Gould v Day

[2000] HCATrans 582

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 a stay

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 DECEMBER 2000, AT 9.41 AM

Copyright in the High Court of Australia

MR S. GOULD appeared in person.

MR A. MANLY appeared in person.

HIS HONOUR:   Yes, Mr Gould.

MR GOULD:   Thank you, your Honour.  As you are aware, this is seeking an order for a stay of proceedings pending the hearing of the leave to appeal.

HIS HONOUR:   Yes.  Where do you say the Full Court of the Federal Court fell into error which will attract a grant of special leave?

MR GOULD:   In three areas, your Honour.  The first area is that the respondents deliberately delayed filing documents so that I could not comply with the rules for an appeal.  I have drafted out, if you will see in my submission, your Honour ‑ ‑ ‑

HIS HONOUR:   Well, that is the first point.  What are the others?

MR GOULD:   The second one is that the Registry informed me that the hearing on the 7th, it was likely to be heard in full by the 14th, because I pointed out to the Registry that I actually sought before Registrar Segal when the hearing was likely to take place and he informed me it would probably be the 14th.  The 7th was likely to be a date that would not be ‑ the hearing would not take place because I had not followed through with all of the requirements for the appeal.

HIS HONOUR:   Yes.  Justice Gyles dealt with your three points, did he, on the top of page 2 of his reasons of 1 December?  You have those there?

MR GOULD:   Yes, he did, your Honour.

HIS HONOUR:   Yes, thank you.  I will just read that to myself.  Now, if any stay were to be granted, or any continuation of the stay were to be granted here, Mr Gould, you would have to be ready here for the special leave application to be heard as soon as possible and as soon as possible means 20 February.

MR GOULD:   Yes, your Honour.  I have to file it by this Friday all the grounds ‑ ‑ ‑

HIS HONOUR:   There is a lot of other litigation, is there, behind this bankruptcy matter?

MR GOULD:   Yes, there is, your Honour.

HIS HONOUR:   What is the current state of that?

MR GOULD:   Your Honour, the state of that is that there is the matter against Mr Manly, 12242 1999, is still in progress.

HIS HONOUR:   Which court?

MR GOULD:   In the Supreme Court.

HIS HONOUR:   Of New South Wales?

MR GOULD:   Of New South Wales.  The other matter is a defamation matter against Julian Day which was for an e-mail that he sent out in 1998. Again, this is all involved with this case.  There was a hearing before the Court of Appeal last week and I informed the court ‑ the justices there ruled that my appeal had not completely complied with the discovery.  The court decided that my appeal would not be heard and I informed the court that I would be appealing against that.

The third matter is a case against Mr Day and Mr Manly together for preventing me from earning a living over the last seven years by improper motive of contacting anybody that I deal with to make sure that (a) they do not trade with me and (b) they make sure that they just defame at any time they can, your Honour.

HIS HONOUR:   Yes, all right.  Now, what do you say, Mr Manly, as to getting this matter disposed of in this Court on 20 February?

MR MANLY:   I do not understand why it is being delayed.  I would have thought that Justice Gyles gave Mr Gould ample time when he gave him 21 days to be ready and from what I can understand Mr Gould is now saying he wants it deferred.  I do not understand why.

HIS HONOUR:   No, that is not the point.  The point is that the first day on which this Court could deal with the special leave application, making considerable efforts in that regard, I may say, is 20 February 2001.

MR MANLY:   I have no objection to a prompt hearing, wishing finality of six years of litigation and, if I may say, 100 per cent success litigation over 150 hearings and this mere bankruptcy that we talk of has appeared before six federal judges, three individually and three sitting as a Full Bench.

HIS HONOUR:   Yes.  Well, it will be here on ‑ ‑ ‑

MR MANLY:   Consequently, my next point, if I may, your Honour, take your time, I would seek some relief in costs.

HIS HONOUR:   Well, that will be decided on 20 February.

MR MANLY:   Well, I would seek a surety of costs, your Honour, because it is absolutely apparent Mr Gould is bankrupt.

HIS HONOUR:   Well, that will be decided on 20 February.

MR MANLY:   So how do I get somebody to defend myself against a person who has the inability to pay a $400 bill from one court hearing, the inability to pay $1,000 from another ‑ ‑ ‑

HIS HONOUR:   I understand there is a great deal of animosity between the parties.

MR MANLY:   So I have to pay – it is not animosity, your Honour.

HIS HONOUR:   I cannot solve it now.

MR MANLY:   But what about the fact I have to employ counsel against a person who has been given leave to sue me and the Court knows, your Honour knows and I know, he has not got a razoo.

HIS HONOUR:   I am not entering into that debate.

MR MANLY:   But is that not a little bit unfair to myself?  I cannot get legal representation because I cannot afford another $50,000 against a man who happily is underwritten by the High Court.  He walked into the High Court two weeks ago ‑ ‑ ‑

HIS HONOUR:   He is not being underwritten ‑ ‑ ‑

MR MANLY:   ‑ ‑ ‑ and you gave him money.  No one gives me money to defend myself.

HIS HONOUR:   I am not giving anybody money, Mr Manly.

MR MANLY:   He does not pay filing fees.  He is exempt, but I am not.

HIS HONOUR:   That is not what the Court does.  That is what the Parliament of the Commonwealth does.  If you have a complaint about that, you take it to the Executive Government.  You do not take it to me.

MR MANLY:   Well, I feel it is a little unfair that you give ‑ ‑ ‑

HIS HONOUR:   That may be.

MR MANLY:   ‑ ‑ ‑ a licence to a gentleman to sue me and I cannot get even a surety of costs.

HIS HONOUR:   I extend the stay granted by Justice Gyles in the Federal Court on 1 December 2000 up to and including Tuesday, 20 February 2001.  The special leave application will be expedited and placed in the list for that day.  There will be liberty to apply to a Justice on seven days notice.

You must understand, Mr Gould, if you are not ready and you do not comply with the relevant rules to get it on by that date, the stay will be removed.

MR GOULD:   Thank you, your Honour.

HIS HONOUR:   Make no doubt about it.  The costs of the summons heard this morning will be costs in the special leave application.

MR GOULD:   Thank you, your Honour.

AT 9.49 AM THE MATTER WAS CONCLUDED