Gary Leonard Collis v Bank of Queensland Limited (ABN 32 009 656 740) & Ors (according to the attached Schedule)
[2021] VSCA 17
•12 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0076
S EAPCI 2020 0010
| GARY LEONARD COLLIS | Applicant |
| v | |
| BANK OF QUEENSLAND LIMITED (ABN 32 009 656 740) & ORS (according to the attached Schedule) | Respondents |
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| JUDGES: | TATE, SIFRIS JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 November 2020 |
| DATE OF JUDGMENT: | 12 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 17 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2062 (Judge Cosgrave); Collis v Bank of Queensland Ltd (Supreme Court of Victoria, Irving JR, 7 October 2019) |
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BANKING AND FINANCE – Financial accommodation provided to applicant and others – Default by borrowers and mortgagor – Failure to pay following demands – No arguable defence to claims by the bank – Summary judgment granted against applicant for possession of property and monetary sum.
APPEAL – Application for leave to appeal from order for possession and monetary sum – Grounds of appeal fundamentally misconceived and failed to engage with any of the issues in the decision the subject of the application for leave to appeal – Leave to appeal refused.
PRACTICE AND PROCEDURE – Leave to appeal – Application to extend time within which to file application for leave to appeal – Application dismissed by judicial registrar – No reasonable explanation for length of delay – Grounds of appeal lack merit – Application for leave to appeal decision of judicial registrar – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | In person | |
| For the First Respondent | Mr M Biviano | Thomson Geer |
| No appearances for the Second to Fifth Respondents |
TATE JA
SIFRIS JA
MACAULAY AJA:
Introduction
On 12 December 2019, Judge Cosgrave of the County Court granted summary judgment in favour of the Bank of Queensland Ltd (the ‘First Respondent’) against Gary Leonard Collis (the ‘Applicant’) for $1,112,423.71 together with interest in the sum of $154,825.[1] The Applicant’s liability arose out of a personal home loan and guarantees executed by the Applicant as security for loans provided to companies in which the Applicant has an interest. Orders were also made against the companies and the Applicant’s wife, Lesley Ann Collis (the ‘Fourth Respondent’) as more fully set out below. An order was also made against the Applicant and the Fourth Respondent for possession of the family home.
[1]Bank of Queensland Ltd v GL & LA Collis Pty Ltd [2019] VCC 2062 (‘Reasons’).
Only the Applicant seeks leave to appeal against the summary judgment. For reasons that are not clear, the Applicant has joined the companies and his wife as respondents to the application. The Applicant is self-represented. The Applicant was self-represented on the hearing of the application for summary judgment. The Fourth Respondent was also self-represented. An application by the Applicant for leave to represent the companies was dismissed by Judge Woodward. An application for an extension of time within which to appeal from Judge Woodward’s decision was refused by Irving JR on the papers on 7 October 2019.[2] In a separate application, the Applicant seeks leave to appeal from Irving JR’s decision. The applications for leave to appeal from the summary judgment and for leave to appeal Irving JR’s refusal to extend time were both heard together and are dealt with in this judgment. These reasons predominantly concern the application for leave to appeal from the summary judgment. The application for leave to appeal against the refusal to extend time is dealt with at the end of this judgment.
[2]Collis v Bank of Queensland Ltd (Supreme Court of Victoria, Irving JR, 7 October 2019) (‘Irving JR Reasons’).
The Applicant seeks leave to appeal from the summary judgment of Judge Cosgrave on 20 grounds, which are set out in the application for leave to appeal, as follows:
1.Jurisdictional error — Orders made in excess of the prescribed Jurisdiction;
2. Lack of continuation of evidence;
3.Apparent Non-Compliance of the court with the Constitution of the Commonwealth of Australia;
4.Validity of the Court to operate under the Crown;
5.Opinion Rule — orders made based on opinion;
6.Defective and fraudulent originating tort;[3]
[3]This ground was abandoned during the hearing of the application.
7.Council for the First Respondent acting as a lawyer while not qualified;
8.Human rights denied contrary to international law;
9.Procedural fairness and natural justice denied;
10.First Respondent brought forward new claims for which rebuttal and evidence were denied;
11.Lack of evidence supplied by the First Respondent;
12.Bias Rule — Conflict of interest;
13.Validity of the Corporations Act 2001 (Cth) by which the First Respondent as a person which can sue or be sued;
14.Failure of the court to consider relevant evidence;
15.Denial of fair trial of four of the defendants not permitted to be represented;
16.Orders based on void mortgage contracts;
17.Instruments to discharge the alleged debt not proved to be invalid;
18.The First Respondent's presumed power of attorney is not according to law;
19.Fraud of non-disclosure of securitization and sale to a third party; and
20.Void orders.
For the reasons that follow, leave to appeal the summary judgment is refused in relation to each ground. As may be observed, some of the grounds, especially those that challenge the validity of Commonwealth legislation or the foundations of the Court, appear on their face to confront insuperable difficulties. Some of the grounds were not advanced at the hearing of the summary judgment application.
The Court directed the Court’s Self-Represented Litigants Coordinator to lodge a request with the Victorian Bar Pro Bono Assistance Scheme for legal assistance to be given to the Applicant in respect of the application for leave to appeal against the orders of Judge Cosgrave and the orders of Irving JR. It is most unfortunate and to be regretted that the Applicant did not avail himself of the pro bono representation offered by the Victorian Bar. It is unlikely that counsel would have pursued most of the proposed grounds. For the most part the arguments were not related to the issues in the case. Most of the documentation was likewise not of any relevance.
In relation to the documentation filed by the Applicant, Judge Cosgrave commented as follows:
Before attempting to grapple with the material submitted by Collis, I wish to make some general observations about that material.
If the hallmarks of good writing are that the text is clear, concise, and comprehensive, then the material filed and relied upon by Collis does not satisfy those criteria. Indeed, much of the documentation is incomprehensible, including, as it does, references to and material about: the relationship between, and the source of authority as between, Collis and his wife as stated in the King James Bible; alleged breaches of the Charter of Human Rights and Responsibilities Act 2006 (Vic); the invalidity of the Corporations Act 2001 (Cth); the invalidity of the Rules; the conflict of interest faced by the County Court of Victoria in circumstances where it was separated from the court system established by State Parliament due to the creation of Court Services Victoria and/or its association with, or ownership by, foreign financial corporations who are said to be shareholders in BOQ and Liberty Group, the latter of which owns the court building; and the unsuccessful attempt to find a solicitor who had taken the oath of allegiance allegedly required by section 88 of the Imperial Acts Application Act 1922 (Vic).
