Giniotis v The Director of Planning

[1989] HCATrans 2

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S97 of 1985

B e t w e e n -

ALFONSAS GINIOTIS

Applicant

and

THE DIRECTOR OF PLANNING

Respondent

Application to dismiss for

want of prosecution

GAUDRON J

(In Chambers)

Giniotis
MR K. CHAPPLE:	I appear for the respondent m this matter, if

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JANUARY 1989, AT 12.32 PM

(Continued from 16/12/88)

Copyright in the High Court of Australia

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Your Honour pleases. (instructea oy David G. Brigden)

MRS A. GINIOTIS:  Honourable Court, today I come with several

affidavit but I believe that more clear in my

affidavit which I file and serve, party. On

the 10th I receive affidavit from solicitor Broune.

I crave leave to refer to such affidavit, to

paragraph 2. In reply there I say that index

cf documents had previously been prepared by me

and filed on 11 July 1984 which I have copies.

HER HONOUR:  Mrs Giniotis, I have read this affidavit. The

question is, is there any reason why you cannot now prepare - well, it is not really. Is there any reason why I should not strike out the

application for leave to appeal, that is still the

question, and that depends on whether you have got

some reason for not filing and serving application

books?

MRS GINIOTIS:  Yes, honourable Your Honour. Now, I receive

final answer from Attorney-General office, that

I have no choice in this situation. I should go to

further with - to Canberra with my documents because

I have no assistance at all - - -

HER HONOUR:  Now, Mrs Giniotis, that is your choice that

you have no assistance. It has been made clear

to you at all times that you will need lawyers

if the matter comes on for hearing, you know that.

Now, it is not good enough to say that you have

no assistance, that is irrelevant. The question

is is there any reason why the matter cannot

be processed in the normal way?

MRS GINIOTIS:  Your Honour, there is only one answer,

why I walk from office to office because - - -

HER HONOUR:

I am not interested in your walking from office

to office.

MRS GINIOTIS:  With that problem which in the document

missing -connected with the document missing, I -

no one solicitor, how many solicitors I pass,

private, make appointments and everyone made clear

to me that I should first get this affidavit,

does not matter how hard will be for me because

otherwise I not prove to Court, and Court will be not

listen the other evidence because this is documents

wh:i.ch one document that clear was say that our

property not responsible for - - -

HER HONOUR: All right, thanks, all right. Certain documents

have now been made - certain copies have now been

made available to you?

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Giniotis

MRS GINIOTIS:	Yes, but this is only - - -
HER HONOUR:	We know they are copies. We know they are copies. It has at all stages been clear that
the best you were likely to achieve was obtaining
copies.  We know they are copies. Now, is there
any reason to suppose - well, they are copies. The
point is they are copies.  They will have to go
in. There is nothing else that can be done, nothing
else that can be done, nothing else. There is
no original presently available. In those
circumstances copy documents can be resorted to
and that is what will happen, or other evidence
of what was in the documents.  Now, what is
wrong with the copy documents?
MRS GINIOTIS:	I refer in my affidavit -
HER HONOUR:	They have not got the exhibit stamp on them

but that is irrelevant.

MRS GINIOTIS:  But that not original copies.

HER HONOUR:  All right. I see. You say they are not

accurate? Do you say they are not accurate?

MRS GINIOTIS:  I am not sure how I say - how I should say

in English. That copy not represent exhibit first.

Secondly, that copy, it is impossible to read.

HER HONOUR:  Well, we all have to cope with those difficulties

every day.

MRS GINIOTIS: I understand, honourable Your Honour, but this is what our

chance and the other evidence which I have, it is

relating to that exhibit.

HER HONOUR:  All right. Have you compiled all the documents

that are relevant?	What documents have you
presented to - - -

MRS GINIOTIS:  To Court?

HER HONOUR:  Yes. Have you compiled all the relevant

documents?

MRS GINIOTIS:	Yes, Your Honour.
HER HONOUR:	Where are they?

MRS GINIOTIS:  In Appeal Court?

HER HONOUR:	Yes.	In this Court, for this Court.
MRS GINIOTIS:	Yes, Your Honour, affidavit.	When I file

HER HONOUR:  I am not interested in affidavits. All the

documents for the application for special leave to

appeal?

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Giniotis

MRS GINIOTIS:  I make - at that time I make affidavit

and annexed documents and should be in the Court

Registry because I have copy here, you know, these

documents.

HER HONOUR:  They are the only documents you want to be

put in the papers, are they?

MRS GINIOTIS:  But also include all which was in index

made in Appeal Court. I refer to my affidavit

but in affidavit on the 10th, solicitor- respondent

solicitor- referring that was not filed, not

prepared my index which I have with stamp.

