to pages 18 through to 22, it will be seen that Justice Spender actually gave instructions to counsel for the respondents in our absence on the morning of 20 November, before we arrived at court, and he gave them instructions as to how he intended to handle the matter.

There was also many words and phrases missing from the transcript that we recalled from the hearing and we found from November 2002, by a schedule of errata supplied to us by Auscript Pty Ltd that, in fact, there were 39 errors in that transcript, 39 errors and omissions.  They are displayed, your Honour, from page 52 onwards.

It is our contention that the Full Bench of the court below, who relied on that transcript, were misled by the errors.  We can see if we go to page 50 of our supplementary submissions, from line 13, as amended from the errata, that Mr Moon, appearing for the first and second respondents here today, he actually conceded that a claim lay against his clients providing an agreement could be made out on 22 September 1997 with our family.

At page 46 from line 27 through to page 47 at line 6, and again at page 48 line 4, we specifically brought to the attention of Justice Spender an affidavit, which is displayed at page 57, sworn by the centre manager on 23 November 1998 that swears to a collateral agreement entered into with the Darts and not our company, yet 280 days after that hearing on 4 September 2001, Justice Spender, misled by a flawed transcript, never applied the law to the evidence and dismissed our action.  Later, the Full Bench was also misled by a flawed transcript.

In our submission, the primary judge improperly, and somewhat injudiciously, instructed counsel for the respondents in our absence on the morning of 20 November, and then was misled by a flawed transcript.

CALLINAN J:   Mr Dart, I do not want to interrupt you, but what you have to demonstrate, among other things, is an error on the part of the judges who constituted the Full Court.  You have to show that there is an error in the judgment of the Full Court.  Now, can you demonstrate that?

MR DART:   It is the same error made by the Full Bench, your Honour, as made by the primary judge.  Both the Full Bench and the primary judge were misled by a flawed transcript and they did not apply the law to the evidence.

CALLINAN J:   Can you indicate to us where I find that error in the judgment of the Full Court?  Can you give me a reference to that, please? 

MR DART:   Well, your Honour, counsel for the respondents ‑ ‑ ‑

CALLINAN J:   We can go back from there, Mr Dart, but I think that is your starting point.

MR DART:   Yes.  Counsel for the respondents have misled both the primary judge and the Full Bench to believe that there was a legally enforceable lease with our company.  In fact ‑ ‑ ‑

CALLINAN J:   Can you take me to where the Full Court relies upon what you say is the misleading provision or statement?  Where do I find these?

MR DART:   I have not prepared my case along those lines, your Honour.  I have prepared my case along the errors that arose from the transcript and the errors that arose from the misunderstanding of the law.

CALLINAN J:   It will not help you unless you first point to the basis upon which you say – or you point, rather, to the error in the judgment of the Full Court which shows reliance upon the matters that you say the court should not have relied on.  You have to do that, first of all, by reference to the Full Court judgment.

MR DART:   In basis, your Honour, the Full Court judgment found that there was no transfer of tenancy rights to us as natural persons and, in fact, before the court was a document, which appears at page 15 of our supplementary documents, and this is a letter, your Honour, that was written by our company, Mystic Crystals Franchises (Australia) Pty Ltd ‑ ‑ ‑

CALLINAN J:   Mr Dart, was this letter in evidence before the primary judge?

MR DART:   Yes, it was, your Honour, absolutely.

CALLINAN J:   All right, thank you.

MR DART:   And it indicates:

The company seeks approval from the landlord, for the proprietors of the retail business “Mystic Crystals” – 

that is myself, my wife and my son, as natural persons, to assume all responsibilities for the lease.  At that stage, there was no lease.  There was only an agreement to lease and that agreement to lease had been enticed by false representations.  At page 16 we show a statement, bank statement, where we paid that first payment of rent on 13 March 1995, and we continued to pay the rent, as natural persons, until 1998.

In our submission, your Honour, it was unconscionable of the Full Bench and the primary judge not to recognise an overarching principle that created a contract of tenancy and as such we were the tenants who were adversely affected by deceit, and it was unconscionable of the Full Bench and the primary judge not to recognise our rights to recover our losses.

If we then move, your Honour, to document number 14, page 14, we have a memorandum from Willows Shoppingtown management to its tenants admitting that on 18 November 1994 they inserted a new door‑counting mechanism, and this new door‑counting mechanism was rather cleverly contrived through a computer to multiply everything coming in and out of the shopping centre by 1.3.

In other words, everything that walks into the shopping centre, or a box that is carried into the shopping centre or pushed into the shopping centre, any object passing through the door gets multiplied by a factor of 1.3, and any object passing out of the shopping centre got multiplied by a factor of 1.3.  It created false statistics that they supplied to the tenants, indicating that the representations they had made to entice people into those leases were accurate when, in fact, there was in excess of a 30 per cent error at all times, and the representations were entirely false.

If we then move, your Honour, to page 56 of our documents, you will find press releases which came out around about 24 October 1997.  Three years after they had introduced this wonderful door‑counting system they admitted that they had been multiplying the door count for three years.  They admitted to misleading and deceptive conduct, yet the respondents’ counsel had continuously claimed that all we relied upon were simple errors.  In fact, Mr Moon has said that to the primary judge and the Full Bench, that we were relying on simple errors in the door count.  They were not simple errors, your Honour, they were dedicated procedural computerised falsification.

In our submission, it was unconscionable, again, of the Bench not to recognise that and to recognise a need to rationalise the law to deter people from using computers as a tool of deceit, and they did exactly that.  They used the computer as a tool of deceit, and there is no law to cover that, your Honour.  The law needs to be rationalised.  Business operations today operate mainly on computerised information.  Transactions rely on computers, yet the avenue is open for computers to be used as tools of deceit and this is exactly what was done.  We were deceived.  We were enticed into entering that shopping centre.  We were deceived for three years by false representations, false statistics and we have now been denied the right to recover our losses.