Collis does not display a disciplined mind or a keen sense of relevance. A number of the documents filed, whether they were purportedly affidavits or submissions, comprised plentiful and repeated assertions and references to matters which were not obviously relevant, frequently not explained, and appeared designed to obscure rather than illuminate. From one perspective, it seemed a fraught task to try and deal with the defendants’ material in a way which assumed, wrongly, that it represented an intelligible and coherent defence to the BOQ’s application.
The more direct approach is to regard the vast bulk of the defendants’ material as legal nonsense. However, while the direct approach is both attractive and probably justified in the circumstances, I shall nonetheless attempt to make sense of the defendants’ case. In doing this, I shall endeavour to address the points made as best as I can understand them.[4]
[4]Reasons [70]–[73].
The First Respondent’s case was not challenged. Neither at the hearing of the summary judgment application, nor before us, did the Applicant in any relevant or meaningful way challenge or dispute the loans, the mortgages, the default, the enforcement of the mortgages, the demands or the amount owing. The First Respondent, having established each element by cogent evidence, succeeded in having summary judgment granted against the Applicant and the Fourth Respondent. Default judgment was entered against each of the corporate defendants, the Applicant having failed in his application to represent the corporate defendants.
The issues raised by the Applicant both before Judge Cosgrave and before us, have nothing to do with the transactions between the parties. Rather, they relate to the jurisdiction of the court, the validity of legislation, procedural fairness, securitisation, promissory notes and other matters not related to or relevant to the claims. The Applicant has filed substantial documentation relating to these issues. He also sought to rely on further documentation right up until the morning of the hearing of the application for leave to appeal. The First Respondent objected to this material on the ground of irrelevance and other grounds. We allowed the Applicant to refer to the material. None of the material is of any assistance to the Applicant and no formal ruling is necessary.
Relevant factual and procedural background
Since 24 June 1997, the Applicant and the Fourth Respondent have been the registered proprietors of the property at 60–80 Hamilton Highway, Fyansford in the State of Victoria (‘the Fyansford Property’).
On 11 December 2000, G L & L A Collis Pty Ltd (‘Collis Pty Ltd’), the Second Respondent, was incorporated. The Applicant and the Fourth Respondent are directors and shareholders of Collis Pty Ltd. Also on 11 December 2000, Asia Pacific Trade Pty Ltd (‘APT’), the Fifth Respondent, was incorporated. The Applicant is the sole director and shareholder of APT.
On about 8 February 2006, the First Respondent registered a mortgage over the Fyansford Property to secure a principal sum of $650,000 and such future sums as it may advance from time to time.
On 29 April 2013, Fyansford Pty Ltd (‘Fyansford’), the Third Respondent, was incorporated. The Applicant is the sole director and shareholder of Fyansford.
On about 25 July 2013, the Applicant and the Fourth Respondent entered into a variable home loan package of $801,233.80 (‘Home Loan’). The purpose of the Home Loan was to refinance an existing loan. It was secured by a mortgage over the Fyansford Property (‘the Fyansford mortgage’).
On about 28 August 2013, Collis Pty Ltd entered into a facility agreement with the First Respondent (‘business loan’) under which it borrowed $350,000 to purchase property at 17–21 Seaford Street, North Shore (‘North Shore Property’). The business loan was secured by:
(a) a guarantee and indemnity provided by the Applicant and the Fourth Respondent; and
(b) a guarantee and indemnity provided by Fyansford in its own capacity and as trustee of the Collis Superannuation Fund, together with a mortgage over the North Shore Property (‘North Shore Mortgage’).
Since 13 September 2013, Fyansford has been the registered proprietor of the North Shore Property. On the same day, Fyansford registered a mortgage over the property in favour of the First Respondent as security for the business loan made to Collis Pty Ltd. Fyansford guaranteed the obligations of Collis Pty Ltd under the loan.
From about 24 July 2018, the Applicant and the Fourth Respondent were in default under the Home Loan by failing to repay the minimum month repayments.
On about 24 July 2018, the First Respondent’s lawyers sent a combined notice of default/notice of demand to the Applicant and the Fourth Respondent at the Fyansford Property, their last known address, informing them that they were in default under the said loan and had accumulated arrears of $47,511.90.
On the same day, the First Respondent sent a notice of default/notice of demand to Collis Pty Ltd informing it that it was in default under the business loan and demanding payment of $17,178.15. Also on that day, the First Respondent’s lawyers sent a combined unregulated notice of default and notice of demand on guarantor and demand under s 76 of the Transfer of Land Act 1958, both to Fyansford at its registered office and to the Applicant and the Fourth Respondent.
On 1 November 2018, John Lindholm (‘Lindholm’) and Samantha Taylor (‘Taylor’) of Ferrier Hodgson were appointed as agents for the First Respondent over Fyansford.
On 6 December 2018, the Applicant commenced proceedings in the County Court seeking:
(c) payment of debts owned by Collis Pty Ltd and Fyansford in the amount of $297,249.07;
(d) payment of debts owed by the Applicant and the Fourth Respondent in the amount of $1,112,423.71;
(e) an order for possession of the North Shore Property; and
(f) an order for possession of the Fyansford Property.
On 21 December 2018, the Applicant filed a notice of appearance on behalf of himself and the other defendants. On 11 January 2019, the Fourth Respondent filed a notice of appearance on her own behalf.
On 6 February 2019, the Applicant served on the First Respondent’s solicitors the defendants’ defence. On the same day, the Applicant attempted to file at court a defence on behalf of himself and the other defendants. The defence was not accepted for filing and the Applicant was advised by the Court he would need to seek leave from the Court to represent the defendant companies and his wife.
On 6 February 2019, the Applicant filed an affidavit. The affidavit appeared to be in relation to an application for leave for the Applicant to appear on behalf of the defendant companies. The affidavit exhibited a number of documents, one of which was a defence to the plaintiff’s claim dated 30 January 2019 and another an ASIC company extract for Fyansford. The defence exhibited did not comply with the Rules of the Court regarding pleadings. The company extract of Fyansford listed the status of the company as ‘externally administered’.
As at 30 April 2019:
(g) none of the Applicant, the Fourth Respondent, Collis Pty Ltd or Fyansford had paid the First Respondent any money pursuant to the demands made;
(h) the Applicant and the Fourth Respondent remained in default under the home loan and the Fyansford mortgage. Further, they failed to comply with the combined notice and guarantor demand;
(i) Collis Pty Ltd remained in default of the business loan and failed to comply with the borrower demand issued to it; and
(j) Fyansford remained in default of the guarantee and the North Shore mortgage and failed to comply with the guarantor demand issued to it.
Due to the defective nature of the Applicant’s affidavit filed 6 February 2019, Burchell JR made orders on 7 February 2019, directing the Applicant to file by 21 February 2019 further affidavits in support of his application to appear on behalf of the corporate defendants, and stating that no step could be taken by these defendants unless by solicitor pursuant to r 1.17 of the County Court Civil Procedure Rules 2018.