HER HONOUR:	Have you prepared an index in this Court?
MRS GINIOTIS:	But in this Court I not prepare - I only file

documents which should be, go with that, but about

missing exhibit which stop me.

HER HONOUR:  Are all the documents ready for your appeal?

Have they been compiled by you?	Remember on the
last occasion - - -

MRS GINIOTIS:	Not in form index but - - -
HER HONOUR:	Well, why not?
MRS GINIOTIS:	- - - in all affidavit because at that

time I did not know how prepare that - I put like

affidavit.

HER HONOUR:  Now, Mrs Giniotis, one month ago I said if

you have not taken steps to have all the necessary

documents assembled by today the matter would be

struck out, right?	Now, are the documents
assembled?

MRS GINIOTIS:  It is, Your Honour, it is all documents

with- annexed with affidavit in file in Court

when I make application.

MR CHAPPLE:  I wonder if I could say something that may or

may not assist, Your Honour? As Your Honour can

see since the last occasion there have been two

further affidavits filed on behalf of the respondent indicating documents that have been forwarded by the

applicant and Mrs Giniotis. Those documents,

as far as we are aware, are the documents that

were mentioned before Your Honour on the last occasion. The Department, on looking through

its own files found, for reasons that escapes

it, those copies, and they were forwarded immediately

that they were found. At the same time - and this

would take some short time to take Your Honour to

it - but at the same time the proceedings in the

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Giniotis

earlier courts were looked at and the documents

were, of course, not contracts that were the subject of the proceedings

that were the subject of proceedings before contracts of various dates

in the Land and Environment Court or, indeed,

in the Court of Appeal. That led the Department to spend some more time in an attempt to try and

trace the history of the matter and that has

resulted in discovering that, in fact, there are,

in effect, two matters that were proceeding, one

in the equity division of the supreme court and

one which is the subject of the purported application

for special leave before Your Honour in the Land

and Environment Court.

When we looked with more care then at the

history of the matter it became clear, on our

reading of the documents, that the contracts for

sale that have been mentioned before Your Honour

have no bearing whatsoever on the Land and Environment

Court matters or the Court of Appeal judgment that

is the matter that, of course, concerns the

application for special leave before Your Honour.

Those two judgments, Your Honour, are the documents that are annexed to an affidavit that was filed

because it was discovered, of course, that they

were not before Your Honour as they - or at least

the Court of Appeal judgment should have been before

Your Honour and annexed to the application for

special leave, and they are attached to the

affidavit of Lynden Andrea Broune of 21 December.

Your Honour can see there is a two-page affidavit

and a rather lengthy list of - lengthy pages.	I
had another copy of that, Your Honour, it was
filed.	I do not know whether it has made its way

to the - it was filed and, of course, served.

HER HONOUR:  Yes, 21 December?

:MR CHAPPLE:	21 December, yes, Your Honour.
HER HONOUR:	Yes, I have that one here.
:MR CHAPPLE:	The reason I mention those, Your Honour, is

because it was as a result of our inquiries that

we believe we have come to the end of the attempt

to put the jigsaw together. I do not say that

with great confidence, Your Honour, but I think

we have come to that. If I could just take

Your Honour firstly - and hopefully this will not

take long, Your Honour, but the judgment of

His Honour Mr Justice Cripps, or the Chief Judge

of the Land and Environment Court, of 7 June 1983 -

does Your Honour have that?

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Giniotis

HER HONOUR:	Yes, that is annexed to it.
MR CHAPPLE:	The five-page judgment.  As Your Honour can

see the judgment is headed between - well, headed

with the surname Giniotiene who I understand,

Your Honour,is the late mother of the applicant,

Mr Giniotis. The respondent, that is, the first

respondent there, the director of the Department

of Environment and Planning is, of course, the

forerunner of the present respondent, the director

of the Department of Planning. The other that

is referred to there, Your Honour, is Mr Giniotis

and that has come about - Your Honour would see

from a reading of the judgment - in a rather

curious way. I hope I can surmnarize it in this

way, that some time prior to the Land and Environment

Court proceedings there were proceedings in equity

in relation to the property, the subject of this

betterment tax.

Those proceedings were between Mr Giniotis

and his mother, who were the joint owners of the

property, and a company that is referred to in the

judgment as United Marker Pty Limited. Could

I surmnarize it perhaps this way, Your Honour, that

the subject of proceedings in equity led to

United Marker indemnifying Mr Giniotis and his mother, because they were the purchases of the

property, for this betterment tax. The proceedings

were then taken by the company, United Marker,

in the Land and Environment Court to have this tax

reviewed, as was the statutory right. Those

proceedings, it seems, were taken without the

consent of Mr Giniotis and that is referred to

in this judgment.

