Gao v Zhang

[2004] HCATrans 360

[2004] HCATrans 360

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

Summons for directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 SEPTEMBER 2004, AT 9.30 AM

Copyright in the High Court of Australia

MR P.Y. GAO appeared in person. 

HIS HONOUR:   Now, you have made an application that the book you have filed should be the book to be used on your special leave applications, is that right? 

MR GAO:   Yes. 

HIS HONOUR:   That book contains about 100 pages of documents that are not on the settled index, is that right? 

MR GAO:   I have made a second index to the ‑ ‑ ‑

HIS HONOUR:   I am sorry, Mr Gao, you will have to speak up. 

MR GAO:   I had made an index for this appeal book.  I faxed the new one to the Registrar. 

HIS HONOUR:   Yes, she settled the index.  Just listen to me, Mr Gao.  She settled the index and this book contains more than the index permitted, is that right? 

MR GAO:   Yes, but ‑ ‑ ‑

HIS HONOUR:   Why are the extra documents relevant? 

MR GAO:   Your Honour, that is not extra document.  Your Honour, you have a book? 

HIS HONOUR:   Yes. 

MR GAO:   The book – the index for application No M156, page 3 index. 

HIS HONOUR:   Yes. 

MR GAO:   The item 15, item 16, item 17 and item 18 – those four items had been filed to the court below ‑ ‑ ‑

HIS HONOUR:   Yes, they had. 

MR GAO:   ‑ ‑ ‑ before my summons issued for adding party, amend the writ, because those four applications is the ground before I took the summons for – two summons…..was item 19. 

HIS HONOUR:   Why are documents 15, 16, 17 and 18 relevant to the applications for special leave? 

MR GAO:   My summons for – item 19 my summons is for…..amending writ under…..identify defendant.  This item 15 is my affidavit in support of my writ was filed to the proceeding on 24 May 2001.  In that affidavit, I gave all grounds, because I had 14 exhibits to support my writ.  I only take No 2, No 3, No 4, No 6 for this leave application book, because I think those four exhibits are probably important to support my case.  Also, affidavit filed on 24 May 2001, item 15, this is an affidavit I gave all ground – the background of that story. 

HIS HONOUR:   Just listen to me.  Why are the documents 15, 16, 17 or 18 relevant to your applications for special leave? 

MR GAO:   Your Honour, my…..is I want add charges under amending writ, that is my – but that application has been refused by a court below.  But now I have to appeal some ground for reason why I am going to…..our amending writ.  …..were detailed.  Affidavit had been filed in support of summons, filed in support of item 19, which summons I took out.  Your Honour ‑ ‑ ‑

HIS HONOUR:   Just a moment.  Item 19, which was the summons to, as you say, add charges and amend your writ, had an affidavit, which is item 20. 

MR GAO:   Item 20 – your Honour, that is not good enough, because I know this affidavit, because when I filed the actual summons, I was – I suppose the court below should have read my affidavit filed 24 May, which it should have been reading my affidavit of 15, which item 15, which this affidavit is, I suppose, only just dealing with this matter, the issue already raised.  And also, item 16 is why I am seeking some other – I gave you some more information for this application.  Item 17 is in later, in the County Court of Appeal, I had a new cause of action, because Bank of Melbourne and the Hong Kong Bank jointly produces false evidence. 

Item 17, which I filed to the Court of Appeal, was on 10 January 2002, which in this affidavit would support my application, which a new cause of action was…..after my writ filed in 2001, 24 May.  Because at the beginning I wanted to amend it in my writ, which reason I am going to add a party, but now a new cause of action would establish that in 22/10/2001 because unless item 17 – this item 17, I had problems with some evidence in the item 17, for exhibit, which produces a false cheque produced by the Bank of Melbourne and Hong Kong Bank. 

Even, your Honour, even without item 17 and item 15 and item 16, I have not much reason – I did not give a ground to support my case and say I am going to add a party, the Bank of Melbourne and Hong Kong Bank and others, because I did not give a ground.  If you check with my affidavit, I only have affidavit item 21 – no, item 20, your Honour, I filed that because I have no representation in that part.  I filed that…..which I know.  I did not…..detail anything, because I just supposed the court below should be reading item 15, item 16 and item 17, which give some grounds for support of my application and ‑ ‑ ‑

HIS HONOUR:   Now, just a moment, Mr Gao.  Your affidavit of 5 June 2002 at page 186, item 20. 