Burchell JR also made an order on the same date staying the proceeding against Fyansford pursuant to s 440D of the Corporations Act 2001 (Cth)(‘Act’).
The Applicant failed to file any further affidavits in compliance with Burchell JR’s orders. At a directions hearing on 18 March 2019, Burchell JR made orders that:
(k) by 4:00pm on 8 April 2019, the defendants file and serve an amended defence and any counterclaim; and
(l) pursuant to r 1.17 of the County Court Civil Procedure Rules 2018, Collis Pty Ltd, Fyansford and APT not take any steps in this proceeding save by a solicitor, pending any application made by the first, second and fifth defendants to obtain leave to appear other than by a solicitor. Any such application was to be made by email to the Commercial Division Registry by 4:00pm on 8 April 2019, and to be supported by affidavit material as set out in paragraphs 1 and 2 of the orders of 7 February 2019, and to be made returnable at the directions hearing on 22 May 2019.
By a document headed ‘Notice of Attendance [Defence]’ dated 6 April 2019, the Applicant filed what purported to be an answer to the plaintiff’s claim. This document was filed by the Applicant and his wife both on behalf of themselves and, purportedly, the corporate defendants, despite not having leave from the court to do so.
On 18 April 2019, Lindholm and Taylor retired as agents for the First Respondent over Fyansford.
On 1 May 2019, the First Respondent filed a summons and supporting affidavit sworn by Anthony Raviola on 30 April 2019, seeking summary judgment. The First Respondent served the summons and affidavit on the defendants by email and post on 1 May 2019. Later, the First Respondent filed and served further affidavits by Anthony Raviola sworn 17 May and 18 June 2019.
On 17 May 2019, Tran JR dismissed the Applicant’s application for leave to appear on behalf of Collis Pty Ltd, Fyansford, the Fourth Respondent and APT.
On 7 June 2019, Judge Woodward dismissed the Applicant’s application for review of Tran JR’s decision.
The summary judgment application was scheduled to be heard on 21 May 2019. However, it was adjourned to 18 June 2019 and then again until 18 July at the request of the defendants. The application was adjourned again to 8 August 2019.
By an affidavit sworn on 8 August 2019, the Applicant sought to put before the Court various documents, including an ‘affidavit of defence’ by Salvatore Marotta, an excerpt from a court book prepared for a matter in the Supreme Court of Victoria by Lander & Rogers solicitors, and a Birth Certificate Content Review document prepared by the New South Wales Registry of Births, Deaths, and Marriages.
On 8 August 2019, the First Respondent’s application for summary judgment was heard. At the hearing, the Applicant sought to adduce further material not already before the Court on behalf of the defendants. In an effort to try and to put some limit on the considerable time and money spent on the application, the judge made the following orders:
1.By noon on 12 August 2019, the defendants are to file and serve any further affidavit material upon which they rely. Such affidavit is to be no more than 2 pages in length, exclusive of exhibits.
2. By 4:00pm on 16 August 2019, the defendants are to file and serve written submissions in opposition to the application for summary judgment, such submissions to be no longer than 10 pages.
3.By 4:00pm on 23 August 2019, the plaintiff is to file and serve any written submissions in reply. Such submissions to be no more than 4 pages.
4.Reserve liberty to the parties to apply by email to the Commercial Division Registry ([email protected]) for further directions upon giving reasonable notice to all other parties.
5.The defendants pay the plaintiff’s costs thrown away by reason of the failure to proceed with the application today, such costs to be taxed on an indemnity basis in default of agreement.
On 12 August 2019, the Applicant sought to put further documents before the Court. The categories of documents were as follows:
GLC 1: FOI, letters to Federal Attorney General and replies re: entrenched law, constitution access
GLC 2: Public notice letter from Westpac Bank re: Mortgage securitisation disclosure
GLC 3: Enduring Power of Attorney for Lesley Ann COLLIS
GLC 4: Fact sheet- Parliamentary Education Office (Cth) re: Making a Law
GLC 5: Birth certificates of (A) Gary Collis, and (B) Lesley Collis
GLC 6: Landata entry North Shore property
GLC 7: Landata entry Fyansford property
GLC 8: Criminal investigation documents
GLC 9: Document set as sent to Bank of Queensland, and subsequently returned several months later, consisting of; 2 promissory notes, and, affidavits of Lesley and Gary Collis, and, NSW Government Birth Certificate Content Review, and, Outline to an Affidavit to the High Court by Brian William Shaw
GLC 10: Statement of Brian William Shaw re: Judicial Malfeasance
GLC 11: Letters to: (A) Law Institute Victoria, (B) reply, (C) list of lawyers, (D) proof of delivery
GLC 12: Sections of acts referred to in final submission
As part of the written statement accompanying these documents, the Applicant said, among other things, that:
(m) the mortgage over Fyansford showed a principal sum of $650,000;
(n) there was no principal sum recorded for the North Shore Property;
(o) a copy of the mortgage could not be presented as the First Respondent had on-sold the mortgages to Westpac Banking Corporation; and
(p) he could not lawfully sign over the title to a property he had not yet bought and this constituted a fraud.
On 16 August 2019, the Applicant filed a document titled ‘Defense’, which was in fact a submission. The judge presumed it was filed in accordance with the orders made on 8 August 2019. The document effectively restated and repeated points raised in other documents already filed by the Applicant.
On 30 September 2019, the Applicant sought leave to file new affidavit evidence. The Applicant said that he sent the proposed affidavit material to the First Respondent’s solicitors on 27 August 2019 and that the material contained an admission (presumably by the First Respondent) to which he sought to draw attention.
The First Respondent did not consent to the filing of further material. It submitted that the court orders made on 8 August 2019 were designed to finalise the summary judgment application and came after a series of adjournments were granted in order to accommodate the defendants. The First Respondent further argued that the material was objectionable and inadmissible because they were submissions and did not raise any relevant matters of evidence.
On 7 October 2019, Irving JR refused to grant the Applicant an extension of time to file an application for leave to appeal against the decision of Judge Woodward. Accordingly, the position remains that the Applicant was unable to represent his wife and the corporate defendants.
On 11 October 2019, Judge Cosgrave refused to adjourn the summary judgment application to allow the Applicant to file additional material. Having proceeded to hear the application, his Honour published the Reasons for granting summary judgment on 12 December 2019.
In those Reasons, the judge summarised the position of the parties as follows:
BOQ submits that on 8 February 2006, a mortgage was registered over the Fyansford Property by Mr and Mrs Collis in favour of BOQ as security for payment of a home loan given by BOQ to Mr and Mrs Collis (‘Fyansford mortgage’).