As a result His Honour, when he allowed the

appeal to the extent that interest was reduced on

the bill, specifically made that order at the

request of two parties, Mrs Giniotiene and the

director of the Department of Planning. Your Honour

will see that on page 3 at paragraph 2. After

summarizing these proceedings in equity, His Honour

refers to Mr Giniotis' view that he has asked

His Honour not to make the order, that in effect

Mr Giniotis was asking His Honour to, in a way,

try and intervene in the equity proceedings which

were still proceedings and His Honour, as a result

of that, made no order that affected Mr Giniotis.

In fact, Your Honour will see on pages 4 and 5

he specifically refers to the fact that the

matter is not made, or the decision that he made,

is not a matter that is to have any affect on

Mr Giniotis. If I could refer Your Honour there

to the last paragraph on page 4 where His Honour

refers to his conclusion that:

Mr Giniotis ..... interest in these proceedings

is in no way prejudiced by the making of this

order.

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Giniotis

And then His Honour went on to make orders

on page 5 which resulted in, Your Honour, the

original amount of betterment tax being confirmed

and the statutory interest amount reduced leading

to a bill, for want of a better expression,

remaining of $14,000.

HER HONOUR:	Mr Giniotis having ceased to be an appellant?
MR CHAPPLE:	And mysteriously, Your Honour, and I cannot

explain this.

HER HONOUR:	And having become a respondent?
MR CHAPPLE:	A respondent.
HER HONOUR:	And seeking no order.
MR CHAPPLE:	Seeking no order and, indeed, Your Honour, no

order being made.

HER HONOUR:	Yes.
MR CHAPPLE:	Now, it is that judgment - and I hope I am

not labouring this, Your Honour, but it is that
judgment, of course, which purported to be the subject

of the appeal that is in the three-page judgment

which follows of the Court of Appeal of 16 September 1985.

Now, on the first reading of that judgment some

time ago, Your Honour, I confessed I had some difficulty

following it. It was only after this rather lengthy

dredging through papers that what is clear from

the judgment, in the first judgment of His Honour

Mr Justice Hope - and if I can just refer Your Honour

there to the top of page 3 and the paragraph which

begins there, Your Honour, "In my opinion". After

referring to the grounds, or the supposed grounds

of appeal, His Honour makes the finding that:

In my opinion none of the grounds contained

in the notice of appeal against

Mr Justice Cripps' decision challenges in

any way the correctness of that decision.

Now that, with respect Your Honour, is clear

when one reads the three grounds that are

recorded by the court on page 2, none of them

at all refer to that judgment of His Honour.

That was the one that I just referred to resulting

in the payment of $14,000. At the same time,

Your Honour - and I will not hopefully go off on

a tangent too far - equity proceedings were still

continuing in relation to the property unrelated

to betterment tax or anything to do with the

Land and Environment Court. The position ultimately

was - and this is the reason that may not appear

clear on its face - why that same affidavit,

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Giniotis

Your Honour, of 21st - sorry, it is a further affidavit, Your Honour, of 10 January 1989, was

filed by my instructing solicitor. I have a

copy of that also,Your Honour, if Your Honour

just - - -

HER HONOUR:	No, I have that, thank you.
MR CHAPPLE:	That briefly, Your Honour, f'efers to - if I could refer to

it this way -clerical matters, except paragraph 4

annexes a copy of a document which during this

last month's search for documents and other

material to forward to Mr and Mrs Giniotis

resulted in the Department finding by a rather

lengthy procedure that the $14,000 had been paid.

Now, that amount was paid it would seem either

by the company United Marker, perhaps, for a
cormnercial decision which I can imagine but perhaps

will not specify, to have the property and the access to it, or as the result of other equity

proceedings which perhaps I will not go into in

great detail, but involved Mr Giniotis as one of

the parties being ordered to pay part of that

money or part of the money from the purchase price,

in fact, was retained by the court. So the end

result is clear, Your Honour, that by whomsoever,

in December 1983 approximately six months after

Mr Justice Cripps' order, that amount was paid.

