Gibbs v Triscott

[2001] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B63 of 2000

B e t w e e n -

ALAN HARRY GIBBS

Applicant

and

PAUL ANTHONY TRISCOTT

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 2.18 PM

Copyright in the High Court of Australia

MR A.H. GIBBS appeared in person.

GUMMOW J:   Call matter 11 outside the Court, officer.

COURT OFFICER:   No response, your Honour.

GUMMOW J:   Thank you.  Yes, Mr Gibbs.

MR GIBBS:   Your Honour, this has been an ongoing matter for some years.  I made an application to the Queensland Supreme Court and Judge Williams denied me an adjournment to seek legal advice.  I could not hear what he was saying and he was well aware of that, so he was in breach of rule 14 of the Supreme Court Interpretation Act.  His orders stated that the bill of Triscott was sent to Gibbs.  That is completely untrue.  I have never had a bill from Triscott and I have never had any personal dealings with Triscott and I am blue in the face from telling courts that.  No one wanted to know.

It went to appeal.  I then found out that I had a right of action.  The appeal court denied me that action.  I am now here to claim a right of action.  To begin with, Mr Triscott worked for a company called H.B. Homes Pty Ltd, of which I was – I am still a director.  When he sent his bill to that company, it was grossly overcharged.  He never waited for any correspondence.  He immediately took out a summons against the company and myself.  I am only a director.  The bill is not to me.  That is marked as evidence 1.  A Magistrates Court summons to H.B. Homes Pty Ltd and Alan Gibbs, second defendant.

Evidence 2, which is filed with the Court, clearly shows that Triscott’s bill is to H.B. Homes Pty Limited.  It has nothing at all to do with me.  I am only a director.  Evidence 3 is again Campbell v Hyland in a duty of care, 1478 of 1985.  Triscott showed no care or respect whatsoever for myself or my company in his dealings.  The Limitation of Actions of 1974 in article 31, which is filed with the Court and marked 4, states a duty of this by virtue of ‑ ‑ ‑

GUMMOW J:   This is section 31, is it?

MR GIBBS:   31, your Honour:

where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury –

a person has the right of action.  The Supreme Court does not agree.  Further to Triscott’s illegal actions, we had to file an application before Judge de Jersey asking for Triscott’s bill to be taxed because it was out of its time.  The judge allowed that.  Triscott then filed his bill with the taxation office in the Supreme Court of Appeal and across the top of his bill, which is filed with the Court and marked as evidence 5 – he has written across the top of the bill to be:

PAID BY ALAN GIBBS PURSUANT TO THE ORDER OF MR JUSTICE DE JERSEY MADE THE 5TH DAY OF JUNE 1991.

There is no such order.  That is deliberately diverting the course of justice and putting someone else’s bill into my name.  The orders of Judge de Jersey is filed with the Court and marked 6.

GUMMOW J:   Now, Mr Gibbs, why do you say section 31 operates in your favour here?

MR GIBBS:   Because it was a breach of duty.

GUMMOW J:   Well, you are looking at section 31 of the Limitations Act 1974?

MR GIBBS:   That is correct, your Honour.  He breached his duty to me by failing to file the right summonses.  He is summonsing me for someone else’s bill.

GUMMOW J:   How do you get over – just a moment.  How do you get over subsection (2).  Subsection (1) is just telling you when subsection (2) applies.

MR GIBBS:   Subsection (1).

GUMMOW J:   Yes.

MR GIBBS:   Where an application – subsection (2), “on application to a court” ‑ ‑ ‑

GUMMOW J:   See the right of action to which the section applies looks like subsection (1), but then you have got to get over subsection (2).  That is what the Court of Appeal somewhat shortly, I think, was saying.

MR GIBBS:   Well, I realise I am up against a great brother of a court and usually after going to court with him for 10 years and I am usually accustomed to courts favouring him, even though he has committed criminal acts.  Judge de Jersey’s orders do not state that I have to pay Triscott’s bill.  That is filed and shown as evidence 6.

GUMMOW J:   Now, what do you say about Mr Justice Pincus’ remarks in the Court of Appeal?

