Goldberg v Maclellan

[2001] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M79 of 2000

B e t w e e n -

DAVID GOLDBERG

Applicant

and

SUSAN ALEXANDER MACLELLAN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001, AT 2.40 PM

Copyright in the High Court of Australia

MR D. GOLDBERG appeared in person.

MR G.J. MAGUIRE:  If the Court pleases, I appear on behalf of the respondent. (instructed by Office of Fair Trading & Business Affairs Victoria)

KIRBY J:   Yes, Mr Goldberg.

MR GOLDBERG:   This is my application, your Honour, and this is an application for special leave.  The application on appeal against the injunction made at Melbourne Magistrates Court by Magistrate Mr McLeod.

KIRBY J:   Yes, we know that, we have read the written submissions.  We know that it started before a magistrate, it went to the Master, it went to Justice Beach, it went to the Court of Appeal and now it is here.  It is only in this Court if you can get special leave which requires you to show some matter of importance or important principle or some miscarriage of justice in the legal sense that warrants the grant of special leave.

MR GOLDBERG:   Do you require me to read the injunction, as it is or just - - -?

KIRBY J:   No, we have read all the papers.  This is your opportunity to say orally anything that emphasises any of the points that you have made in your written submissions because we have read all those.

MR GOLDBERG:   Okay.  In that case, I wish to refer the Court to page 1 of my application book, marked page 88, which is the copy of the transcript of the proceeding before the magistrate and when Magistrate Mr McLeod categorically says:

You can’t bar his living.

He has to earn a living -

before he granted that injunction.  The magistrate was totally opposed to the injunction and he resisted the fact of making that injunction.  He has only made that injunction after leaving the court on four occasions and that is only the hearing to the next day.  The purpose of the objective of that injunction, it was not any licence, it was simply to deprive me of basic human rights to earn a living and deprive me of that right to own and run my own business in order to force me out of the country.

KIRBY J:   You say all this but, you see, the Parliament of Victoria has enacted the Motor Car Traders Act.  It has done so, presumably, out of a feeling that this is an area of operations where consumers need protection and it has instituted a system of licensing of people and it has provided a definition which included the deemed motor trader and all of that is in the interest of what the Parliament of Victoria thought was necessary to protect the citizens and consumers of this State.

MR GOLDBERG:   I can understand that, but why should I need a licence to sell one car?

KIRBY J:   They have taken the view that that is the way they will enforce the provisions of their Act.

MR GOLDBERG:   You know, we are not talking about selling in a car yard, trying to sell cars to people, on that basis is without the licence, I did not do that.  What the problem ‑ ‑ ‑

KIRBY J:   It is one car, but one car at a time.

MR GOLDBERG:   That is correct.

KIRBY J:   You had sold 12 cars in 12 months.

MR GOLDBERG:   That is correct, so I sell one car ‑ ‑ ‑

KIRBY J:   That is making you look a bit like a motor car trader.

MR GOLDBERG:   The issue is who is going to decide how many cars should I have in a period of 12 months?

KIRBY J:   The Act lays down a scheme.  If you sell more than four, you are deemed to be a motor car trader, but you can still get yourself out by proving that you are not, and that was the matter before the magistrate and the magistrate was of the view that you had not established that you were not.  Therefore, you were deemed to be.

MR GOLDBERG:   Well, not necessary.  What I put to your Honours is that the magistrate did not want to do injunctions.  He said I have got the right to earn a living. 

KIRBY J:   Yes, but, Mr Goldberg, I said earlier to counsel, “Get real”.  Now, 12 cars in 12 months is looking like a dealer.  Get real.

MR GOLDBERG:   Well, it may look like a dealer, but let me go further, there are Commonwealth laws which do address the issue as to the disposing of someone’s wealth.  In this case, the motor car was my wealth.  So if your Honour permit me to continue with what I have prepared, then your Honours make a decision by the end of the day.

KIRBY J:   You are entitled to your 20 minutes and we have to listen to it, but it does not seem realistic to say that you are not a motor trader.  Indeed, as I understand the written submissions, you accept all that.  You accept that the Court of Appeal has found that you are a motor trader and you raise now, in many cases for the first time in this Court, certain constitutional and other arguments that you want to advance.

MR GOLDBERG:   I did raise them before, but I thought you were going to ‑ ‑ ‑

KIRBY J:   Not entirely, you raised certain constitutional grounds and you raised the Equal Opportunity Act of Victoria. But for the first time in this Court, you have raised issues relating to the International Covenant on Civil and Political Rights, an ILO convention, and other provisions of the Constitution.

MR GOLDBERG:   That is correct.