To try and make some sense out of the matter,

Your Honour - and I do not know whether this assists -

my instructing solicitor and I - spent some hours,

I might add, constructing a chronology which for
want of a better word, Your ffonour, in our view, goes into

matters that are irrelevant, to do wicn equity proceedings, but perheps give an indication of

where the matters almost meshed but never did.
I raise those matters - and I have copy here,

Your Honour, and I have a copy for Mrs Giniotis,

it was only completed this morning. It is rather	lengthy, Your Honour, and I will not perhaps go
with - well, they start in 1972 as Your Honour can see. That is the land, the subject of
the contracts, that Mrs Giniotis was after, that
is the land that was the subject of the betterment tax assessment in 1972 by an officer of the
Department under the LAND DEVELOPMENT CONTRIBUTION
:MANAGEMENT ACT. The whole thing went into limbo
for some time. At the bottom of page 2 at
paragraph 4 Your Honour can see that there was
an attempt to go one way to get it back, by way
of district court proceedings, and they were stopped.

all through it. It lists various matters to do

In 1981,about that time, the question of whether

or not the contract was going to be enforced was

pursued by the purchasers or the prospective

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Giniotis

purchasers, United Marker - completely unrelated,

of course, Your Honour, to the Director of Planning

who has got nothing to do with those proceedings

and never did. In paragraphs 5, 7 and 8 summarize

some of those proceedings which simply did this,

Your Honour, that they substituted a contract in

1981 for the contract in 1972 and were continuing

attempts by the United Marker Company, it would

seem, to try and get access to this property.

Now, paragraph 6, Your Honour, and paragraph 9

are the insertions there where the betterment tax

appeal, if I could use it that way, was undertaken.
Paragraph 9 simply reflects what happened.

Paragraph 10, Your Honour will see that again,

completely unrelated to the Director who was not

a party, further proceedings were going on in

equity to do with this land, that had nothing to

do with the betterment tax question at all, it

was never raised at all. On 30 December 1983,

on the last page, paragraph 11, Your Honour can

see that the matter which I raised before, the

amount was paid. Inquiries have been made,

Your Honour, to try and establish exactly who

that was by.

Paragraph 12 refers to the fact that in

proceedings - and we are not able to specify which

judge of the equity division it was, Your Honour,

simply because the records were hard to obtain

as our search got more and more frenzied. Part
of the money was ordered to be retained, that is,
part of this money by the Equity Court and it

would seem, with respect, to the applicant in

this Court, Your Honour, that if any appeal was
to be mounted at any stage that was where it was

supposed to be, it was not taken. The Department's

view is, Your Honour, that - and I am instructed to

say this to Your Honour and to Mrs Giniotis - as

a result of the proceedings last month the

Department's officers and the Department's heads

were concerned at the suggestion of injustice,
which was the expression I think used, that would

reflect on a government department being a party

in this Court. It is a result of that suggestion

that as many attempts as possible were undertaken
to get documents to the applicant and this has

led to the matters that have come to light in the

chronology coming to light.

Now, the end result of it, Your Honour, is

that the Director takes the view that looking then

at the matters before Your Honour there is a judgment

in the Land and Environment Court which, of course,

Your Honour is not immediately concerned with, which

said certain things had to be done. An attempt

at an appeal - perhaps I can use that expression -

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Giniotis

was made in the Court of Appeal. That was dismissed.
An affidavit, ostensibly in support of the application

before Your Honour, does not refer to matters that -

does not raise grounds on which the judgment sought

to be challenge~ does not specify any questions of

law or, indeed, give any reasons why special leave

should be granted. It is on that basis, Your Honour,

that looking at the Director's S1..lIIIIDI1S, the Director

has taken a view that Your Honour should be asked

to take the first of the alternatives and to strike

the matter out, that there are no grounds, if one

looks backwards in time, because there never were

any. Those are matters which the Director is

concerned to have put before Your Honour.

(Continued on page 26)

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Giniotis

MR CHAPPLE (continuing): There are more details that I could

go into, Your Honour, and I am not sure that, with

respect, it would assist.

HER HONOUR:  I do not think so at this stage.

MR CHAPPLE: If I could say this, Your Honour, the detail is

enormous and I could spend the rest of the day touching

on it, Your Honour. Thank you, Your Honour.

HER HONOUR:  Yes, thank you. Yes, Mrs Giniotis.

MRS GINIOTIS:  Your Honour, if I can refer to affidavit of

10 January, the respondent.

HER HONOUR:	This is your affidavit?
MRS GINIOTIS:	My affidavit dated on the 11th.
HER HONOUR:	The one I have is not dated.

MRS GINIOTIS:  On 11 January 89. I refer to answer on 10 January

respondent affidavit. In respondent affidavit clear

say: that ._never- was index that was prepared. I say in

my affidavit that was prepared and I tried, did what

I can in my action and I have copy, was filed and that

copy appears in Appeal Court with my application as

document and was served by me, apartment. If I can

give copy.

In fourth paragraph my affidavit I say on the 21st -

affidavit respondent, to paragraph 6 in regard

letter "H" annexured in regard name Giniotis Boleslovas -

in this letters appears that Mr Boleslovas who are dead

in 66 appears in action which was in 76 started and in 81.

