Gao v Zhang

[2004] HCATrans 563

[2004] HCATrans 563

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M155 and M156 of 2002

B e t w e e n -

PENG YUAN GAO

Applicant

and

YAN ZHANG

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 11.41 AM

Copyright in the High Court of Australia

MR P.Y. GAO appeared in person.

HAYNE J:   I hold a certificate from the Deputy Registrar that she has been informed by Clayton Utz, solicitors for the second respondent, that the second respondent will submit to any order of the Court save as to costs in these matters.  Yes, Mr Gao.

MR GAO:   Your Honour, I got two application.

HAYNE J:   Yes, Mr Gao.

MR GAO:   There are two appeal, two leave to appeal with the lawyer, 2002 September.  One, 155, probably out of time.  In this application I…..the solicitor, John O’Brien

HAYNE J:   Mr Gao, you and I have had this discussion before, but let me make it clear again.  I see from the papers below that the Court of Appeal has also suggested to you that you should take the benefit of using an interpreter.  You and I have had this discussion before about you using an interpreter.  Are you content, are you willing to proceed today without an interpreter?

MR GAO:   Yes, your Honours.

HAYNE J:   Yes, very well.  Go on.

MR GAO:   Your Honours, did you read additional material?

HAYNE J:   We have the additional material, Mr Gao, yes.

MR GAO:   Yes, and page 248.

HAYNE J:   Yes.

MR GAO:   In the appeal I ‑ ‑ ‑

HAYNE J:   Just a moment, Mr Gao.  We have to have this transcribed, so get your papers and come back to the middle and then we can get you transcribed.  Yes, go on.

MR GAO:   In the appeal – I think M155, about the conduct of solicitor, John O’Brien, at the time Court of Appeal heard this case I have not got a professional…..from the job where I…..music conduct.  Page 248 on the bottom of the paragraph I read this quote out:

The General Manager of Professional Standards to whom this matter was referred has determined that the legal practitioner’s actions constituted unsatisfactory conduct and has decided to caution the practitioner for his actions.

So in this appeal – in this leave to appeal before the court below, was that John O’Brien has an authorisation to act for the proceeding, but he accepted the document from defendant’s solicitor.  After she received the document and she passed the document to me, she tell me that, “I never act for this proceeding”.  In this proceeding, your Honour, …..either the professional rule, John O’Brien should never serve any document on my behalf because he has no authorise to act for this proceeding.

The job where I had the music conduct…..now, in this proceeding I was awarded for costs by court below, because in this proceeding, your Honour, did you see the – I think page – in the book, page 8 I think, page 8.

HAYNE J:   It may be more efficient for you, Mr Gao, to go past it and go on to your next point.

MR GAO:   Your Honour, I am going to say wherever the – the summons…..for item 155 and I was awarded for cost, but this summon – with all of John O’Brien’s action shall not be issued because in the Court of Appeal the reason for judgment they gave on 13 February 2002 has mentioned it.  I am going to amend my statement of claim.  I am now…..because that statement of claim I was already told…..February.  I am now going to…..this……Also, I am going to amend my writ.  John O’Brien correctly viewed both party in the hearing, but they already were aware that say I am going – now rely on  the statement of claim.  …..judgment, your Honour, so I could not…..in the book.  I think at paragraph 22.  I do not know.  Yes, your Honour, page 8 paragraph 23.

HAYNE J:   Yes.

MR GAO:   Paragraph 23, I think in the paragraph the Court of Appeal say:

Mr Gao has mentioned the possibility, too, that he might wish to mend his hand by amending the writ or the statement of claim and I suppose that on the material so far filed there is even the possibility that he might wish to add a party.

Because that judgment – this judgment, when judgment was given…..know that causation for issue summons to strike out my statement of claim so not be crazy if without it John O’Brien was…..a document.  The document your Honours are – did you read it?

HAYNE J:   You go on, Mr Gao.

MR GAO:   If you read it…..but the document just given less than 24 hour…..to John O’Brien, for John O’Brien advised me if I am not going to amend the statement of claim they will issue summon, but John O’Brien did not do it.  Your Honour, now about this point…..so if…..had not authorise to act this proceeding any document that will save the best for later shall not be reserved by court.  This summons should be – the draft should be dismissed.  I should now award……for costs.  If no costs are against me probably – but now with costs, your Honour, you can see additional material, 267 and 269.  That costs – that is a letter from Clayton Utz.  I was awarded for costs from…..summon but I have not got a job, I could not pay.  That letter was dated 18 November 2002.  They want it struck out.  They wanted that proceeding be permanently stayed.

