Gould v Day

[2001] HCATrans 42

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S280 of 2000

B e t w e e n -

STEPHEN GOULD

Applicant

and

JULIAN DAY

First Respondent

ALAN MANLY

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 FEBRUARY 2001, AT 2.32 PM

Copyright in the High Court of Australia

MR S. GOULD appeared in person.

MR J. DAY appeared in person.

MR A. MANLY appeared in person.

McHUGH J:   Yes, Mr Gould.  You understand that you have 20 minutes to put your submissions.

MR GOULD:   I do, your Honour, thank you.

McHUGH J:   A light will come on when you have about three minutes of your time left.

MR GOULD:   Thank you.  Your Honour, this is an application for leave to appeal and a stay in a sequestration order.  I have just been through the documents on page 34 and page 32 and I would like to suggest the wording on the documents “Application for Special Leave to Appeal” where it says “ORDERS SOUGHT”, on page 33, should be changed for the wording on page 35, that the orders sought are:

Leave to Appeal be granted

A Stay in the Sequestration Order be granted until the hearing of the Appeal

Costs and loss of income to be decided at the Appeal hearing.

McHUGH J:   I am sorry, the what, the “loss of income”?

MR GOULD:   The “Costs and loss of income”.

McHUGH J:   They are not matters we would deal with.

MR GOULD:   I agree, your Honour.  This is why I ask that be heard at the appeal hearing.

McHUGH J:   You would be better spending your time putting your argument in support of the application.  If leave is granted, we can deal with the questions of orders or grounds of a notice of appeal then.

MR GOULD:   Thank you, your Honour.  This is leave to appeal to the High Court is because, as far as I understand, the process – the only court that is empowered to review the administration process is the High Court.

McHUGH J:   That is incorrect.  The Court decides cases between parties.

MR GOULD:   Right.

McHUGH J:   It has a jurisdiction to grant special leave and, in certain circumstances, if it thinks that the proper administration of justice requires the grant of leave in a particular case, it may grant leave.  But the Court is not an ombudsman, it is not here to rectify general rights and wrongs, nor to investigate people’s grievances.  It decides issues between parties and it will only grant leave when there is some special point or that there is such a miscarriage of justice in the sense of such a fundamental departure from the ordinary procedures that it would be proper for the Court, in the exercise of its discretion, to grant leave.

MR GOULD:   Thank you, your Honour.  As you are aware, in my submission I said there are a number of issues in the public interest in this matter.  These are listed on page 37, line 30.  In particular, that litigants in person are allowed to follow a laid down process.  The second issue, that abuse of process by the respondents has prevented me from following that process.

McHUGH J:   But, Mr Gould, they seem to have nothing whatever to do with the grounds of judgment and they rely on your assertions in your document and now from the Bar table.  There is no judgment here of the Full Court dealing with this question of long record of abuse of process other than what appears in the Full Court’s order.

MR GOULD:   No, your Honour.  I am just referring that to saying that the long abuse of process has been – is not an isolated case as has appeared in the Federal Court and, if you like, I am setting the scene before I actually outline the abuse of process that took place in the Federal Court.

McHUGH J:   Well now, where was the evidence in support of this issue in the Full Court?

MR GOULD:   In the Full Federal Court, if I can come to that.

McHUGH J:   There is no judgment in the Full Court dealing with this other than what appears in what is in the particular papers.  There is a judgment of the Full Court set out here and it deals with your appeal against Justice Conti’s order.

MR GOULD:   Your Honour, I thought I was allowed to speak for 20 minutes.

McHUGH J:   You are but you must also understand that you will have to answer questions that the Court thinks appropriate to put to you.  Now, will you carry on with your argument.

MR GOULD:   Thank you, your Honour.  In this specific instance the delay by the respondents is detailed on page 41, line 35, and this is the abuse of process that has taken place by the respondents to prevent me being able to comply with the legal process.

McHUGH J:   But what issue does it go to and what effect has it?  I mean, there is nothing there apart from this assertion of yours in this document.  I appreciate that you are appearing in person, Mr - - -

MR GOULD:   Your Honour, if I could summarise the issues.  The first issue was that the respondents did not attend the first meeting on Tuesday, 17 October.

McHUGH J:   Mr Gould, it has nothing whatever to do with the issues that are litigated in the judgment of the Full Court.