KIRBY J:   So you are seeking for the first time to raise issues in this Court.  Normally we would not give special leave on that footing.

MR GOLDBERG:   Well, I put that in my written submissions when I prepared that last year and I indicated, the only problem I have got is that your Honour said that I did not present that before the Court of Appeal.  The problem is that the transcript given to me from the hearing has not been certified.  There are items which are simply missing from there and what I have said to the court and what the court said to me.  On top of this, this is how the transcript was given to me.  If your Honours will have a look at it, because I never seen anything like this, but you can actually take the paper and stick those words the way you want it.  So if we accept that this is a transcript, well, then I did not say anything.  But I do not accept that because it is not certified.  So how can I accept that?

KIRBY J:   These are the types of arguments that lay people tend to think are important, but the law has moved on from that.  We do not look at issues of that kind, these are pure technicalities.  We are looking now at the substance.  You raise objections to the Motor Car Traders Act of Victoria.

MR GOLDBERG:   That is correct, yes.

KIRBY J:   You are trying to argue issues of principle which you appear to have given away in the Court of Appeal and in your written submissions, and the only matter that you seem to be raising in this Court are the constitutional, federal statutory and convention bases.

MR GOLDBERG:   That is correct because what I am saying is – if your Honour permits me to finish what I have written down – what I am saying is that even if the State limits me to the four cars per year, in other words, I can have one car every three months, then there are federal laws which prohibit the State to do that and that is what I want to go and present it before this Court that this is what has happened to me, an injunction telling me that I can only own and dispose of four cars a year is simply illegal according to the Commonwealth law. If Your Honours read my submissions, I have referred to the Constitution 109 section which quite clearly says that if the “law of a State is inconsistent with the law of the Commonwealth”, it is “invalid”. That is what I put to it. In other words, if we take section 117 of the Constitution, it says that a citizen cannot be discriminated against or disabled, then that is what it is. I would be the only one in this country who would require a licence to dispose of my car, no one else does.

KIRBY J:   That section, important though it is, does not attach simply because there are differences between the laws of different States.  I mean, that is the very nature of the federal system, that there are differences between the different States of Australia on regulating the motor car industry or motor car trading.

MR GOLDBERG:   That is correct, but if I take your Honour to Street ‑ ‑ ‑

KIRBY J:   It is not subject to any disability or discrimination that would not be equally applicable.  You cannot read that up into saying that there cannot be any difference between the laws of the different States because that would contradict the whole system of federal government.

MR GOLDBERG:   No, I am not saying that it could not be a difference between the States.  There could be a difference between the laws within the State, I have no problem with that.  What I am saying is that if, for example, the State legislates abolishment of trial by jury, the Commonwealth will not allow to this, but that is inconsistent with the Commonwealth law.

KIRBY J:   I am not sure about that because though trial by jury is guaranteed to an extent in section 80 of the Constitution in respect of federal crimes, there is nothing there about State crimes and many matters which once were tried by jury in the States have been made triable only before judges or magistrates.

MR GOLDBERG:   But if your Honours look at, in Street v Queensland Bar Association in 1989, that is what one of the Judges who presided by this case has said ‑ ‑ ‑

KIRBY J:   Yes, we know that case.

MR GOLDBERG:    ‑ ‑ ‑ has made that point and that is what it is.  But if I be allowed to continue with what I have said, then I will address those issues.

KIRBY J:   You are entitled to say what you want within the 20 minutes, but I am saying what I want so that you will understand the matters that are concerning me.

MR GOLDBERG:   Yes, well, of course, what I am trying to put to this Court is why should I be the only citizen in this country to require the licence to sell my own car.  No one else does.

KIRBY J:   That is not true.  Any person in Victoria is subject to the Victorian law.  Your complaint is that you were able to do this in Western Australia and you have moved ‑ ‑ ‑

MR GOLDBERG:   That is correct, for 10 years.

KIRBY J:    ‑ ‑ ‑ to Victoria and you are not able to do it here without a licence.

MR GOLDBERG:   No, I was able to do that for 10 years, but because the circumstances which I have been persecuted by Australia Security Intelligence Organisation, they come to the conclusion after 20 years that the best way to get rid of me would be to deprive me of what I was doing, because I am a law-abiding citizen, I have not done anything wrong, so if I will not be able to do that, I would simply leave, either the State or the country, like I did in Western Australia.  That was the idea and that is what has happened.  I mean, if what your Honour is saying was correct, why did the magistrate on page 1 of my appeal book will say, “You can’t bar his living.”? “I am not going to do that.  The man has to earn a living”.  Now you keep saying to me that I cannot do it.  I did that for 10 years, no one has even sent me a letter. 

