Gradara v Bolt & Anor M16/2001

[2001] HCATrans 654

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 2001

B e t w e e n -

TARCISIO GRADARA

Applicant

and

WENDY BOLT

First Respondent

SHARNEY BYRNE

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 3.34 PM

Copyright in the High Court of Australia

MR T. GRADARA appeared in person.

MR M.G. McNAMARA:   If the Court pleases, I appear on behalf of the respondents.  (instructed by Herbert Geer & Rundle)

GUMMOW J:   Yes, Mr Gradara.  Take a moment to set yourself up.

MR GRADARA:   Yes.  Your Honour, 1 August 1997 ‑ ‑ ‑

GUMMOW J:   Just a minute.  Just a minute.  You must speak into the microphone.

MR GRADARA:    Yes.

GUMMOW J:   Now, if you want to take a minute to set your papers up, do so.

MR GRADARA:    On 1 August 1997 Judge Merkel entered into the court and just – he just read the submission of Lam and affidavit and that was an untrue story prepared for a solicitor in which she come from – engaged from Herbert Geer & Rundle from China, resident in China, reside in China, not here.  That is what kind of solicitor they engage to make false affidavit and mislead all the benches of the court.  Naturally after a couple of minutes he read all the submission and the affidavit of Lam.  He says nothing but he had to say and, in other words, he accept only one side of the story, Judge Merkel, and that is the error that he make.  I ask him, “Please, can I talk?”  He say, “No.”  I ask him six times, “I don’t go away from here.  You have to listen to my story.”  He say, “No.” 

The police come at 6 o’clock in the night because I did not remove – I stay there for eight hours and they charge me for trespasses, $1,850 fine, 28 days in prison without no summons, not a single letter to appear in a court in my defence.  I think this is a time to make a subpoena really properly, so under the direction of the law the court, Judge Goldberg on 2 March issued a subpoena for Peter Lukaitis police and Dino De Marchi, my solicitor, and he was there and he says, all right, and I get in the custody of the court this subpoena, this document, and they discharge the witness.  Then he say to me, “What are you going to say?”, the presiding judge ‑ ‑ ‑

GUMMOW J:   Now, Mr Gradara – Mr Gradara, you have only got 20 minutes.

MR GRADARA:    Yes.

GUMMOW J:   You understand that?

MR GRADARA:    And he said, “What are you going to say” ‑ ‑ ‑

GUMMOW J:   Just listen to me for a minute.  You have only got 20 minutes here.  We are here today to consider whether there is a case to intervene in respect of the Federal Court decision, the decision of the Full Court, on 21 February 2001, which is at page 19 of your application book, and that raises legal questions as to the correctness and so forth of that decision, and we know the matter has a long background, but this is the particular – this is a particular matter and you would be best to use your time directing your submissions to what you want to say about that decision of the Full Federal Court on 12 February at page 19 of your application book.

MR GRADARA:    What I want to say is that every document – every thing which is done, my solicitor, he never show to me nothing and he always altered or make a false signature.  You can have a look at it on this page 233 and – 133 and 134 that he – you can see here how he can falsify the signature.  You can put this page 133 and then you take the page 134, which I never signed this one – the schedule I never sign, but he has put it – I found out just now he just put a carbonised paper and if you can see through the light, you can see that the first signature that I done for this document he has make a copy from this document.

That is the kind of solicitor I had to deal for.  He always tried to mislead all of everybody.  He was charged seven charges and the police was convinced to condemn this solicitor.  So Justice Kirby, Michael, Justice Kirby, remind me that on 11 April 1995 that he said to the Four Corner that a case will die at the beginning, at its birth, when a politician enter into the case.  So on the case of De Marchi of 3‑5 November 1993 the intervention was – because the Attorney‑General Jan Wade write down to Judge Byrne not to prosecute De Marchi.

GUMMOW J:   Now, look, do you want to say anything about the Full Court judgment of 12 February 2001?

MR GRADARA:    2001.

GUMMOW J:   That is what you want special leave to appeal against.

MR GRADARA:    Well, if you want to talk about the case ‑ ‑ ‑

GUMMOW J:   It is for you to say what you want to say, but that is what we have got to ‑ ‑ ‑

MR GRADARA:    What I say is what is the false statement for things is Judge Merkel – Judge Finkelstein says that the court can go behind your debts if I can prove that some miscarriage of justice, some fraud, some collusion that is in this case.  I can prove very easy.  Branson and all the other judges, and even Finkelstein, says on one side, “You’ve got the right to talk, Gradara”, but they do not comply with my subpoena and on the subpoena they say – they say that Judge Finkelstein, Branson and all the others that De Marchi return the money – it is just they accept the $3,500 as costs.  If you read on this statement from the Law Institute on this page – on the last page, you know, on this book, he says $15,000 was received for the full payment of a full claim.  $13,500 was given to Gradara, to me.  That is what he write there to the Law Institute, De Marchi, and De Marchi retain for these legal costs 1,500, but Finkelstein say 3,500.  He say 3,500 be retained.  It should not be retained because on 22/11 ‑ ‑ ‑

GUMMOW J:   Mr Gradara – Mr Gradara, listen to me for a minute.  You are getting too excited.  Just slow down for a little bit.