MR GOULD:   Your Honour, I would also say the second point about doing an appeal is that you agree a timetable for the index and I was not allowed – we did not settle the index, and I was only given five days in which to prepare the index and the documents.  If I may continue, your Honour, please.

First of all, we did not have the first meeting on the 17th.  Secondly, we did not – when we finally agreed to the timetable on the 20th, the respondents were supposed to provide the inclusions for the index by Monday, the 23rd.  They did not provide those inclusions for the index.  They provided documents on the 26th.  That gave me effectively five days to produce an appeal book.  In total – and this was confirmed by the Registry – the appeal process should consist of a list of authorities should be lodged within the Registry two working days before the appeal.  The appellant to provide on the last working day before hearing copies of the summary of appellant’s arguments.  I asked and confirmed with the Registry that I would not be ready by the 7th and asked them whether the 14th was - - -

McHUGH J:   Well now, did you apply to the Full Court of the Federal Court for an adjournment?

MR GOULD:   I notified the Full Court, your Honour, on the 6th.

McHUGH J:   No, did you apply to the court, to the three justices, for an adjournment?

MR GOULD:   I, by E-mail, said I was not ready, your Honour.

McHUGH J:   Did you make an application in court and was a judgment given in respect of your application?

MR GOULD:   Your Honour, this is why I am appealing here, to say ‑ ‑ ‑

McHUGH J:   No.  That is why you cannot appeal here, because you can only appeal against orders of the Federal Court. 

MR GOULD:   Well, if I may continue, your Honour.  As I said, the first step that I am saying is that I was not given the right to actually put forward authorities, which is part of the appeal process, and having spoken with Chantella at the Federal Court this morning, at 11 o’clock, she said normally ‑ ‑ ‑

McHUGH J:   Now you are giving evidence from the Bar table.

MR GOULD:   Your Honour, I am just verifying that ‑ ‑ ‑

McHUGH J:   No, you are giving evidence from the Bar table and you should know, if you are going to appear in this Court, that this Court does not admit new evidence, either on a special leave application or on an appeal.

MR GOULD:   Your Honour, I am not seeking to admit new evidence.

McHUGH J:   It is new evidence.  You are making statements from the Bar table, Mr Gould, and you want to rely on it.

MR GOULD:   Your Honour, I spoke to the registry, the Federal Court Registry to ask them ‑ ‑ ‑

McHUGH J:   Now, I told you, Mr Gould – I will withdraw your right to appear if you disobey what I have just told you.  You are trying to get before the Court material which you are not entitled to.

MR GOULD:   I have been informed that it is normally ‑ ‑ ‑

McHUGH J:   You will not say you “have been informed”.  You will deal with what material is in the application book and no other material.

MR GOULD:   Right, your Honour, thank you.  I notified the registry and the judges by E-mail that I would not be able to complete the appeal process as specified by 7/11, and that has been filed in affidavits before the Court.

McHUGH J:   What, before this Court?

MR GOULD:   Yes, it has, your Honour.

McHUGH J:   Where is the affidavit in this book?

MR GOULD:   The affidavit in this book is on page ‑ ‑ ‑

McHUGH J:   This is 97, is it?

MR GOULD:   Page 93, which is informing the registry of the process, then on page 97, informing the judges that I was not ready to proceed.

McHUGH J:   Yes.  Well now, Mr Gould, the proper procedure, if that was the case, is that you should have made an application to the justices, in open court, where they could have ruled on your application, that there would have been a judgment given and, although your prospects of getting special leave on such a judgment would be fairly small, you would then have an order that you could bring up to this Court, or arguably bring up to this Court.  There is no order of the Federal Court relating to any application for an adjournment.

MR GOULD:   Thank you, your Honour.  If I may proceed.  As the court has informed both Justice Sackville, so with Justice Conti and Justice Heeerey, Moore and Goldberg, that under rule 52.2(b), there are sufficient causes for a sequestration order not to be made.  In the judgment by the honourable Justices Heerey, Moore and Goldberg, it says, “Mr Gould did not take us to any other material that had been before Justice Conti”, and that was mentioned before the Full Bench on page 29, line 54, and page 30, line 35.

Now, the issue is about being able to prepare authorities which have now been before the court are presented before this Court to illustrate that special sufficient cause for a sequestration order not to be granted.

McHUGH J:   Well, you relied on a number of matters.  Justice Conti rejected them.

MR GOULD:   They were not filed before Justice Conti, your Honour; they were not detailed.  They were not detailed before Justices Heerey, Moore and Goldberg.