I like take notice that this is impossible because

this person is dead in 1966 and I attach	annexure
certificate "A" in my affidavit. In iourth
paragraph	. my affidavit I say that I appreciate

for those copies but those copies not from exhibit

which was in proceedings Equity Court and was

subpoenaed by Land Environment Court with all file

equity.

In the fifth paragraph mine I refer to second

affidavit 81, sorry, 81 December, respondent.	I say
that:

proceedings referred to in that pargraph

were not the first ...... involving the

Applicant and the Respondent herein. The

first proceedings were in ..... District Court

which my affidavit filed on 15 December are annexured -

Statement of claim from district court and was already start action before was property sold, before was

subdivided, was the amount asked to be paid. And also

I attach here from, in my affidavit, 15 December,

State Planning authorities, 15 March 74, that say we are

not responsible. This application, this was made

26

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Giniotis

and sent to us in 15 March 74 and I refer to this,
the same proceedings, which that particular document

would say that we are not responsible. From district

court after was case moved to Equity Court and still

continued this contribution demands and also after

without authority owners was started application to

tand Environment Court and such complex now matter

that without first contract which marked exhibit it

is impossible what legal people advise me. And said

does not matter how hard will be,· go and demand

because they clear- was said that we are not responsible.

F~r debt only we agree go to court for specific

performance and new contract, otherwise, we will not

deal with those purchasers because it was the other

purchasers.

In court, say that affidavit - say that only 14,000

was collected, automatic collect from our contract.

Not 14,000, 24,000, because 14,000 was from Land

Environment and in regard this matter was made order

in equity and was collected. In equity order was made

on 16 June 83. In fifth pargraph say that 7000
and plus 3000, 10,000, was clear say unleased, which

was referred to equity registry, that was 14,000

Department of Environment. Contribution should pay

cheque from our contract and 10,000 to equity in regard

the same apartment. 24,000 out of contract.

In this situation, because already it is money

collected from us, legal people advise the best that

we should go because nobody - without court action,

without court introducing all this mess, never were

going to get back those money.	Mr Giniotis owner
was since 52 that property - - -

HER HONOUR:	Those issues, Mrs Giniotis, arose in the equity proceedings. That was not the issue before
Mr Justice Cripps.

MRS GINIOTIS: I have appeal which was appeal in Appeal Court

from a judge, Justice Cripps - I am sorry, not

correctly - and we say that because was orders made

we clear say in the second paragraph our appeal which

are in registry filed byrre with all documents, but

not in index form but in affidavit form, attached

all those documents. This appeal leave - to be

prepared this proper book, I only need that exhibit,

c?nd I kindly ask this Court, as already was introduced

this briefly matter that it is really complex matter,

was from one court moved to the other court with

subpoenaed documents and I appreciate if Court

understand I have no choice. I must clarify with

these ei"rors which was provided by lawyer who acting

at that time, because in Equity Court, in regard this

contribution, was made order against us in regard to

the contribution and by letter which are referred in

27

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Giniotis

Land and Environment documents from public solicitor.

It is in those documents it appeared in the registry

with my affidavit too. I need only that one exhibit.

HER HONOUR:  Mrs Giniotis, I asked you this on the last

occasion and I ask it now and I ask it in terms in which

you must take seriously. The matter has, to some

extent been clarified and the question which is

crucial and which you must answer is this:	how is
that contract	relevant to the appeal from the

decision of Justice Cripps?

MRSGINIOTIS: Well, it is relevant - I believe I was in court

when - in Land and Environment - judge made those

orders, that order, and was many discussions, and

I have transcript and clear see that was all the time

discussions how, which way, we should take application

on Mr Giniotis' behalf and put - review this indenmity

on him.

HER HONOUR:	That was in issue in the equity proceedings. not in issue before Justice Cripps?	It was
MRS GINIOTIS:	No.	I have transcripts.

HER HONOUR:  Yes.

MRS GINIOTIS:  And it clear ..... was start proceedings; we

was called by subpoena, Mr Giniotis was called by

subpoena. And we discover - I referring in my

affidavit - we discover only in court that was

l was proceedings without Mr Giniotis knowing.

application made on the first file on March 82.

HER HONOUR:  I will ask you once more. How is the contract

relevant to the decision of Mr Justice Cripps?

MRS GINIOTIS: Relevant in that contract was say that not

responsible for tax.	On that ground an agreement
was new made in equity and only on those grounds that

he will be not responsible, he agree. Sign in front judge agreement and new contract that he will be not

responsible and they promise him and he sign in front

judge and judge took in his hands that contract.