In addition, BOQ states that on 13 September 2013, a mortgage was registered over the North Shore Property by Fyansford in favour of BOQ as security for payment of a business loan given by BOQ to Collis Pty Ltd and guaranteed by Fyansford (‘North Shore mortgage’).
BOQ says it provided further financial accommodation to the defendants by way of the home loan in the amount of $801,233.80 to Mr and Mrs Collis, and by way of the business loan in the amount of $350,000 to Collis Pty Ltd.
BOQ contends that, as of 6 March 2018, Collis Pty Ltd was in default of the business loan, and, as of 24 July 2018, Collis and his wife were in default of the home loan.
Notices of default were sent to the defendants notifying them of the default and demanding payment in respect of both the business loan and home loan.
BOQ alleges that the defendants failed to make payment in accordance with the demands contained in the notices of default and have not made any payments since these proceedings were commenced.
The material filed by Collis sought to raise points about a variety of matters, most of which seemed to be irrelevant to the issues I had to decide.
I do not propose to deal in great detail with these points. In part, this is because they are incomprehensible. In the absence of a rational explanation and argument detailing how and why the above points are material to the application before me, I struggle to see how I can sensibly engage with them.
BOQ has attempted to analyse and categorise the defendants’ points in a coherent manner and has suggested that the main arguments raised are as follows:
(a)a company cannot be incorporated under the Corporations Act 2001 (Cth) as the Commonwealth of Australia was not empowered to pass such legislation (paragraph 1 of the defence);
(b)the plaintiff did not make a loan which constituted valuable consideration, but rather the plaintiff created a credit on its ledger (paragraphs 6 and 7 of the defence);
(c)the defendants are not in default of the loan facilities and claim that payment was made by post by promissory note on 11 July 2018 – (paragraphs 10 – 12 of the defence); and
(d)the defendants otherwise deny indebtedness, the breach of facilities, and that the plaintiff is entitled to possession of both the Fyansford Property and North Shore Property - (paragraphs 13 – 23 of the defence).[5]
[5]Reasons [56]–[64].
The judge set out the main issues as follows:
The main issues to be decided are:
(a)Has the plaintiff prima facie proved the essential elements of its claims?
(b)Did BOQ actually lend money to and take security from the defendants?
(c)Did the promissory notes given by Collis discharge the debt owed by the defendants to BOQ?
(d)Is the County Court without jurisdiction or biased and unable to hear the case?
(e)Is the Corporations Act 2001 (Cth) invalid?
(f)Does section 78(b) of the Judiciary Act 1903 (Cth) provide a defence?
(g)Does the King James Bible provide a defence?
(h)Does section 88 of the Imperial Acts Application Act 1922 (Vic) provide a defence?[6]
[6]Reasons [74].
On 12 December 2019, his Honour handed down judgment against the Applicant (the third defendant below) the Fourth Respondent (the fourth defendant below) and the companies, being the Second, Third and Fifth Respondents (the first, second and fifth defendants respectively below) and made orders as follows:
1.The First Defendant and Second Defendant pay the Plaintiff the sum of $297,249.07 together with interest in the sum of $41,370.56
2.The Third Defendant and Fourth Defendant pay the Plaintiff the sum of $1,112,423.71 together with interest in the sum of $154,825.00
3. The Plaintiff recover possession of the whole of the land described as:
(a)Land in Plan of Consolidation 109554 in Certificate of Title Volume 10124 Folio 767, being the land situated at and known as 17-21 Seaforth Street, North Short, Victoria;
(b)Crown Allotment 3 Township of Fyansford Parish of Gherineghap in Certificate of Title Volume 10340 Folio 838, being the land situated at and known as 60–80 Hamilton Highway, Fyansford, Victoria.[7]
(‘Orders’).
Proposed ground of appeal 1 — Jurisdictional error — Orders made in excess of the prescribed Jurisdiction
[7]Orders made by Judge Cosgrave on 16 December 2019.
The Applicant submits that the County Court did not have jurisdiction to hear and determine the dispute and that the First Respondent brought the proceeding in the wrong jurisdiction. The Applicant relies on s 85 of the Constitution Act 1975 to argue that the court did not have jurisdiction to determine the dispute.
The First Respondent submits that the County Court did have jurisdiction to determine the dispute pursuant to ss 4(1), 35 and 37 of the County Court Act 1958 in which the Court is given jurisdiction to hear and determine ‘the trial of offences and the trial and determination of all appeals, applications, claims, disputes and other proceedings both criminal and civil both at law and in equity…’[8] The First Respondent submits that the judge properly considered that the County Court had jurisdiction to hear and determine a proceeding concerning the enforcement of a mortgage, guarantee and credit facility.
[8]County Court Act 1958 s 4.
The judge held that the Court was properly constituted as a court of record by legislation passed by the Victorian government and that it did have jurisdiction to hear and determine the dispute and that the Court has heard and determined many like disputes in the past.[9]
[9]Reasons [84].
In our opinion, the County Court of Victoria is a properly constituted court of record with jurisdiction to hear and determine the dispute, as found by Judge Cosgrave. Section 85 of the Constitution Act 1975 does not assist the Applicant. The Applicant’s argument was unclear and it is not apparent why he submitted that the County Court was unable to hear the case. Cases of this kind come before the County Court all the time.
Proposed ground of appeal 2 — Lack of continuation of evidence
The Applicant submits that the proceeding lacked continuation of evidence because a conflict of jurisdiction of the Court existed and therefore the Applicant is able to challenge the jurisdiction of the Court.
The First Respondent submits that the ground of appeal is baseless and has no legal or factual basis and is without merit.
In our opinion, the ground is unintelligible and does not provide any basis to challenge the jurisdiction of the County Court or interfere with the decision of the judge.
Proposed ground of appeal 3 — Apparent Non-Compliance of the Court with the Constitution of the Commonwealth of Australia
The Applicant submits that the judge erred by not establishing that the Court, the judge and legislation the subject of the proceeding fall within ss 2 and 5 of the Australian Constitution. The Applicant further submits that the Court did not have jurisdiction to determine the dispute on the basis that the Victorian Parliament ‘illegally…remove[d] the independent Victorian courts from the position of a third arm of government under the Crown, and, did place them under a Minister of Justice and, under parliamentary control’.
The First Respondent submits that the Applicant’s submissions are baseless and that the judge correctly decided that the County Court did have jurisdiction to hear and determine the dispute. The First Respondent further submits that the appeal ground is without merit and legal basis.
The judge held that the Court has jurisdiction to hear cases of the kind and that it is ‘properly established as a court of record’.[10]
[10]Reasons [84].