MR GIBBS:   Justice - - -?

GUMMOW J:   Justice Pincus on page 13 of the application book.  He was alert to these difficulties.  At line 10 on page 13.

MR GIBBS:   Yes.  What does he say:

the difficulty which Mr Gibbs finds himself in consists in his having told us today that he only found out this morning that in Queensland there is a time limit –

well, that is correct.  I did not know there was a time limit and I did not know I had ‑ ‑ ‑

GUMMOW J:   Well, the judge is saying that perhaps you should have sought legal advice.

MR GIBBS:   I should have got legal advice.

GUMMOW J:   Well, that is what the judge is suggesting.  I am inviting you to look at it on page 13.  He says it is pretty obvious to a lawyer – it is a pretty obvious point.

MR GIBBS:   The judges that sit in courts all day have got no idea of the trouble that layman have fighting solicitors.  You go to a solicitor and ask him to take a case against another solicitor.  They are like police.  They stick together like glue.  They do not want to know about it.  It is almost impossible to even get advice.

GUMMOW J:   Are you saying you have sought advice?

MR GIBBS:   I sought advice after Williams struck out the matter.  I was told about the right of action, which I looked up in the library myself.  I think the right of action states that if a person does not know of the time limit, they are entitled to a right of action.  Now, Triscott’s bill – this is the history of the matter, I am sorry to bore you with, I hope ‑ ‑ ‑

GUMMOW J:   You are not boring us at all.

MR GIBBS:   Thank you very much.  Triscott’s bill was taxed and reduced by more than one‑sixth or it came to a couple of thousand dollars, but it was still in my name.  So I made an application to the Supreme Court of Appeal to have that heard and the bill put in the right name.  Triscott then runs in the same day – it is on evidence 11.  He goes into the Magistrates – no, it is not on 11, I beg your pardon.  He goes into the Magistrates Court and he takes out judgment against me by an act of perjury.  That is on 8.  He states:

The Supreme Court in Brisbane on the 8th day of November 1991 order that the defendant pay the amount or be at liberty to obtain judgment –

by default.  There is no such order.  That is clear perjury, but no court wants to know about it and no police station wants to know about it.

GUMMOW J:   Now, Mr Gibbs, this company H.B. Homes Pty Ltd, you are a director of that?

MR GIBBS:   Yes.

GUMMOW J:   Is it still operating?

MR GIBBS:   Yes.

GUMMOW J:   And is it a family company or broader than that?

MR GIBBS:   No, just a company, investment company.  I then filed an application ‑ ‑ ‑

GUMMOW J:   Are there other directors apart from yourself?

MR GIBBS:   There was three at the time we dealt with Triscott, but I am a sole director now.  I bought out the others.

GUMMOW J:   I see.

MR GIBBS:   After Triscott took out his illegal judgment I filed an application with the Magistrates Court at Beenleigh to set aside his judgment.  He had that in front of him in November.  On 30 January he ran into the Federal Court and took out a bankruptcy notice against me with a statement saying his judgment was not stayed, and they say that is not perjury, he is not lying.

When it was heard by the magistrate, he asked the magistrate to adjourn it until after my appeal in the Supreme Court, where I was asking for that tax bill to be taken out of my name.  He still had judgment against me.  What chance did I have in the Supreme Court when that man has still got judgment against me.  When it was finally heard by the magistrate at the Beenleigh courthouse, he stated – and I read:

I consider the Judgment by Default obtain on 4/12/91 is a nullity as it was based upon incorrect assertion in the affidavit of the Plaintiff dated 3/12/91 – in particular para 3(c) – there was no Order from a Supreme Court that the Plaintiff could obtain Judgment by default.

Accordingly I set aside the Judgment –

Down the bottom of that page he goes on:

I decline to grant the adjournment as requested.  I allow the application by the Plaintiff against H.B. Homes Pty Ltd and set aside the Defence and I give leave for the Plaintiff to enter Judgment against the Company H.B. Homes Pty Ltd for the sum of $6,675.46 together with costs . . . 

I refuse Plaintiff’s application so far as the second Defendant is concerned.  There appears to be a triable issue.