Page 269 was a letter dated 18 May 2004, which…..They want to want to make another application once again for proceeding be stayed.  Your Honours, this proceeding now back to issue…..156.  That proceeding having been issued in 2001 in June.  The proceeding – the defendant had no appearance – had no defence and failed to record.  The formal judge, Justice Beach, just simply struck out proceeding.  You may say today we are not…..but I would imagine.  That is struck out.  It was…..even intentionally.

Even…..the appeal successful in the Court of Appeal, but I still awarded for costs, your Honours, because I produce some evidence to the Court of Appeal – Court of Appeal award costs for this appeal.  In these proceedings, your Honours, I appeared in the…..court.  I mentioned the police - your Honours, the tape recording was 30 seconds ‑ ‑ ‑

HAYNE J:   Yes we understand you – just a moment, Mr Gao.

MR GAO:   Only 30 ‑ ‑ ‑

HAYNE J:   Just a moment, Mr Gao.  We understand you have a tape recording.  We will not permit you to play the tape‑recording in Court.  Go on with any further oral submission you wish to make.

MR GAO:   All right, your Honours.  Did you read additional material for defence from page 151?

HAYNE J:   Mr Gao, this is an opportunity for you to present any argument.

MR GAO:   Yes.  Your Honours ‑ ‑ ‑

HAYNE J:   Mr Gao, you will be silent while I speak.  Do you understand me?  This is an opportunity for you to present your oral argument.  It is not an opportunity for you to question us.  Go on.

MR GAO:   Your Honours, I am sorry.  I will just say if you read the defendant’s defence from 251, additional material, to 255, about five page, if you see the material for – you can see that I produce it to court below, to the Court of Appeal.  Now I produce it…..in the application book.  The…..exhibit in page - your Honour, from page – I think from page 85.  That is a letter, your Honour – the top…..but without the…..the page 86.  That is account where I withdraw money from Commonwealth Bank.

If you see page 88 that is some bank bill – I had it before.  If you see page 90, page 90 was the day we were have – we draw the cash – we draw the money with the defendant and your Honour, if you will see page 94, page 94 the statement in the middle of complaint, the defendant say I take a lot of money from her, more than $60,000, and that is why I try to tape record.  Tape recorder from…..police, or Carlton CIU.  At the beginning, about 30 second beginning…..say, “Today we are going to, dealing with the property, the sale by deception”, talking about me.  In the later tape‑recorder the…..$125,000.  Now, $125,000.  If you see the document, I produce it to the court below…..police have document, produce it to the County Court.  The document from…..police told County Court now to make a copy for me, and I got another copy, another production copy.

That is the document that I have already in my affidavit.  I have put it in my affidavit, your Honours.  Let me see the affidavit.  The affidavit, you see page 108, paragraph 14.  Paragraph 14…..I produce it to the Court of Appeal.  The document I reading in the County Court about this – a police – a defendant that complained to the police how much I take from her – in the page 109 on the top.  Now, in fact - take such money – this money – this figure, 109, proved $250,000, your Honours.  In the County Court the hearing about this case, defendant – I asked the County Court judge, “I’m going to tape-recording myself.”  Judge, he say, “You don’t need a tape.  I tape it for you.”  He tape it for me.  After the hearing I want to get a copy; he refused.  Under this…..document later I am going to subpoena for production from the County Court, but that subpoena for production has not been…..just refused.  Does not want me issue that.  …..Master…..Master…..does not mention, but that…..one production.  I am going to produce a police document to the Supreme Court.

Your Honours,…..mentioned on page 251 and 255 is the defence.  Did you – this document if you read it you can see defendant have not any complaint…..I take any money, or steal any money from her.  This, your Honour – you can see the document – I show you defendant make a lot

of complaints, say I take too much money, but you see the defence in the Court of Appeal, in the below – in the Supreme Court have no mention any - I take any money from her.  Your Honours, before – item 156 I got a hearing, I…..put additional party.  This application before I had a subpoena for production.  I got three.  That subpoena for production in the page 156, your Honours.

HAYNE J:   Your time has expired, Mr Gao. 

In neither of these applications does the applicant raise any arguable ground of error in the decisions against which he seeks special leave to appeal.  Special leave to appeal is therefore refused.

AT 12.02 PM THE MATTER WAS CONCLUDED