McHUGH J:   If they were not detailed before them, what is the point of referring to them in this Court?

MR GOULD:   Because, your Honour, as I said, because I was not allowed time to prepare the authorities.

McHUGH J:   What authorities?

MR GOULD:   The authorities that the rules say that you can prepare for an appeal.

McHUGH J:   Yes, but “authorities” are talking about cases.

MR GOULD:   And we are talking about cases, your Honour.

McHUGH J:   We are talking about decisions.  “File a list of the cases that you rely on”.

MR GOULD:   Authorities is that improper motive and malicious presentation of - - -

McHUGH J:   Yes, I appreciate that.  They were not grounds that you relied on before Justice Conti.  As far as I can see, there is no order or judgment of the court dealing with any application of yours to amend.

MR GOULD:   But, your Honour, this is why I appealed Justice Conti’s decision that I mentioned, and I said to him, under rule 52.2(b) there were other sufficient causes.

McHUGH J:   Yes, and they are listed.  They were listed in your affidavit.  You listed four matters:  Debtor insolvent; Supreme Court action against the second applicant; High Court application against cost claim; defamation action District Court, first applicant, creditor.

MR GOULD:   Yes, but under 52.2(b) what I had not done is documented as being improper motive and this thing, the authorities under improper motive ‑ ‑ ‑

McHUGH J:   I appreciate that you may not have done that, but an issue was tendered before Justice Conti.  He ruled on it and you had to show that his discretion was wrongly exercised and you failed to persuade the Full Court that that was so. 

MR GOULD:   Because, your Honour, I had not actually listed those issues.  As I have just put before you, improper motive, because I was not given time to do that, which is why - - -

McHUGH J:   Well, you should have made an application to the Full Court for leave to amend or leave to call fresh evidence and get a judgment in respect of it.

MR GOULD:   But, your Honour, I actually notified the court I was not ready.

McHUGH J:   That is not sufficient.

MR GOULD:   I had not been given sufficient time, your Honour.

McHUGH J:   Well, that is not sufficient.  You must apply to the justices who are hearing the case for an adjournment.

MR GOULD:   But that is why I am appealing to you, your Honour.

McHUGH J:   It is not sufficient – we are not here as an ombudsman.  There is an order - - -

MR GOULD:   I see.  So, the fact that I can point out that I was not given enough time, I have no appeal on that?

McHUGH J:   That is probably right, unless you made an application to the court for an adjournment.

CALLINAN J:   Anyway, you could have brought these matters before the court, orally, if you wanted to.

MR GOULD:   I believe I did, your Honour.

CALLINAN J:   Well, they have been dealt with then.

MR GOULD:   Again, if you look at the actual – if you actually look at the judgment by Justices Heerey, Moore and Goldberg, it says, on page 30, line 25:

These adjournments were for matters other than the s 52(2)(b) issue but the fact that these adjournments were made affords no basis for thinking that his Honour did not give proper consideration to Mr Gould’s claim for discretionary relief.

As I had not presented those issues to Justice Conti, how could he - - -

McHUGH J:   But you had every opportunity to present them before Justice Conti.

MR GOULD:   I did not have that opportunity, your Honour.

McHUGH J:   He was prepared to adjourn the matter for a week.  You had applications before Justice Katz.  I mean, Mr Gould, you have to face reality.  You have kept the respondents out of a judgment of several thousand dollars – more than $40,000 since 1997.  You refuse to pay it.  You have given various reasons.  You have claimed at different stages that you have owed money.

MR GOULD:   Excuse me, your Honour, this is for them not fulfilling for three years subpoenas ordered by a court, and for some reason, because they do not fulfil subpoenas, I then have to pay their legal costs.  I cannot win my case because they do not comply with the court orders.

McHUGH J:   You lost your case before the District Court.  Your appeal to the Court of Appeal was dismissed and you have brought many applications, it would appear, from the judgments in this book - - -

MR GOULD:   Your Honour, the public are not stupid, you know.  We understand that if somebody says you should comply with a court order to provide documents, they should comply with that order.  If, for three years, they do not comply with that order and I lose because I cannot get that information and then have to pay their legal costs, they then bankrupt me.  You have to understand, your Honour, the public think that is not right.  This is why Peter – this is why the Reform the Law Society Party is now coming to power, because people are concerned that the legal process is not being followed and supported by the judges.