MR GAO:   Page 186. 

HIS HONOUR:   That is the affidavit, is it, that you – just listen to me, will you, Mr Gao.  That is the affidavit which you filed for your appeal or for your application to Master King, is that right? 

MR GAO:   That is the affidavit I filed before Master King. 

HIS HONOUR:   Yes.  Where in that affidavit do you refer to any of the matters that are mentioned between pages 76 and 184? 

MR GAO:   Your Honour, actually in that affidavit – now I think I forgot.  I should have mentioned this in the first paragraph, No 1 paragraph, because later affidavit I have experienced – I would have emphasised a judge or a Master should be ‑ ‑ ‑

HIS HONOUR:   Mr Gao, I asked you a question.  If you have difficulty understanding, tell me.  My question is, where in your affidavit which starts at page 186 do you refer to any of the documents that are between pages 76 and 184? 

MR GAO:   Your Honour, I did not mention the Master, so the…..to my previous affidavit, but, your Honour, did you know my application, this application, this proceeding – your Honour, this proceeding had been established on 24 May 2001.  In the first hearing…..and later I appealed.  I ‑ ‑ ‑

HIS HONOUR:   Yes, and you succeeded in that appeal and that is no longer a question. 

MR GAO:   No, no, your Honour, what I am trying to say, I appealed, but there is no further action has been taken in that proceeding.  During the appeal I produced evidence, items, which was item 17 – which was item 17.  Your Honour, if you look at this application book page 8, paragraph 23. 

HIS HONOUR:   Yes. 

MR GAO:   During the appeal, I would mention to the justice – paragraph 23.  During the appeal I am forbidden……I am going to amend the writ…..

HIS HONOUR:   Yes, I understand that. 

MR GAO:   But, your Honour, what is happening, I am going to amend my writ, but I need to produce – all my applications had been filed, because after this application, after that hearing, I have no application had been taken, because it was struck out.  I appealed.  After the appeal, there is no application, and my first application was a summons, item 19.  If that summons had been taken out, why I am going to amend my writ, why I am going to adding party.  Your Honour, I do not have to – actually, in my opinion, now I should mention the court below should have read items 15, 16, 17, but I do not have to, because I am going to amend my writ on the summons……because I just have two affidavits that were filed.  Affidavit, the 15 one, item – that is 16.  Those two affidavits should be read by the Master or judges in the court below, before deciding my application.  Also, I file another affidavit, that is item 17, which I am going to amend it in my writ.  Your Honour, that is the ground. 

HIS HONOUR:   Yes. 

MR GAO:   Your Honour, I have another problem with ‑ ‑ ‑

HIS HONOUR:   Mr Gao, at the moment all I want to know is, why are items 15, 16, 17 and 18 relevant to the applications for special leave?  Is there anything more you want to say about that? 

MR GAO:   Your Honour, I have already mentioned, this application gave a ground for why – your Honour, I gave a ground for application, for support of my application for adding charges and amending the writ.  Your Honour, just for affidavit item 19, that is not good enough ‑ ‑ ‑

HIS HONOUR:   I am not asking about item 19, Mr Gao; I am asking you about items 15, 16, 17 and 18.  I will ask you one more time.  Why are they relevant to your applications for special leave?  Is there anything you want to tell me to show why they are relevant to the applications for special leave? 

MR GAO:   Your Honour, okay.  Can we look at affidavit from exhibit – your Honour, can we look at affidavit exhibit, page 85? 

HIS HONOUR:   What page? 

MR GAO:   Page 85. 

HIS HONOUR:   Yes. 

MR GAO:   For exhibit.  Your Honour, this exhibit with the Commonwealth Bank later confirm we are going to withdraw money from bank.  The copy of the title had been…..and page 88, which is exhibit 3, which is for my term deposit, our Bank Bill, in the past.  That is my support.  Page ‑ ‑ ‑

HIS HONOUR:   Yes, I have read the documents, Mr Gao.  Why are they relevant?  Why are they important for your applications for special leave? 