MR GRADARA:    No, I do not – your Honour, I just ‑ ‑ ‑

GUMMOW J:   Well, I am finding it hard to understand what you are saying, so just take it a little more quietly, please.

MR GRADARA:    All right.  On this page it says on 22 November De Marchi stated that he take it from the trust account without not my signature $1,500.  Who do they have to believe, De Marchi, all these people here?  They engage a solicitor from overseas, from China, in order to make this false affidavit that has been retained 3,500.  Who – this is the statement that they make to the Law Institute, and unfortunately I did not have this statement of settlement.  De Marchi never give to me nothing.  I ask him.  He never give to me. 

So the Law Institute, Adrian Hilford, he know the story and he say, “Sue them because you will” – he knew that all this false signature that De Marchi done with the fountain pen and not with a biro.  He say, “Go and you will win the court.”  That is Adrian Hilford, who investigated these things from 21 September 1998 to 3 April 1999.  He called me in his own office – he invited me to come in his own office.  He said, “Look how De Marchi is stupid.  He signed all the time with the same fountain pen.”  I say, “Look you can take the cheque.”  “Do you recognise your signature?”  I say, “Yes, this is my signature.”  I read and I said, “But I never received $13,500.  I only receive $10,000 which I banked straightaway.”  And then he said to me, “Go and sue De Marchi.”  He said to sue De Marchi.

On 18 April I went to the police station and the police station they take him to the court with seven charges:  thief, perjury, subornation of perjury, defalcation as a solicitor, obtain property by deception, and remind me of Michael Kirby, which I got the video all the time with me, says when one politician enter into the dispute the case die at its birth.  That is what has happened to me because the Attorney‑General Jan Wade write down to Judge Byrne and Judge Byrne says – he was writing on 18 February 1992 that no prosecution against De Marchi and De Marchi come free.  I was waiting outside.  I say, “Where – what about the $500?  I give it to you.  Why don’t you return it back?  Why you say give that $1,500?  Why don’t you return the money?”  I finish up 40 days in prison again.

Why they do not do this thing?  Why they do not want to – the judge must see this evidence from the Law Institute that I get not in time when was all the court but just after and when I show to the High Court this document, they say Judge Hayne – your Honourable Justice Hayne and Judge Callinan says they are not entitled, these people to have – to be paid for the costs and I do not give your cost order for the costs.  Matter of fact, Judge Hayne, he say I want to write down to the statute all this what happen and they was invited, “Do you want to go on with your loop or you want to come and talk this thing to what Mr Gradara says?”

GUMMOW J:   Now, Mr Gradara – now, Mr Gradara, slow down a bit. 

MR GRADARA:   I understand….. ‑ ‑ ‑

GUMMOW J:   You talk so fast I cannot follow you.  My job is to – our job is to follow ‑ ‑ ‑

MR GRADARA:   ‑ ‑ ‑ know that is true….. ‑ ‑ ‑

GUMMOW J:   Just listen to me.

MR GRADARA:   ‑ ‑ ‑ …..

GUMMOW J:   Our job – our job is to listen to what you are saying.  We cannot if you are talking so loud that we cannot follow you.  It is as simple as that.

MR GRADARA:   Well, there is an error…..to convey the truth to the people and to whole world what kind of people are this one here.  They take and they put to the Merkel – Judge Merkel – what do he know Judge Merkel that what they write in affidavit, is it true or not?  They just could not just – he just – they just say Gradara has got nothing else.  You will not accept his story, his false story, the way you take it off the cheque.  They can – I can go, Senator Barney Cooney telephoned them and say, “You still got the cheque?”  And they said, “Yes”, by interview and Senator Barney Cooney he told me that he will come into court and he come into court on 11 November 1998 to Branson case.

Judge Branson says, “You are not allowed to take anybody in the witness box”, the same thing as like Judge Merkel.  He does not want to know the truth, that the truth is they still got the cheque.  Bring in the cheque here in the court, in any court, and you will see that Gradara signed with a fountain pen and therefore the judge, Judge Brown, says if Gradara sign it with a fountain pen, it is true that De Marchi lie all along because it was a conspiracy.