McHUGH J:   You got a judgment against you in the District Court for $37,715, an order, and there was an interest of nearly $6,800 payable on that when a bankruptcy notice was served on you.  You failed to pay it and you resisted the sequestration order on a number of grounds.  They were rejected by Justice Conti, and his judgment was upheld by the Full Court.

CALLINAN J:   And you keep on disrupting the respondents’ lives and affairs by bringing them to court.

MR GOULD:   Excuse me, your Honour, for three years I had to try and get subpoenaed documents which were never delivered.

CALLINAN J:   Well, pay your debt.  You have a judgment debt - - -

MR GOULD:   It is not a debt, your Honour.  If they had not - - -

CALLINAN J:   Listen to me.  Do not interrupt me.  You have a judgment debt against you.  Pay it.  If you do not pay it, you can expect to be bankrupt.  It is as simple as that.  Look at the other side of the coin:  the people on the other side are having their affairs constantly disrupted by your applications to courts and appeals.

MR GOULD:   Your Honour, as I said before, there is a process to be followed.  I was not allowed to provide – to follow that.  The respondents right the way through have always stopped me following the process that is laid down, which is why I am appealing to the High Court to say the administrative process was not followed and I was not allowed to follow it.  This is why they delayed in settling the index, so I did not have the time to do the full appeal – follow the full appeal process.  If I had been allowed to present those authorities - - -

McHUGH J:   What do you mean by “authorities”?

MR GOULD:   The authorities that say that there is – I shall list the authorities.

McHUGH J:   Well, you have referred to them in a document that was sent around.

MR GOULD:   Yes.  The authorities are improper motive is one reason why a sequestration order should not be granted and can be dismissed.

McHUGH J:   No, not that it should not, it is a discretionary ground and I would have thought that even if these defendants hated you and wanted to see you bankrupt, then that would not have been a sufficient ground for the judge to exercise his discretion.

MR GOULD:   I am not saying that was, your Honour.

McHUGH J:   No.

MR GOULD:   What I am saying is they have affected other people.  They have actually – if you read through the evidence – they contacted Commonwealth Bank, AIDC.  They have not just dealt with me.  They have affected other people’s lives which is why, now, they have been issued with – Justice James has granted an injunction hearing against them tomorrow because of the way they have affected other people’s lives.  Because of their spite and malice they have determined, by writing to Commonwealth Bank, AIDC, and I can list Optus, I would list at least 20 companies that they have contacted.  That is abuse of process, your Honour.

McHUGH J:   That is not abuse of process because they write to others.  Abuse of process is using the court’s process for some improper purpose.

MR GOULD:   That is what I listed, your Honour, whereby they phoned up SEA-NSW and threatened to include the CEO in a bankruptcy petition.  In fact, they called it a creditor’s petition, your Honour.  This is how much ‑ ‑ ‑

McHUGH J:   Well, you may have other actions against them, who knows.  I would be the last person to encourage you, but the fact is that you had a judgment against you.  Your appeal was dismissed by the Court of Appeal of New South Wales and you failed to pay it.  The law says that subject to the exercise of a judge’s discretion you can be made bankrupt and you have been.  That sequestration order is presently the subject of a stay.

Now, Mr Gould, we have studied your papers.  Your time is up.  I have interrupted you, but no more than counsel are frequently interrupted in this Court or litigants in person are frequently interrupted.  But I will give you another five minutes to put anything further that you want to say.

MR GOULD:   Thank you, your Honour.  Alan Manly claims on page 52, line 9, there is a legal requirement for a creditor’s petition to be served on a debtor.  As Julian Day had served documents on me on 30 Atchison Street and he served me later that day with documents.  Alan Manly actually contacted Geoff Bowker before he had actually served me with any documents.  That is abuse of process.  The Court has only to review the two affidavits by Geoff Bowker on page 67 to appreciate the influence and threats by the respondents on businesses associated with me.  On page 67 Geoff Bowker says:

On Monday 23/08/99 I received a telephone call from a person who called himself Alan Manly.  Alan Manly said words to the effect “I have just issued a Bankruptcy Notice on Stephen GOULD.  I want to serve you with this bankruptcy notice as you are in partnership with Stephen Gould.  Are you prepared to accept the bankruptcy notice?”  I finished the conversation by saying I will speak with Stephen GOULD.

Around 14:30 Thu 26/08/99 I received another phone call from Alan Manly who said words to the effect “Stephen GOULD is a convicted fraudster.  If you continue to work with him we will inform your members.”