When I had a lawyer asking Office of Fair Trading about the licence in the beginning, they told him that this is not about the licence, it has got nothing to do with licence, and that is why I am here, because if it was about the licence, of course, we could come to some sort of arrangement, but that was not the issue and never has been.  Then, on top of that, if your Honours see the conduct of this matter all the way through the Magistrates Court to the Court of Appeal, your Honours would understand that this is not just a normal matter:  there are problems with transcript, there are problems with authenticated orders, there are problems with signature, nothing is signed, nothing is certified to be true copy, there are obstacles, I get harassed all the way, I could not get certain papers, and that is what it is.

KIRBY J:   What you think is harassment others will say is enforcement of the law of this country.

MR GOLDBERG:   If you think that enforcement of the law of this country is to come to someone’s house and knock his door off or damage his cars, well, then I will leave that open to – because that is the way I was harassed.

KIRBY J:   No, the law of this country and Victoria, the law has dealt with motor traders because you know the joke, “Would you buy a second-hand car from this person?”.  Why is that a joke?  Because many people have been taken down by motor traders, and that is why parliaments in this country, democratically elected, have enacted laws for the protection of consumers in respect of buying motor cars and they seek to bring against you because, as I see from Justice Winneke, he says that evidence was placed before the magistrate that:

in a period between March of 1997 and June 1999 –

you –

had advertised for sale to the public in The Age newspaper 25 different cars on some 59 separate occasions.

Now, if that is so, you are looking very much like a motor trader and to protect consumers, you have to comply with the law of this State, unless there is some constitutional impediment.

MR GOLDBERG:   Well, that is what I was trying to say, but, your Honour is trying to put a different perspective on what I was ‑ ‑ ‑

KIRBY J:   I am trying to explain to you why you have a difficulty getting into this Court.  I could just sit here quietly and say nothing, but it is important you should understand what your problem is.

MR GOLDBERG:   I understand that.  I have explained to your Honours my problem is that it is not about the licence because if it was about the licence, they would send me a letter and say certain things.  I never have been prosecuted for any offence with regards to selling a motor car, nor has there ever been sent any letter to me with regard to this matter.  What I was given just a complaint and I was taken to court.  So there was no, if you wish or if you like, warning which could say, “Look, what you do, it is not right” and I have been in this State for 10 years, I have been before another State for 10 years and non one has prosecuted me for what I was doing. 

KIRBY J:   The law in Western Australia may be different to the law in Victoria.

MR GOLDBERG:   Then that is what I came before this Court because Constitution 117 guarantees me that I should not be treated differently in this State.  This is one country is it?  I am a citizen of this country.

KIRBY J:   Not no difference; simply that it may not discriminate against you in terms of section 117 of the Constitution. It is a different point.

MR GOLDBERG:   But it does discriminate.  As you can see, it discriminated quite clearly.

KIRBY J:   It differentiates.

MR GOLDBERG:   Well, your Honour, let us say, you give me your motor car to sell, I cannot do that, but you give it to someone else, to your brother Judge which sits next to you, he can do that, I cannot do that, and if you say that does not discriminate against me, of course it does.  I mean, this is not the issue of setting up a car yard and offloading people’s cars and complete disregard for the law of the State, I did not do that, I never had ‑ ‑ ‑

CALLINAN J:   Mr Goldberg, if I went into the motor trading business, I would have to have a licence too and therefore I would be in exactly the same position as you.

MR GOLDBERG:   Well, your Honour, with due respect, I know hundreds of people who purchase damaged cars, they drive them, they sell them and no one has any problems, so the explanation there have to be something in it which affects me and does not affect the other people.  It is not the issue of selling a motor car for $5,000 or $10,000, as your Honour said, that it might protect the buyer.  The Office of Fair Trading has got nothing on it to show that when I sold the car, which I drove for one month, it caused some problems or some grief to someone who purchased that motor car.  In other words, further to what I have said, if that was the case, why the injunction which, if I take your Honour to the page 3 of the application book, why the matter was first brought against me as the Office of Fair Trading, Victoria.  That was the title which was taken against me and Assistant Commissioner of Office of Fair Trading and then the name of that lady.  That injunction by a magistrate was signed by him in the name of Susan Alexander MacLellan.  It has not been changed.  There was no application to court to change that, and on top of that,– I am running out of time, so perhaps I will bring that to your attention as well, on 3 October 2000, I came before the same magistrate, Mr McLeod and he told me there is no injunction.  He said “I have heard the case before you, but I have never made an injunction against you” and I think that is what he must refer to this page 3 of my application book because the matter was heard at a different case and under different name was that injunction signed.  So those are the issues and if magistrate made an injunction, why did he say to me that there was no injunction made against me?