The Full Bench, misled by a flawed transcript and misled by the respondents who have always claimed that we only relied on simple errors and that there was a legal lease ‑ they have misled the court.  They misled the Full Bench, they misled the primary judge.  They knew that we had been paying the rent since 1995 as natural persons.  They always knew that, yet they misled the Queensland courts.  Then before the Full Bench, and the primary judge in the Federal Court, when we proceeded as natural persons, they find that actions in the Queensland courts, which were in the name of our company, were actually opportunities that we had been given to plead.  We had not.  Our company had pleaded.

We pleaded our action twice in the Federal Court, once in accordance with – if you will excuse me for a moment – once in accordance with the rules of the court and once in accordance with an order made by Justice Spender on 19 September 2000.  It was then pleaded before the Full Bench that the finding of Justice Spender was correct because we had disobeyed Justice Spender’s order of 19 September, in that we had pleaded the matters that had occurred prior to 22 September 1997.

If we go to page 10 of our documentation, we will find that that is the actual order of Justice Spender that was handed down on 19 September 2000.  It simply says:

The applicants have leave to replead by filing a further amended statement of claim within 21 days of today.

There was no limitation to our pleading, yet it was put to the court that because we had submitted the new evidence that we were, in fact, natural persons and we were, in fact, the natural person tenants and that there could never have been a legally enforceable lease with our company.  It was pleaded to the court by the respondents that we had breached the order of Justice Spender, claiming that we were not supposed to plead anything prior to 22 September 1997.  Yet, in fact, the order that was delivered to us had no limitation, so again, they deceived the court.

It was because of the way the respondents had misled the courts that the Full Bench and the primary judge both erred and dismissed our action, and we again have been denied the right to recover our losses as natural persons, and that, your Honour, is the fact of the matter.

There is much more that I believe was covered in our application book, except for one other point.  If I may take you to the application book, at page 100, commencing at paragraph 33, I have detailed 12 important events that the first and second respondents’ counsel did not include in their chronology of events, 12 events, including the fact that we had taken over the payment of the rent and we were paying rent as natural persons, including the fact that they had introduced this fabulous counting system on the doors, including the fact that they had admitted publicly to the fact three years later, and these very important chronological events were not included in the documentation filed before this Court, your Honour.

In my submission, it is just another attempt to mislead the Court, and this time it is an attempt to mislead the High Court of Australia and for those reasons, your Honour, I submit that our application ought to be granted.  To deny the application would, in fact, or at least imply, to condone the unlawful conduct that has occurred.

There are important issues of law and principle, your Honour, that need to be addressed.  If I may refer to the transcript of proceedings that were before this Court on 22 June 2000 when Justice McHugh – if you will bear with me for a moment while I find this, I have got mixed up here - yes, 22 June 2000, your Honour, and that transcript of the proceedings before this honourable Court on that day starts at page 1 of our supplementary documentation, where Justice McHugh said, at page 6:

You may well be right; the judgments should not have been made against you – 

At page 7:

that gives rise to actions of tort, trespass to property, trespass to goods.  They are common law actions.  You can even get punitive damages.

Also at page 7:

You may have other remedies in terms of tortious actions, personal actions, but at the moment you are using the vehicle of the company – 

At page 9:

there may well be . . . very important issues of law and principle standing behind the appeal – 

and also at page 9:

Notwithstanding the very powerful arguments . . . about the justice of the case, the Court has no option but to refuse special leave – 

Your Honours, I respectfully submit, that on this occasion the honourable Court ought to have no option but to grant special leave.  There are serious issues of law and principle that need to be addressed.  There are serious issues of administration to be addressed.

The fourth respondent full well know that they have falsified the door statistics for three years and publicly admitting that they have falsified the door statistics for three years, issuing press releases to that effect. The fourth respondent then commenced action against our company under section 459E(1) of Corporations Law, yet if the law is applied to…..they had no legal lease, they had no right of action under Corporations Law, and in instituting action against us under 495E(1) the fourth respondent was contravening Corporations Law.

Section 459E(1), as your Honours are well and truly aware, I am sure, says a debt must be due and payable. There could be no debt. It was impossible for there to be a debt against our company, yet they commenced action – the fourth respondent commenced action, pursued action, under that premise, right through the Queensland courts and continued to purport to pursue that in the Federal Court, full knowing that we had been deceived for three years – four years, by falsified statistics; that we had been enticed into entering an agreement to lease which, by law, is void. It was enticed by false representations, and if that agreement, the lease was void, then a legal lease could not grow out of that.

During August 1995, when we did, in fact, sign the lease document, we were being deceived by computerised false representations.  Therefore, that document signed during August 1995 could not, under any circumstances, create a legally enforceable lease.

Those are the submissions that I have put to your Honours, that the courts have been deceived and misled from day one, and the Federal Court, the primary judge and the Full Bench were deceived to believe there was a legal lease when there was not.  They were deceived to believe that we were not the tenants.

CALLINAN J:   Your time is up, Mr Dart.

MR DART:   I am sorry, your Honour, thank you.

CALLINAN J:   This is an application for special leave to appeal from a decision of the Full Court of the Federal Court affirming an order for the dismissal of an action by the Federal Court at first instance.

No error of principle on the part of either the primary judge or the Full Court of the Federal Court has been demonstrated.  There are no reasonable prospects of success of any appeal if an application for special leave were granted.  Accordingly, the application is dismissed.

Do you ask for costs?

MR MOON:   I apply for costs, your Honour.

CALLINAN J:   Yes, dismissed with costs.  Thank you.

AT 1.11 PM THE MATTER WAS CONCLUDED