That Action is adjourned to Registrar.  I order that –

please take careful note –

should the debt not be paid in full to the plaintiff by the company within 21 days of entry of Judgment against the Defendant the action against the Second Defendant be listed for Trial.”

Triscott then refused to accept payment from the company.  We had to get Supreme Court orders to make him accept the payment.  Then he takes out a bankruptcy notice against me and to try and set aside that bankruptcy notice I filed in the District Court in Toowoomba a summons for damages against Triscott.  That was heard by the honourable Judge Skoien.  He not only dismissed that application, but he forced me into the witness box and had me examined on a forgery of an indemnity that was put to me by Triscott and not even filed with the court.

Now, if you read that section there of Judge Skoien’s transcript of evidence, you will see that the judge knew exactly what it was but it is not filed with the judge.  I then appealed against that and I was told by the Chief Justice of that time, Judge Macrossan I think his name is, that Triscott’s bill is paid but there is still a case against me for the same bill.  Now, I have got that in writing.  He also refers to it in his judgment.

I have never been able to have a case heard against Triscott for what he has done to me.  He has wrongly prosecuted me.  He has ruined my business and took away my living with a bankruptcy notice that should never have been filed.  I cannot have a case against him because it would appear to a layman that in Queensland some court cases are judged or judgment is given by the judge or whoever gets to the judge first.  It is not based on law one little bit.  I tried the second time for damages ‑ ‑ ‑

GUMMOW J:   Well, you say that.  The points on the Limitations Act are based on the law.

MR GIBBS:   I beg your pardon?

GUMMOW J:   The points on the limitations statute are based on law.

MR GIBBS:   Based on law?

GUMMOW J:   Yes.  Now, what is your answer to those?

MR GIBBS:   Well, it is nice to have something on law.  I tried the second time, went through the same procedure, “No, you can’t have a case against poor Mr Triscott”.  I go to the police and say, “Triscott has committed perjury.  I want to place charges against him”.  “Paul Triscott.  Paul wouldn’t do a thing like that.  He looks after us at Christmas time.  That is not perjury.  He wouldn’t do that.  No, go away.  We can’t do that.”

I went to the appeal court the second time.  I did not agree with their findings.  I came here and stated quite clearly that I have never had a bill from Triscott; I have never had any personal dealings with Triscott; he has committed criminal actions in an endeavour to steal from me and, with great respect, Judge Callinan, I think it was, dismissed the application on the grounds that it was only an argument over a bill.  You do not remember?

CALLINAN J:   No, I am afraid – I am afraid I do not.

MR GIBBS:   I have seen your name – I have seen your name, that is all.  Yes.

CALLINAN J:   There is a Justice Cullinane in Queensland.

MR GIBBS:   Is there?  It might be.

GUMMOW J:   It is a different person, I think.

MR GIBBS:   I might be getting confused.  I beg your pardon.

CALLINAN J:   I think I would remember you if you had been before me, Mr Gibbs.

MR GIBBS:   No.  Yes, you would, yes, but I missed the court that day because of my hearing and I thought you were adjourning for lunch and you were finished.  Anyway, it was dismissed by this court on the grounds that it was only an argument over a bill.  Now, what bill?  I do not have a bill from Triscott.  I have never had any personal dealings with Triscott and it is quite obviously – I have never been allowed to have any case against Triscott and on those grounds I think I should be granted the right of action and also I would like this Court to order legal aid for my case because I am hard of hearing and I am exhausted going to court with this criminal.

GUMMOW J:   Yes, thank you, Mr Gibbs.

MR GIBBS:   Thank you.

GUMMOW J:   The proceedings which were struck out were instituted in the year 2000.  They arose out of events occurring some eight or more years previously.  The Court of Appeal pointed out that, as a result, the proceedings were statute barred and no basis appeared for an extension of time pursuant to the Limitation of Actions Act 1974 (Qld). There is no prospect of success in a challenge to the decision of the Court of Appeal on that point. Accordingly, the application for special leave is refused.

AT 2.40 PM THE MATTER WAS CONCLUDED