MR GAO:   Your Honour, if I did not, there is no exhibit before this Court now,  Did you know whether I take out the money in cash from Commonwealth Bank…..defendant.  Can you confirm this?  This is the evidence now, in here.  I got a further exhibit.  If you can confirm – because I needed new evidence to the court below, or to the judges who are dealing with this matter.  What happened now – …..defendant – this in the page 90. 

Your Honour, if you are just reading a document which you have, item 19, can you confirm there is such evidence?  If you can confirm, say, okay, …..the defendant take money from Commonwealth Bank.  Your Honour, I have a further – your Honour, if you look at item 17, page 174 ‑ ‑ ‑

HIS HONOUR:   Yes. 

MR GAO:   Your Honour, sorry, 177.  The gentleman has a name called Frank Camilleri ‑ ‑ ‑

HIS HONOUR:   Camilleri, yes. 

MR GAO:   This gentleman is a Commonwealth Bank officer, previously, because he has left now.  This evidence – the gentleman produces the subpoena for production to the County Court.  He confirmed me and a lady.  He describes the lady and ‑ ‑ ‑

HIS HONOUR:   Yes, I have read the documents, Mr Gao.  Yes, is there anything more you wish to tell me about why they are relevant? 

MR GAO:   Your Honour, that is relevant, because I needed new evidence.  Also, your Honour, as I mentioned, at page 177 I had a photograph, is colour, a photograph – …..in this page.  The photograph and…..because I did not produce now – I cannot produce that here because…..half a book of page.  This description thing, this paragraph.  Your Honour, also I need produce item 17, exhibit B, exhibit A.  Exhibit B from 111 to 134.  Your Honour, I ‑ ‑ ‑

HIS HONOUR:   Just a moment.  Pages 111 to 134 is, in fact, exhibit A.  Yes.

MR GAO:   Yes.  Your Honour, I would mention why I wish to produce this evidence before the Court.  If you see page 115, after subpoena for production produce…..Bank of Melbourne.  First response from Bank of Melbourne is “There is no…..term deposit of some money under the defendant’s name”.  They told me defendant – there is no connection with the Bank.  The defendant does not know this.  After I received this fax then, I made a phone call and inquired to the Bank of Melbourne.  I put it in writing – the writing you can see 117 and also 118, what I have put in writing to Westpac – now is Bank of Melbourne and is Westpac – 119, I put it in writing, asked to produce the information because I think – I know the money had been deposited in Bank of Melbourne. 

The Bank of Melbourne does not simply produce the production.  If you see 120, privacy…..should be on 22/10/2001 – 120.  And the Bank of Melbourne, the lady called Marisa, produced written document, because the first time they call me there is no production.  At that stage, the Bank of Melbourne produced a document to the County Court.  To the County Court, but they did not…..this production to the court and they bring this production back to the Bank, because this production caused a problem, your Honour.  It is not I make a false statement against Bank of Melbourne. 

Later, Bank of Melbourne, we ask the production again.  If you see page 121, this production would come up.  Page 121, this lady, defendant had not registered with the Bank, which is the date in my affidavit which I filed on 24 May, which I am going to mention, item 15.  I mention in my affidavit, item 15, was this lady on 30 November 1999 had come to Bank with me, deposited money.  That is the relationship with the Bank.  And later, this…..Probably we do not have time to go further for this detail, but later this evidence was not correct.  I do not think, your Honour, I gave a false statement to support my case against both Bank, produced false evidence.  I do not have such a capability to do that. 

Your Honour, I have put your attention to the item 135 – sorry, page 135.  Page 135 – your Honour, perhaps you look at 138.  Page 135 is only the copy of my subpoena for production.  If you will read 138, that subpoena had not produced – also, Hong Kong Bank say there is no term deposit of our money deposited in defendant’s name – page 138.  Because I come in with defendant and deposit money in Bank of Hong Kong, which is a bank cheque from Bank of Melbourne.  So, your Honour, if you are reading page 139, which I…..to come to the Hong Kong Bank, the customer relation, again, because that is both banks.  First correspondence tells me there is no term deposit in the defendant’s name.  I had…..139 to 141.  That is the first letter.  The second letter I put in writing at 142, which I…..Bank to produce. 