Now, this is :in 81, 22 October. In February 82 they

start demand irrevocable authority which I referring

again in my affidavit, in affidavit 15 December.

And this is what is important: that they agree and

after they move -

HER HONOUR:	Who is "they"?
MRS GINIOTIS:	The purchasers agree.

HER HONOUR:  They are not parties to this proceeding. They

have got nothing to do with these proceedings.

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Giniotis

MRS GINIOTIS:	But they appear and start action with the Department of Environment and how was start action
what we now see from all this applications from all
transcript which - that they only for that reason
to be a review inderrmity.
MR CHAPPLE:	I wonder if I could just interrupt, Your Honour? The matter that M"rs Giniotis is refeo:-ing to
in October 1981 was overtaken by events in 1983
that are referred to in paragraph 8. They are in
the same division,· that His Honour Mr Justice Rath
waived that inderrmity because of Mr Giniotis'
refusal to co-operate in, amongst other things,
providing the certificate of title and other matters.
That judgment is included in documents that Mrs Giniotis annexed tc her affidavit of 15 December last
year.  As Your Honour ~ill recall, there were a lot of
documents there and one of those is a five-page judgment by His Honour Mr Justice Rath where that is done. It does not have an annexure as such, Your Honour, but it is about two-thirds of the way
through after annexure "Q"and that was one of the
matters that was reversed.
HER HONOUR:	Yes, thank you.
MR CHAPPLE:	I did not mean to interrupt, Your Honour, but

that is not clear.

MRS GINIOTIS:  Your Honour, in judgment, 15 March 83,was referred

by judge in equity about original exhibit. This is

what important because in affidavits in Land Environment

was referred only draft contracts which was before

company was registered. This was confusing because

I have copy of when was registered; was registered 14 February 72 and that contract was signed on the 25th but before was draft undated contracts which are

referred in affidavits and it is affidavit referred

with documents in the High Court Registry.

Now, everyone want denied that exhibit and everyone

want convinced that this is not important but only

lawyers - - -

(Continued on page 30)

SlT7/4/VH	29	13/1/89
Giniotis

HER HONOUR:	Mrs Giniotis, this is the third time, it lS up to you to tell me why it is important.
MRS GINIOTIS:	It is important in -
HER HONOUR:	Why it is important in this case, which is an

appeal from the Court of Appeal's decision dismissing
an appeal from the decision of Mr Justice Cripps?

How does it bear on his decision? And do not forget

that what was before Mr Justice Cripps was an

application, perhaps an appeal, was it - - -

MRS GINIOTIS:	Yes, I want show that
MR CHAPPLE:	An appeal, in fact, Your Honour.
HER HONOUR:	An appeal.  It was an appeal in which he reduced

the total amount payable and in which - that before
there was any appeal to Mr Justice Cripps there

was a requirement for Mr Giniotis to pay $18,000

and after Mr Justice Cripps had looked at it there

was a liability to pay $14,000, or thereabouts.

MRS GINIOTIS:  Honourable Court, I now cannot understand how

can I answer because this is application was only

for waiver, not reduce, only for waiver - - -

HER HONOUR:  Mr Giniotis made no application in the end.

He was not - in the end, the only application that
was before Mr Justice Cripps was the application of

your husband's mother. That, in the end, was the only

application.

MR GINIOTIS:  But on her - made judgment too. She agree and still

judgment care that she responsible and my husband not

sign this authority and still responsible and for that

it is irportant, by lawyers advise that we should

get this original, that he was never responsible

on that property.

HER HONOUR:  That was not an agreement with the Department.

That was an agreement with United Markers. Your

complaint, if any, is with United Markers, is that

not right?

MR GINIOTIS:  But Uepartment appear in equity and demand

contribution and was made orders on us to be

paid to them, part of, and also in Land and

Environment - - -

HER HONOUR:  That is to do with the equity proceedings.

It is nothing to do with the Land and Environment proceedings.

MRS GINIOTIS:  In Appeal Court, appeal judge keep from Land and

Environment judgment and were referred about that contract, but because - - -

S1T8/l/HS	30	13/1/89
Giniotis

HER HONOUR:  The fact that you referred to it does not make

it relevant.

MRS GINIOTIS:  But this was for that missing exhibit

we have now proof. I file - I have copy. I file

index and was so quick that this is not relevant, we

must go to High Court and ask leave to appeal because

not proper what in judgment say that not proper

preparation document, but this document was prepared at

lawyers.