In our opinion, the ground is unclear and provides no basis to challenge the jurisdiction of the County Court or interfere with the decision of the judge. We have already determined that the County Court had jurisdiction to hear and determine the dispute and the challenge to jurisdiction by this and other grounds has not been sufficiently developed and is not made out.
Proposed ground of appeal 4 — Validity of the Court to operate under the Crown
The Applicant submits that the Parliament of Victoria did not have the authority to ‘invest representation of the Crown’ in Victorian courts. It appears that the Applicant submits that Victorian courts are a corporation.
The First Respondent submits that this ground is without merit and legal basis.
In our opinion, the ground is unintelligible and does not provide any basis to challenge the jurisdiction of the County Court or interfere with the decision of the judge.
Proposed ground of appeal 5 — Opinion Rule
The Applicant submits that the judge erred in making his decision based on opinion and his view in breach of s 76 of the Evidence Act 1995. The Applicant submits that the judge concluding ‘my view is that the court is properly established as a court of record’ was based on his opinion and is not supported by legislation.
The First Respondent submits that s 76 of the Evidence Act 1995 is irrelevant to the dispute given that it has been superseded by the Evidence Act 2008 and the object of s 76 is to regulate opinion evidence given by a witness before the court. The First Respondent further submits that the appeal ground is ‘nonsensical and misguided.’
In our opinion, the opinion rule is not applicable. The judge was obliged to decide the case on the evidence and submissions made by the parties. He did not participate in the hearing as a witness to whom the rule limiting opinion evidence applies. Although the decision and reasons involve the rendering of an opinion, this is precisely what the remit of a judge is. The ground is indeed misguided.
Proposed ground of appeal 6 — Defective or fraudulent originating tort
This ground was abandoned by the Applicant
Proposed ground of appeal 7 — Counsel for the plaintiff not a qualified lawyer
The Applicant submits that counsel acting for the First Respondent is not a qualified lawyer and therefore, was not able to act for the First Respondent in the proceeding. The Applicant relies on s 88 of the Imperial Application Act 1922 to assert that the First Respondent’s counsel had not taken an oath of allegiance allegedly required by the Act in order to be a qualified lawyer in Australia.
The First Respondent submits that the Applicant has adduced no evidence to support the claim and that it is baseless and vexatious. The First Respondent submits that the ground is without merit.
The judge held that whether or not counsel for the First Respondent has taken an oath of allegiance is not relevant to the case. The judge commented that it was not clear how s 88 of the Imperial Acts Application Act 1922 is relevant to the case and commented that the provision had been repealed.[11]
[11]Reasons [92].
In our opinion, the ground is entirely without merit for the reasons given by the judge.
Proposed ground of appeal 8 — Human rights denied contrary to international law
The Applicant submits that his rights under s 6(2)(b) of the Charter of Human Rights and Responsibilities Act 2006[12] (‘Charter’) were denied on the basis that Victoria does not have a Commissioner of Human Rights to hear matters concerning breaches of the Charter. The Applicant relies on the preamble of the Australian Constitution to submit that the absence of a Victorian Human Rights Commissioner fails to guarantee his human rights and this is a breach of federal law.
[12]Section 1(1) of the Charter provides: ‘This Act may be referred to as the Charter of Human Rights and Responsibilities and is so referred to in this Act’.
The First Respondent submits that the Applicant has conflated the operation of the Charter and the Australian Constitution. The First Respondent further submits that the operation of the Australian Constitution and whether Victoria has a Human Rights Commissioner is not a defence or an appeal ground for a decision concerning enforcement of a mortgage and securities for the payment of a debt.
In our opinion, the argument, raised for the first time on appeal, is without merit and entirely misguided for the reasons given by the First Respondent.
Proposed ground of appeal 9 — Procedural fairness and natural justice denied
The Applicant submits that he was denied procedural fairness on the following grounds:
(q) the judge refused to accept further evidence after the 8 August 2019 hearing of the summary dismissal application;
(r) the parties were restricted to 10 pages of submissions and a two page affidavit for the application which, it is submitted, meant the judge failed to consider relevant issues;
(s) the judge accepted the closing submissions of the First Respondent which, it is submitted, included new claims. The Applicant submits that he was denied the right to rebut the new claims; and
(t) the judge failed to consider evidence that the First Respondent and Court Services Victoria share the same majority shareholder and therefore, a conflict of interest existed.
The First Respondent submits that the Applicant was given satisfactory opportunity to put forward his case, including submitting any evidence the Applicant wished to rely on. The First Respondent refers to the two adjournments ordered to give the Applicant more time to file additional material. The First Respondent further submits that the Applicant did not put on any evidence concerning the reasonable prospects of his defence.
The First Respondent submits that its closing submission did not raise new claims and that this appeal ground is baseless. In respect of the defence filed by the Applicant on behalf of the corporate defendants, the First Respondent submits that the Court invited the parties to file submissions concerning the validity of the defence and the Applicant chose not to file submissions.
The First Respondent submits that the Court considered the Applicant’s submissions concerning the alleged conflict of interest and determined that a conflict did not exist. The First Respondent submits that the appeal ground is without merit and any legal basis.
Judge Cosgrave determined that the Applicant had numerous opportunities to file and serve materials that he wished to rely on and, because of considerations based on the need for the Court to give effect to the overarching purpose of the Civil Procedure Act 2010, namely, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, he refused to allow the Applicant a further adjournment to file more material.
In our opinion, having considered the entire procedural history of the proceeding, it is clear that the judge afforded every opportunity to the Applicant and the other defendants to adduce evidence and present their case. Despite such opportunity the entire focus of the Applicant was on the numerous irrelevant matters raised before the judge and before us, on this application for leave to appeal. The Applicant has not explained or in any way demonstrated why a further opportunity would have enabled him to address the relevant issues in the proceeding. Any further opportunity would have been futile and the judge was obliged to facilitate the progress of the case in accordance with the usual case management procedures and the imperatives of civil litigation set out in the Civil Procedure Act. Accordingly, leave to appeal on this ground is refused.
Proposed ground of appeal 10 — New claims for which rebuttal and evidence were denied
The Applicant submits that the First Respondent did not ‘lend’ the money the subject of the mortgages. The Applicant submits that the First Respondent initially submitted that it had provided ‘financial accommodation’ to the Applicant and that this is different to lending money. The Applicant submits that the First Respondent in closing submissions referred to the First Respondent having ‘leant money’ to the Applicant and that this introduced a new claim in the proceeding to which the Applicant was unable to submit a defence. In essence, the Applicant submits that there is a difference between a bank providing financial accommodation and lending money.
The First Respondent submits that the judge correctly found that the First Respondent had provided financial accommodation pursuant to the loan facilities and that this ground of appeal is without merit and legal basis.