KIRBY J:   But we can only deal with the matter on the record.

MR GOLDBERG:   Well, I am telling you, I could put that in affidavit, I am not manufacturing anything before you, and that is the issue and obviously I cannot go on any longer.

KIRBY J:   Yes.  We have had your written submissions and we are prepared ‑ ‑ ‑

MR GOLDBERG:   You have my written submissions and I have put it quite clearly why I should not be prevented from owning a motor car.  I cannot own the motor car at the present time and you have to understand this, that if I own the motor car I cannot dispose that car because ‑ ‑ ‑

KIRBY J:   It is not for your owning your own motor car that you got into all this trouble, it is because you put advertisements which were seeking to sell 25 different cars on 59 separate occasions.  That is looking awfully like a motor trader.

MR GOLDBERG:   But, your Honour, I do not want to tell you that those advertisements, some of them been exactly the same and some did not belong to me, so that is another issue, but this is the matter of facts, not the matter of the law and I do not think that you should listen to this at this point of time.  What I have put in my submissions is how the laws stand in this country.

KIRBY J:   Yes.

MR GOLDBERG:   How long do I have left?  I think that is it?

KIRBY J:   Yes, thank you very much.

MR GOLDBERG:   Thank you, your Honours.

KIRBY J:   The Court does not need your assistance, Mr Maguire.

MR MAGUIRE:   If the Court pleases.

KIRBY J:   The purposes of the Motor Car Traders Act 1986 (Vic) include the regulation of people who are “motor car traders” as defined and the protection of the rights of people who purchase motorcars in the State of Victoria. The Act was enacted by the Parliament of Victoria inter alia to protect consumers from abuse.  A scheme of licensing motor car dealers was introduced to that end.

To prevent evasion of the statutory scheme, section 7A(1) of the Act deems a person who buys, sells or exchanges four or more motor cars in any 12 month period to be a “motor car trader”.  It is still open to the alleged trader, who falls within that definition on that basis, to establish, under section 7A(2), that he/she was not carrying on the business of trading in cars.  Various exempted transactions reduce the ambit of the deeming provision of the Act.

As stated by Winneke P in the Court of Appeal of Victoria:

In relying upon the “deeming provisions” of s7A, the Director put before the Magistrates’ Court evidence which entitled that court to find that in a period between March of 1997 and June of 1999, the applicant had advertised for sale to the public in The Age newspaper 25 different cars on some 59 separate occasions.  There was also evidence that at all relevant times the applicant was not the holder of a licence to trade in motor cars.

The applicant does not now challenge the finding of the Court of Appeal that he was not licensed under the Act and that he traded in motor cars, although unlicensed.  However, he seeks to raise in this Court constitutional and other grounds of objection to his conviction under the Act.  He did not raise the proposed grounds before the magistrate at first instance or before the Master of the Supreme Court or before the single Judge of the Supreme Court of Victoria, Beach J, to whom he took his challenge.  His attempt to raise certain constitutional and statutory grounds for the first time in the Court of Appeal was rejected by that court within its discretion.

Now, before this Court, the applicant seeks to raise, in a special leave application, both the constitutional grounds presented to the Court of Appeal and further constitutional grounds and as well new objections under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and under the Convention Concerning Discrimination in Respect of Employment and Occupation and the International Covenant on Civil and Political Rights. Neither of these last mentioned conventions is expressly incorporated into Australian domestic law by local legislation. The constitutional grounds now relied on are said to arise under ss 71, 90, 92, 117 and 118 of the Constitution.

In essence, the complaint of the applicant is that he says he was able to carry on his business practice in Western Australia in a previous decade but now, having come to Victoria, he cannot do so without complying with the Motor Car Traders Act 1986. Assuming this to be so, and ignoring for the moment the procedural barriers to the late presentation of the new constitutional and federal statutory and treaty grounds, we are not convinced that there is any merit in any of them.

The fact that the Victorian Parliament has enacted a law on motor trading that is different from the law of Western Australia (assuming that to be the case) is not an indication of a breach of the Constitution. On the contrary, it is an illustration of the implementation of the federal character of the Constitution. None of the constitutional attacks on the validity of the Victorian law appears arguable, still less in proceedings where most of them were never raised prior to the hearing in this Court.

The application for special leave must, therefore, be refused.  The applicant must pay the respondent’s costs.

The Court will now adjourn in order to be reconstituted for the remaining part‑heard matter.

AT 3.04 PM THE MATTER WAS CONCLUDED