HER HONOUR:  What the Court of Appeal was concerned with was

your notice of appeal and whether it pointed to any

error in the judgment of Justice Cripps because,

on its face, it seemed to be dealing with the

equity proceedings and they said it did not nominate

any error on the part of Mr Justice Cripps, therefore

the appeal should be struck out, and that is what

you wish to appeal about to this Court. You cannot,

on these documents - maybe, I do not know what

the situation is otherwise - but you cannot in
this case agitate the matters that were in the

Equity Court.

MRS GINIOTIS:  But we not concerned in this Court represent

equity. We only relevant documents if necessary will

be, but His Honour say in Land Environment Court was

not such documents. All - - -

HER HONOUR:  Nobody is saying there were no such documents.

The question is how are they - this is the last

time I will ask it - the question is how is the

existence or even the contents of the document in any

way relevant to the correctness of the decision made

by Justice Cripps or the correctness of the decision

made by the Court of Appeal?

MRS GINIOTIS:· My answer is one, that because I do not believe

that judge can make such order if he saw all

documents from file that was exist such contract.	I do not believe, but I believe only one because	in Land Environment was referred different only
draft contracts and to my understanding, because
I was in court and I heard this case -and I understood
that not all documents, I not believe that judge
can make such order if he see that exhibit which
was marked and which was no responsibility for
any contribution or management tax on that land
that time until was not made orders in equity to
be review this. The Land Environment Court is- in
affidavit it say that, talking about draft contracts,
not about original which was tendered as exhibit, and should be in High Court Registry with my all
documents which I big packet those transcripts which was on subpoena called Mr Giniotis on
11 October 1982 transcript and after continue the
other on 25 March 1983, and before one more.

SlT8/2/HS	31	13/1/89
Giniotis

This affectSvery much us if not we get that

document, but also I want remind in my affidavit

what was said that was on file signature who collect

that exhibit and this is what important. This is

why from the same department two different letters.

In 1985 one decision, one was made answer that

never was tendered to court, on the 17th88 letter

say that it is and it is signature that was collected

after 10 days. Once start they proceedings in the

Land Environment start playing with this irrevocable
authority demand~, to be revoke indemnity, and

for that I have no choice. I must still - this

is my chance one, because I have child, I must look

the child. My husband has no more chance because he

is not well and all this years since 1952 he has

this property and he pay rates, loans to that

property and now he sold, contract was signed in

court for 150,000 and to him give 51,000 and good-bye

say. If you want more money you got to court.

They took from~ automatic from the case sent

letters that those money will be in list from

registry, that those cheques will be not to us go, only to officers and we do not know why this. For

that I should continue ask to be investigate.	I was
paralysed, then I heard few days that someone from
authority said'your husband loan to government
body money'.'	Never was heard before and my husband

do never had loans from anyone, only from bank

which was repaid - - -

HER HONOUR:  This has nothing to do with this matter,

Mrs Giniotis - - -

MRS GINIOTIS:  I understand, but this is what -

HER HONOUR: - - - and it is not in the least bit responsive

to the question I asked. Is there anything you

wish to say in opposition to the application made

by the applicant, anything further, that the matter

now be dismissed for want of prosecution?

MRS GINIOTIS:  I say that - I refer in affidavit that some

errors are provide because in their affidavit

say that never was action take before, Land and

Environment,was action in district court and was already made demands, but in affidavit was referred

that no, we was served on 9 January 1981 and

we have affidavits. I have affidavits which the

Department - I have copy affidavits from the

Department with this matter, that they demand

and was property nothing to do yet, not subdivide

not sold.

Can I ask one answer get from Department

representatives? On which documents there was

demand in district court - - -

SlT8/3/HS	32	13/1/89
Giniotis
HER HONOUR:	That is not relevant.	You cannot ask that

question. That is not relevant to these proceedings.

Mrs Giniotis, you have deliberately strayed over

the full range of all this quite remarkable litigation.

You have refused to direct yourself to the issue being

the proceedings before Mr Justice Cripps and then the

proceedings before the Court of Appeal. You cannot

ask any questions about any other proceedings.

MRS GINIOTIS:  I apologize, Your Honour. I still

continue ask to· be give opportunity.

HER HONOUR:  You have had plenty of opportunity, have you

not? You have had a lot of opportunity and you

have not answered the question about what you have
done to assemble the documents which I asked some

time ago.

MRS GINIOTIS:  I did, I receive answers but if those answers

is negative honourable Your Honour what can I do?

I must go -continue to be somehow - Your Honour,

I asking give me opportunity because - - -

HER HONOUR:	To do what?
MRS GINIOTIS:	Documents in this file in registry with

application which I going - if this is possible

that we have rights to make action, to continue

action without exhibit, but I do not know what

choice we have. My lawyers advise that will be

hard to prove, only depend what judge will be

decision, or believe, or not. It will not

represent original document which we not ..... .

on that , CONI'RIBUITON AND MANAGEMENT ACT.