Your Honours, if that is not abuse of process - - -

McHUGH J:   Well, it is not abuse of process.  Mr Gould, you do not understand the concept of “abuse of process”.  It is a legal term.  That is not to say you may not have – if those statements are right, they may give rise to actions on your part, but that is quite different from saying it is an abuse of process.  On the surface, it is a defamatory statement made of you, that is to say, that you are a convicted fraudster.  Now, they may be able to defend it.

MR GOULD:   No, that was true.  I was convicted because Mr Day and Mr Manly took me to court over a $115 invoice for expenses which they then took me to the court and I wrote an affidavit saying I had reconstructed an invoice because the computer system I used could not provide the details they required.  That part I am not concerned about, your Honour, because it is true.  What I am concerned about is Alan Manly contacted Geoff Bowker before serving me with the notice to say, “I will serve you with the bankruptcy notice.”  That is abuse of process, your Honour.  You are not allowed to contact people to say you are going to serve them with court documents.  If I may go on:  Alan Manly then contacted my business partner and said to her, “We’re going to bankrupt Stephen Gould.  If it takes me 40 years to get him, I will get him, and I will bankrupt you in the process.”  Your Honours, the law is supposed to protect people from that.  That is what I thought the law was about.

McHUGH J:   The law has certain remedies, but the law also protects people who have got judgments.  Now, Mr Gould, we have read the papers ‑ ‑ ‑

MR GOULD:   Your Honour, there was no judgment at that stage.  That was somebody just phoning out of the blue.  If I may continue, as you said; you gave me five more minutes.  In late August 2000, the respondents contacted a company called IBC.  The business development manager had written to the OIC.  We had not written to him.  He had written to the OIC requesting a long-term relationship for E-commerce…..  At the time, I am recognised as a world expert in my field even though the respondents claim that this is a false claim.  I take you to pages 77, 78, 79 and 80.  Page 78, which is from IBM, UK, says Mr Gould – it says, Stephen:

As you are the worldwide expert in this area, can you give me a view –

on what is now happening with B2B issues and Netfish.  If I go to page 78, we had to win first prize in an international software competition called the “Global Bangemann Challenge”.  That was based on the architecture that I put together, “Oz wizards take title”.

If I take you on to page 79, a letter from AUSTRADE – two letters from AUSTRADE.  One is to Stephen Gould, as Managing Director of HALISA (EUROPE):

AUSTRADE – LONDON have been pleased to support your –

initiatives since 1988.  In 1991 – this was a letter from AUSTRADE in London to the European Air Association, talking about what was happening in the markets to do with electronic commerce.  If you look at page 80, your Honour, Stephen Gould:

Dear Steve,

I was pleased to meet with you again today.

RUBAC presents a very interesting opportunity for Australia to take its place in the Electronic Data Interchange environment.  The concept for an electronic communication and filing system addresses the major problem of information retrieval.

McHUGH J:   Your five minutes is up, the extra five minutes is up.

MR GOULD:   As I was saying, your Honour ‑ ‑ ‑

McHUGH J:   Your five minutes is up.  Would you resume your seat, please, Mr Gould.

MR GOULD:   Thank you, your Honour.  It is nice to know you get a fair hearing.

McHUGH J:   The Court need not hear you, Mr Day or Mr Manly.

The applicant seeks special leave to appeal against an order of the Full Court of the Federal Court dismissing his appeal against an order for the sequestration of his estate made on 7 September 2000.  The sequestration order was made for non‑compliance with a bankruptcy notice.  That notice arose out of the applicant’s failure to comply with a District Court order that he pay the respondents the sum of $37,715‑odd and interest thereon, which relevantly amounted to almost $6,800.

Nothing in the matters relied on in the application or in the applicant’s argument today would warrant this Court granting special leave to appeal against the order of the Full Court.  There is no special leave point in the case.  Nor is there any ground for thinking that the Full Court erred in dismissing the appeal against the sequestration order or that the case involves any miscarriage of justice.

The applicant has failed, or has refused, to pay a substantial debt owing since November 1997.  He resisted the petition for the sequestration order on various grounds, but the learned trial judge rejected those grounds.  The Full Court saw no error in his Honour’s reasons.  Nor can we.  The application is dismissed with costs.  It follows that the stay that was granted by Justice Gummow ends.

The Court will now adjourn to reconstitute.

AT 3.01 PM THE MATTER WAS CONCLUDED