Then, your Honour, if you see page 144, the Hong Kong Bank has responded, but he told me the term deposit is not date which I put in my affidavit filed on 24 May 2001.  This affidavit was item 15.  They first responded, which I mentioned – the Hong Kong Bank say defendant had no term deposit, no money deposited in the Bank.  Later, they say, okay, after I put in writing to come to the customer relations, they told me there is a term deposit, but the term deposit day was different from my affidavit which I filed in item 15.  They told me it was different.  Later, I have a few questions to ask the Hong Kong Bank to produce evidence, which I believe is false, your Honour.  But that is why we need to go further.  We needed much more detail to reveal why the evidence was false. 

HIS HONOUR:   Mr Gao, the affidavit you filed in support of your application for leave to amend is the affidavit at page 186, is that right? 

MR GAO:   Page 186. 

HIS HONOUR:   Is that right? 

MR GAO:   Yes. 

HIS HONOUR:   At page 190, at line 15, there is reference to the exhibits A, B and C for the affidavit of 10 January 2002. 

MR GAO:   Yes. 

HIS HONOUR:   Are those ‑ ‑ ‑

MR GAO:   Your Honour ‑ ‑ ‑

HIS HONOUR:   Just a moment, Mr Gao, wait.  Are those items 17.1, 17.2 and 17.3? 

MR GAO:   Yes.  Your Honour ‑ ‑ ‑

HIS HONOUR:   Just a moment, Mr Gao.  You will wait.  Page 189, at line 5, refers to exhibit 10 for the affidavit filed on 24 May ‑ ‑ ‑

MR GAO:   Sorry, your Honour, which line did you mention? 

HIS HONOUR:   Page 189, line 5 ‑ ‑ ‑

MR GAO:   Okay. 

HIS HONOUR:   ‑ ‑ ‑ refers to exhibit 10; line 18 refers to exhibit 6.  Is that right? 

MR GAO:   Yes.  Your Honour, sorry.  In the beginning ‑ ‑ ‑

HIS HONOUR:   Mr Gao, just be quiet and listen to me.  You have now been a litigant in the Supreme Court on several occasions, is that right? 

MR GAO:   Yes. 

HIS HONOUR:   On each occasion that you have appeared in the Supreme Court, the judges have said that – and this is no criticism of you – they have said that they have had great difficulty communicating with you, have they not? 

MR GAO:   Your Honour ‑ ‑ ‑

HIS HONOUR:   The answer is yes. 

MR GAO:   Your Honour, I do not think that is exactly the reason.  If you want me to deal further ‑ ‑ ‑

HIS HONOUR:   Mr Gao, as it stands, you have occupied a great deal of time of the Registry, you have occupied a great deal of my time, leaving me ultimately to point to the material that is contained in your application book that might provide some support for your application.  The work of this Court, the work of other courts, does not permit spending very great periods of time looking after litigants who will not look after their own affairs. 

I have considered the application you have made.  The application book you have filed may stand as the joint application book in these applications.  The costs of this application are costs which, whatever the outcome, are costs which you will bear.  The order I will make is that the application book filed in each matter on 4 August 2004 stand as the joint application book in matters M155 and M156 of 2002.  The costs of this application are in any event to be borne by the applicant.  There is, I believe, no other order that you require.  Is there any application you make? 

MR GAO:   Your Honour, may I mention – may I ask or inquire something, whether the costs – I pay all the costs – what does that mean?  I pay all the costs? 

HIS HONOUR:   It means that whether you win or lose your application for special leave, the costs of coming here today are costs that will fall on you in any event.  The application is unnecessary.  It is unnecessary because of the manner in which you have presented your application.  You have the order you want; the costs of it will fall upon you whatever the outcome of the application.  The orders are as I have announced. 

MR GAO:   Your Honour, this application, when you are talking about costs, which means – are only for costs of today or for all costs ‑ ‑ ‑

HIS HONOUR:   No, the costs of today. 

MR GAO:   Okay. 

HIS HONOUR:   Adjourn the Court. 

AT 10.05 AM THE MATTERS WERE CONCLUDED