I many nights not sleep and I still go to Canberra

and I must get answers from them because State

authority is refusing me assist.	They sending me
to private solicitor.	Private solicitor sending

to authorities because was represented by

authorities, legal people, and private solicitors do

not want involved in these matters, and I quite

spend money in regard this preparation, but what

can I do? I have no choice.

Honourable Your Honour I asking let me give

this opportunity because I must go through this.

HER HONOUR:  You were given an opportunity one month ago

to assemble the documents.

MRS GINIOTIS:  But if I get answer that day not going

involved and should private solicitor do this,

and private solicitor not - - -

HER HONOUR:  You have not done anything to assemble the

documents, have you?

SlTS/4/HS	33	13/1/89
Giniotis
MRS GINIOTIS:	I have letters.	I made investigation.

I had letters from - - -

HER HONOUR:  What have you done about getting the documents

into this Court?

MRS GINIOTIS:  I only not done prepare index, but all

documents it js in registry with my application

and why I - that time was different gentleman

was registrar and say, "I.ook,you go to legal people

and let prepare- for you this", but I file all packet

documents, but present time I still was hope that

I get assistance from attorney	but they now deny
it absolutely me.	They not going involved in this

matter. Now, from Premier's office I not yet

receive answer but now I cannot rely because I

have answer clear say from attorney that they not

going with letter which was on 4 January referred

and now I said I must go to Canberra with all my

documents and show this clear what about because I

cannot understand myself if errors was provide in

order and on somebody collect on that man who nothing

to do with that property and were without money,

we sold property, no deeds, no certificate of titles
which should be return our houses, still somebody

holding us in the court safe for some reasoq we do

not know. If I not proceed with that application,

TS	no way that I can get those certificates which
nothing - - -

HER HONOUR:  Mrs Giniotis, would you confine yourself to

this case. I do not want you to go ranging over

all the proceedings and all the matters at issue.

Confine yourself to this case. If you do not

confine yourself to this case I will have to take

other proceedings.

MRS GINIOTIS:  Your Honour, I apologize. I not lawyer.

I only want ask give me opportunity because I do not want unsuccessful in this Court. I must get

answers from and get this exhibit to be.referred

I know who collect that exhibit and I must demand	to index and now I have letter from attorney that
somehow to be return on file. Last time honourable
Court I asking to give me opportunity and adjourn
that matter. I must get back this exhibit which
maybe today I cannot prove to be because I have not
that document, but that document only one say that
were not responsible. On that document we was
appeared in courts to be cancel one, that document
and on the same conditions go to the other agreement. Thank you, very much.

HER HONOUR:  Thank you. Yes, did you wish to say

anything, Mr Chapple?

S1T8/5/HS	13/1/89
Giniotis
MR CHAPPLE:	Yes, two matters, Your Honour.

One matter that is raised is that the Department

was party to the equity proceedings. That is,

I am instructed, not so at all. Your Honour, at

no stage has the Department been in the equity

proceedings. Secondly, Your Honour, the indemnity

that Mrs Giniotis is referring to is the same

indemnity that is the subject of the judgment of

His Honour Mr Justice Rath that is the annexure

to her own affidavit that is, amongst other things,
the subject of that judgment is the quashing of
that, or removal of that indemnity, and that
occurred, as Your Honour can see from the dates
of the various judgments, approximately three months
before the decision given by His Honour Justice Cripps,

and they are matters that we see as not being correct

in the material that Mrs Giniotis is putting before

Your Honour. Thank you, Your Honour.

HER HONOUR:  Yes, thank you. I have noted those matters.

I am satisfied that neither the existence nor the

terms of the contract which Mrs Giniotis has

referred to throughout these proceedings as the

missing exhibit is in any way relevant to the

correctness or otherwise of the decision of the

Court of Appeal which is. sought to be the subject

of an application for special leave to appeal to this

Court.	In the circumstances there will be no
further adjournment.	I propose to make an order

in these terms: Mrs Giniotis has seven days in

which to file an index to the appeal book, which

index will make no reference to the contract, the
terms of the contract or the missing exhibit and

has a further 10 days thereafter to file and serve

application books.

In default of any one of those matters being done

within the time specified the matter will stand

dismissed for lack of prosecution and Mrs Giniotis,

as respondent, you will pay the costs of the

Department of the Environment in respect of today's

proceedings and the proceedings on the earlier

occasion,and I certify for counsel for the

respondent. The Court will now adjourn.

AT 1.46 PM THE MATTER WAS ADJOURNED SINE DIE

SlT9/l/HS	35	13/1/89
Giniotis