De Marchi telephoned to the – to the staff, Wendy Bolt.  It was a conspiracy.  The teller did not want accept the cheque.  They say, “No, I don’t want accept the cheque.”  Is not – not even, “In what denomination you want the money?”  It is – it is, “You give the fountain pen to Gradara.  I don’t want to pay.”  So she go with Wendy Bolt.  Wendy Bolt come back, does not give – do not tell me nothing.  She just give the money to De Marchi.  De Marchi put the money in the bag – in the bag in the pocket.  He just – he did not tell me nothing what – what I was there.  He just said to me, “Come”, and he make me sign a blank piece of paper and that blank piece of paper he make a receipt and that other blank piece of paper I found out on 6 June 1999 at police station that piece of paper when turned around was the payee of that cheque was Gradara and not De Marchi.

But in the bank on 6 October when I ask them, they say, “We’ve found the cheque.  The payee is Dino De Marchi.”  I had to shut up and just go away.  About seven months later I can see from the police station that that payee was Gradara and not De Marchi.  That is why I come here to fight and I put everything.  Senator Barney Cooney say, “Look, you can go withdraw.  You can go out.  You don’t have to pay nothing to them.  You don’t carry on because they can squash you.”  I say I don’t care.  The truth it had to come out and if you are sincere, as I ask the Full Court, “If you are sincere”, I say, “well, you show me, please, the document that you have got in custody of the court.”  Judge Foster did not show to me.  The only person who showed to me is the Registrar – the Registrar and say to me, “Look, there is not document in the custody of the court.”  That is why the – all the court…..they make all these judge and I really – and I believe that if you are sincere too, you can ask him to bring here because Senator Barney Cooney he talk with me all the time on this matter for the last 10 years and he inquire and he said they have that cheque.  So that cheque is – then they prove that it is none of – I was not near to the teller.  I did not know what was – I was going in the bank.

I did not know – when I went to the bank I understand I was in a bank.  He asked me to sign a blank piece of paper.  I did not know it was in my name.  I did not know.  I just – do you reckon in what condition – and

what kind of people are that because it was from 18 February 1992 was Jan Wade write down to Judge Byrne and also right down to my first judge, Tuppen, that he held them up for 14 months all my documents so I cannot go into the Supreme Court because Judge Southwell and Judge Cummins say to me, “You got nothing to present here.”  It is Judge Tuppen does not want to give you nothing, not me.  I went to return it to that officer that – I issue a subpoena to the Attorney‑General.  I issue a subpoena also to my first judge, Judge Tuppen, to say, “Why you won’t come up the document?” or to say to Jan Wade, “Why you want to – to order – to say – not to stop this case to go with the police and him – they charging him 39 charges”.  But she does not – she does not – was nobody answer to this question why they do not want to come to the court Jan Wade.  I am not to fear anybody for the truth.

So, please, ask him to bring it immediately because they got the cheque and see that there is the fountain pen because he display on the table, Mr Adrian Hilford from the Law Institute, he say, “Come to me.  I show you something.”  He say, “This is signature of De Marchi.  You see – you see the same fountain pen he use all the time.”  On the cheque was write on the fountain pen and on the receipt.  He got no doubt about this.  He said sue them.  Well, I say, “Why don’t you sue?  You are – you are” ‑ ‑ ‑

GUMMOW J:   Now, your time – your time is almost up.

MR GRADARA:    All right, your Honour.  Thank you very much.  I hope I clear – I wish that I had more time than in this and explain everything when I went through with in any court, without not this document, and I got here of 11 April.  Your Honour, thank you very much.  You explain to me more plenty in that.

GUMMOW J:   We do not need to call on you, Mr McNamara.

No error has been shown in the decision of the Full Court of the Federal Court of Australia which the applicant, Mr Gradara, seeks to challenge in this Court.  That decision in turn confirmed the judgment of Justice Heerey, a judge of the Federal Court, who declined to annul a sequestration order which had been made by Justice Finkelstein against the applicant in April 1999.  The sequestration order in turn had been made on the basis of a judgment of a court of competent jurisdiction disposing of a contested case between the applicant and his solicitor, Mr De Marchi.  The respondents to the present application in this Court were not parties to the proceedings between the applicant and Mr De Marchi, which concerned the latter’s costs.

There is no basis to doubt the correctness of the Full Court’s decision.  No special leave point has been shown.  Special leave is refused with costs.

The Court will adjourn until 3.30 pm on Monday, 4 February 2002 at Canberra.

AT 3.54 PM THE MATTER WAS CONCLUDED