The judge held that the First Respondent proved its case and was entitled to summary judgment.[13] The judge was satisfied, on the evidence, that the First Respondent ‘advanced money’ to the Applicant and his wife.[14]
[13]Reasons [75].
[14]Reasons [77].
In our opinion, the judge was correct. There is no relevant difference between providing a loan and the more general formulation of providing financial accommodation. Proper particulars were given and the evidence established that funds were advanced to and for the benefit of the Applicant and despite demand there was no repayment. Summary judgment was entirely appropriate in the circumstances and on the evidence.
Proposed ground of appeal 11 — Lack of evidence supplied by the first respondent
The Applicant submits that the judge erred by failing to call for the original mortgage contracts and that only copies of the contracts were provided to the Court which resulted in the judge not verifying the debt.
The First Respondent submits that it adduced ‘substantial evidence’ to prove its case and that the judge correctly found in the First Respondent’s favour based on the evidence tendered to the Court.
The judge held that the evidence adduced by the First Respondent, including affidavits of Anthony Raviola, a manager of the First Respondent, bank statements and facilities documents, proved that the First Respondent had advanced money to the Applicant and that the Applicant had not made the requisite payments.
In our opinion, the judge was entitled to act on the entirety of the evidence before the Court. In particular, execution of the mortgage was not denied.
Proposed ground of appeal 12 — Bias Rule —Conflict of interest
The Applicant submits that the County Court was in a position of conflict and the judge should have recused the Court from hearing the application under the ‘bias rule’. The Applicant submits that the conflict arises because the Victorian courts are essentially owned by the Liberty Group or the Challenger Financial Group which is the majority shareholder of the First Respondent.
The First Respondent submits that the County Court is an independent body and that this ground is baseless and misconceived. The First Respondent submits that the judge did consider the Applicant’s submissions and held that no conflict of interest exists.
The judge held that there is no connection between Challenger Financial Group, Liberty Group and Court Services Victoria ‘which creates a situation of actual or apprehended bias which would render it inappropriate for me to determine this application.’[15] The judge considered that there was no evidence or basis to establish that a fair-minded lay observer might apprehend that he might not bring an impartial mind when determining the application.[16]
[15]Reasons [86].
[16]Reasons [87], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
In our opinion, the judge was correct for the reasons given. The argument is misguided, unclear and unintelligible and must be rejected.
Proposed ground of appeal 13 — Validity of the Act by which the First Respondent as a person can sue or be sued
The Applicant submits that the First Respondent wrongfully sued in its name as the Act, which provides that a corporation is able to sue in its name, is invalid. The Applicant submits that the Act has not been validly enacted on the basis that the Parliament had no power to pass the Act as law. The Applicant submits that the judge erred by failing to consider the validity of the Act.
The First Respondent submits that the Act is valid legislation and that the judge correctly found so. The First Respondent submits that the judge applied the correct law and that this ground is without merit and has no legal basis.
The judge held that the Act is valid as a law and that its ‘validity must be taken as indisputably established.’[17]
[17]Reasons [89].
In our opinion, it is well accepted that the Act is a valid Act of the Commonwealth Parliament passed under the relevant heads of power in the Australian Constitution, including references of legislative power by the States, and applicable in the State of Victoria.[18] The argument as to lack of power, which was not advanced or developed beyond assertion, is rejected.
[18]See the Act, Ch 1, pt 1.1.
Proposed ground of appeal 14 — Failure of the court to consider relevant evidence
The Applicant submits that the judge erred by failing to consider a publication of the NSW Attorney General’s Department as part of the Applicant’s submission that a birth certificate is an appropriate form of security or payment.
The First Respondent submits that the judge considered the Applicant’s submission and evidence submitted in support of the submission but found against the Applicant. The First Respondent submits that the appeal ground is without merit and has no legal basis.
In our opinion, the ground, not developed beyond assertion, is self-evidently without merit and is rejected. There is no tenable basis for saying that a birth certificate is an appropriate form of security or payment.
Proposed ground of appeal 15 — Denial of fair trial of defendants not permitted to be represented
The Applicant submits that the three corporate defendants (the Second, Third and Fifth Respondents) and the Fourth Respondent, the Applicant’s wife, were denied a fair trial on the grounds that the judge heard and determined the summary judgment application despite the defendants not having legal representation. The Applicant submits that the defendants do not have the financial means to engage lawyers and the judge’s decision to hear and determine the application before representation was obtained is an abuse of process.
The First Respondent submits that the defendants chose not to appoint legal representatives and the lack of representation had no bearing on the merit of the application. The First Respondent further submits that the issue concerning legal representation was determined by Judge Woodward on 7 June 2019 and it would have been inappropriate for the judge to disturb this decision.
The judge considered the decision of Judge Woodward and Irving JR and held that the Applicant was unable to represent the corporate defendants and his wife pursuant to these decisions.[19]
[19]Reasons [37].
In our opinion, the judge was correct for the reasons set out below.
Proposed ground of appeal 16 — Orders based on void mortgage contracts
The Applicant submits that at the time of executing the mortgage documents, the Applicant did not have title to the properties because the Applicant had entered into the loan documents months prior which, the Applicant submits, assigned the titles to the First Respondent. On this basis, the Applicant submits that the mortgage contracts were entered into fraudulently. The Applicant further submits that the First Respondent misled the Applicant by claiming that the Applicant could assign the titles to the properties to the First Respondent, at the time of executing the mortgage documents, when the Applicant did not have title.
The First Respondent submits that the Applicant entered into a loan agreement with the First Respondent which resulted in the Applicant agreeing to enter into the mortgage. The loan documents did not assign the titles of the properties to the First Respondent and the mortgage only took effect at the time the First Respondent advanced the monies pursuant to the loan agreement. At the time of completing the purchase of the properties, the mortgages were registered on the titles in accordance with s 42 of the Transfer of Land Act 1958 and the First Respondent took indefeasible title of the properties. The First Respondent further submits that it was entitled to enter into the loan agreement and register mortgages prior to settlement of the properties on the basis that the purchasers had rights in equity in the properties.
The First Respondent submits that the appeal ground is without merit and legal basis.
In our opinion, the proposed ground, not raised before the judge, and not developed in argument before us, is without merit substantially for the reasons submitted by the First Respondent.
Proposed ground of appeal 17 — Instruments to discharge the alleged debt not proved to be invalid
The Applicant submits that the judge erred by finding that promissory notes, created by the Applicant, were not valid forms of payment to discharge the debt owed to the First Respondent. The Applicant submits that there is no legislation which restricts who is permitted to make promissory notes and the judge was incorrect to find that the Applicant personally could not make a valid promissory note.
The First Respondent submits that the judge correctly held that promissory notes personally created by the Applicant and his wife did not discharge the debt owed to the First Respondent. The First Respondent submits that this ground is without merit and has no legal basis.
The judge held that the promissory notes created by the Applicant ‘were without legal effect’ and did not discharge the debt owed to the First Respondent.[20] The judge referred to various authorities[21] which establish that home-made promissory notes that are not drawn on a reputable and substantial financial institution will not diminish the debtor’s liability to the lender.
[20]Reasons [83].
[21]Hou v Westpac Banking Corporation Ltd [2015] VSCA 57; ANZ v Evans [2016] NSWSC 1742; Permanent Custodians Ltd v Sanders [2017] VSC 516.
In our opinion, the judge was correct for the reasons given. The First Respondent was not obliged to accept an unsecured promissory note from its debtor, the Applicant. It represented no more than a piece of paper devoid of legal content other than perhaps having some effect as an acknowledgment of debt. More relevantly, it had no effect on the underlying obligations. Precisely how the promissory note was considered to discharge the underlying obligations, absent acceptance, was not explained. It could not constitute a tender and this proposed ground of appeal is another example of an entirely unmeritorious and misguided ground.
Proposed ground of appeal 18 — The first respondent’s presumed power of attorney is not according to law
The Applicant submits that the First Respondent did not have a lawful power of attorney to execute the securities documents. The Applicant also submits that the First Respondent has assumed power of attorney over his properties and accounts.
The First Respondent submits that there is no allegation in the proceeding that the First Respondent executed any documents under a Power of Attorney and that this submission and ground of appeal is irrelevant to the dispute and the appeal.
In our opinion, the ground is unclear and was not sufficiently developed. It was not raised before the judge and does not have any evident merit.
Proposed ground of appeal 19 — Fraud of non-disclosure of securitization and sale to a third party
The Applicant submits that the First Respondent securitised the mortgages without his knowledge and therefore, the First Respondent is no longer entitled to repayment of the loan. The Applicant submits that the First Respondent committed fraud by selling the mortgages without notifying the mortgagor. The Applicant relies on a public notice issued by Westpac Banking Corporation in which Westpac notifies the public that various Westpac mortgages, including some mortgages from the First Respondent, have been pooled into various trusts to be sold to a third party trustee. The notice goes on to state that the various trusts have hired Westpac to service the loans so that Westpac continues to collect mortgage repayments and interest which it then passes onto the respective trusts. The notice also states that the Westpac customer with a mortgage subject to this scheme will not notice any material change. The Applicant also submits that he is concerned that the titles to the properties subject to the mortgages have been destroyed by the First Respondent.
The First Respondent submits that no evidence was adduced showing that the mortgages, the subject of the proceeding, have been sold or assigned and therefore the ground is without merit and legal basis.
In our opinion, this ground, not raised before the judge, is without merit, as submitted by the First Respondent. No evidence was adduced to support the allegation. In respect of this ground, and many other grounds, the Applicant relied on articles and other publications without adducing the necessary evidence. In any event, even if the loans provided to the Applicant were included in any securitisation plan, this would have no effect on the enforceability of the loans and security with respect to the Applicant’s obligations. The Applicant denied having received any notice of any assignment of the loans and securities, a necessary pre-condition to a legal assignment under s 134 of Property Law Act 1958. If there was indeed an equitable assignment, the correct plaintiff is the original lender and mortgagee, in this case the First Respondent. The proposed ground is without merit and leave to appeal is refused.
Proposed ground of appeal 20 — Void orders
The Applicant submits that the Orders are void and an order for retrial should be made on the basis that the County Court did not have jurisdiction to determine the dispute.
The First Respondent submits that the ground of appeal is incomprehensible and without merit and legal basis.
In our opinion, for the reasons we have already given, this proposed ground is without merit and leave to appeal is refused.
Disposition
In our opinion, for the reasons given, none of the grounds has any prospect of success and leave to appeal is refused.
Leave to appeal in proceeding S APCI 2019 0076 — refusal of extension of time
As mentioned, on 17 May 2019, Tran JR dismissed the Applicant’s application for leave to appear on behalf of Collis Pty Ltd, Fyansford, Mrs Collis, and APT.
On 7 June 2019, Judge Woodward dismissed the Applicant’s application for review of Tran JR’s decision. The review was a rehearing of the application before the judicial registrar.
The Applicant’s materials filed in support of his application before Judge Woodward raised a number of arguments. In summary, these arguments included:
(u) the Bank is owned by the same corporation which owns the County Court;
(v) the Bank routinely on-sold debts to a corporate subsidiary of a corporation which owns the County Court, creating a conflict of interest that prevents the County Court from determining the dispute;
(w) the County Court is not a Chapter III court and cannot hear the proceeding;
(x) rule 1.17 of the County Court Civil Procedure Rules 2018 is reliant on the Corporations Act 2001 (Cth) which is invalid because it did not receive a second or third reading and no votes were recorded in Hansard;
(y) that the matter cannot proceed until the Bank’s solicitors present documents that they are ‘legally practicing practitioners’;
(z) his reluctance to hire a lawyer was not based on insolvency but rather the Applicant’s intimate knowledge of the corporate defendants’ affairs and previous poor experiences with lawyers;
(aa) the Court has no grounds to enforce r 1.17 because no-one other than the Applicant and the Fourth Respondent could be harmed by the Applicant representing the corporate defendants;
(bb) the Fourth Respondent was unable to locate a lawyer who has taken the appropriate oath of allegiance on admission;
(cc) the Fourth Respondent had authorised the Applicant to represent her and the corporate defendants;
(dd) biblical law (the King James Bible) is the most eminent and highest law; and
(ee) the Fourth Respondent is not incompetent but under holy law the Applicant and the Fourth Respondent are one flesh.
At the hearing before Judge Woodward, the Applicant raised the additional argument that he has a ‘claim of right’ to represent his estate which includes his wife and his companies.
On 7 October 2019, Irving JR refused to grant the Applicant an extension of time to file an application for leave to appeal against the decision of Judge Woodward.
Irving JR refused to grant the Applicant an extension of time for the following reasons:
(ff) the explanations the Applicant submitted regarding the delay in filing the application for leave to appeal did not ‘constitute a reasonable explanation for the length of the delay in bring the application’;[22]
(gg) the proposed appeal grounds submitted lack merit; and
(hh) the First Respondent would be prejudiced if the application was granted.
[22]Irving JR Reasons [13].
No separate submissions were filed in relation to this application for leave to appeal and very little was said by the Applicant in oral submissions. Presumably it was considered that the submissions in relation to proposed ground of appeal 15 regarding the application for leave to appeal against the decision of Judge Cosgrave were sufficient to address the issues.
In our opinion, it was entirely open to the Irving JR, in the exercise of his discretion, to refuse to grant the extension of time to the Applicant. No error has been identified and leave to appeal is refused.
In Song v Commissioner of the Australian Federal Police the Court described the principles relevant to the exercise of its discretion to extend time:
Applications for extension of time are made under Rule 64.08. The power to grant an order for an extension of time is discretionary. In determining such an application, the Court takes into account the length of the delay, the reasons for the delay, the extent of any prejudice to the respondent, and the prospects of success of the substantive application for leave to appeal. Ordinarily, it is not appropriate that an appellate court enter into detail on the merits of the proposed appeal, because, at the stage of an application to extend time, it only has limited materials and arguments before it. On the other hand, a Court will refuse leave to extend time, notwithstanding that there has been a satisfactory explanation for the delay, if it concludes that the proposed appeal is so devoid of merit that it would be futile to extend time.[23]
[23][2019] VSCA 206, [20].
In relation to delay, the Applicant gave two reasons. First, that he was waiting for the transcript of the hearing before Judge Woodward, which was only received on 25 June. Secondly, he was required to care for his wife. The judicial registrar was not satisfied that these reasons provided a satisfactory explanation for a delay of 28 days. He said:
Mr Collis is bound by the overarching obligations under the Civil Procedure Act 2010 (Vic) to use reasonable endeavours to act promptly and to minimise delay. While I acknowledge Mr Collis’ other responsibilities during the relevant period, given that similar responsibilities apply to many people using the courts, I am not satisfied that they constitute a reasonable explanation for the length of the delay in bringing his application.[24]
[24]Irving JR Reasons [13] (footnotes omitted).
We consider that it was open to the judicial registrar, in the exercise of his discretion, to find that the Applicant’s reasons were not sufficient to provide an adequate explanation for the delay and did not warrant an extension of time. There is no error within the principles of House v The King.[25]
[25](1936) 55 CLR 499, 505.
In relation to the merits, the judicial registrar concluded that the proposed grounds of appeal, as set out below, were devoid of merit and it would be futile to extend time.
The 14 proposed grounds of appeal are as follows:
1.His Honour did err by comparing my case with the following cases which appear to be poor, inappropriate comparisons and have little bearing on my application so appear to be inconsistent and biased:
a. Sill, Jeffrey Craig v City of Wodonga [2018] VSCA 195
b. Worldwide Enterprises v Silberman [2010] 37 [sic] VR 595
c. Scotts Head Developments Pty Ltd
d.Ilford Tower Pty Ltd v Equity One Mortgage Fund Ltd [2014] 306 ALR 144
e. Apostolou v Commissioner of State Revenue [2008] VSC 332
2.His Honour did err by refusing to read my Claim of Right document which was presented to him at the hearing, which is an entrenched right, and, he did not rebut it, or, give any reason in law why he should not read it.
3.His Honour did err by assuming that being financially solvent, automatically implied that legal representation is affordable to my wife and I, as well as to our companies. Nor did he take into account the bitter experiences we have suffered in the hands of such ‘qualified representation’.
4.His Honour did err by failing to take into account that our writing to the Law Institute asking for a list of lawyers that are ‘qualified’ to be a lawyer under section 88 Imperial Acts Application Act, and, further writing to the list of lawyers sent in reply, failed to produce a lawyer qualified, as so required by law.
5.His Honour did err by ignoring quoted and implied sections of the Authorized King James Bible in relation to man and wife, lawyers, persons and others which is entrenched law, and the highest law of the land.
6.His Honour did err by not taking into account entrenched Common Law property rights. Denial of the right of the Third defendant to represent the other defendants is arbitrary interference to traditional property rights, and Traditional Rights and Freedoms.
7.His Honour did err by applying delegated legislative power unreasonably in its use of Court Rule 1.17 in not taking into account the claim that representation of the companies affects no other person.
8.His Honour did err by not taking into account the principle of legality due to reliance on Acts which lack head of power, and/or, have not been enacted according to law, nor, have not passed the Scrutiny Test.
9.His Honour did err by presuming that simply being a self-represented litigant will be a waste of court time because he, or she would be ‘untrained’, in so doing, he did not take into account Procedural Fairness.
10His Honour did err, appearing to engage in cartel conduct by restricting representation exclusively to lawyers. The court being a body corporate is under ACCC law.
11.His Honour did err by assuming that by having authority to speak for the private express trust, also means I have authority to overrule the board of trustees, which is not the case.
12.His Honour did err by assuming that arguments of my case are without merit, before evidence for those arguments has been presented, this making an uninformed assumption.
13.His Honour did err by stating that I have ‘apparent willingness to ignore the guidance offered by Judicial Registrar Burchell’. My appeal is based wholly on the injustice and inapplicability of the said ‘guidance’.
14.His Honour did err by ignoring completely and did not rebut the stare decisis US Supreme Court cases cited in my submission.
The proposed grounds are entirely unmeritorious and misguided. They have nothing to do with the basis on which leave is usually granted; they do not support the submission that an extension of time should have been granted in this case. Yet again the grounds are far removed from the real issues in dispute. The judicial registrar was entitled to conclude, as we conclude, that the proposed grounds are so devoid of merit that leave to appeal or the extension of time within which to seek leave to appeal would be futile. Even had there been a satisfactory explanation for delay, the futility of granting the extension of time was, alone, sufficient justification for refusing to do so.
It is sufficient to say that at no stage has the Applicant made out any case as to why he should be permitted to represent the corporate defendants. It is not enough to submit that he is the sole director and shareholder. Rather, it must be established that an applicant has the ability to represent the companies. Usually it is accountants and highly experienced directors who are given such leave. The Applicant does not qualify in that sense. On the contrary, the various issues raised by the Applicant both before the judge and before us, demonstrate conclusively that the Applicant is entirely unqualified to represent the corporate defendants. Finally, the corporate defendants were not, in any event, disadvantaged. There has been no suggestion, at any stage, that they were in a different position to the Applicant and had available defences that were not pursued but would have been pursued if the Applicant was permitted to represent them.
Accordingly, the application of leave to appeal from the orders of Irving JR refusing an extension of time is dismissed.
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SCHEDULE OF PARTIES
| GARY LEONARD COLLIS | Applicant |
| and | |
| BANK OF QUEENSLAND LIMITED (ABN 32 009 656 740) | First Respondent |
| G.L. & L.A. COLLIS PTY LTD (ACN 095 354 340 | Second Respondent |
| FYANSFORD PTY LTD (ACN 163 508 058) | Third Respondent |
| LESLEY ANN COLLIS | Fourth Respondent |
| ASIA PACIFIC TRADE PTY LTD (ACN 095 354 260) | Fifth Respondent |
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