Gradara v Staff & Manager of Cth Bank

[1999] HCATrans 18

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 1998

B e t w e e n -

TARCISIO GRADARA

Applicant

and

STAFF AND MANAGER OF COMMONWEALTH BANK, WENDY BOLT and S. BYRNE

Respondents

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 2.10 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 and Rundle)

GLEESON CJ:   I understand there is an interpreter to be sworn.  Would you take the oath please.

MR MARCO ALFRED POMPEI was sworn as interpreter:

THE INTERPRETER:   However, your Honour, Mr Gradara has indicated to me that he is quite confident to speak to you in English and will just turn to me if he requires assistance in understanding something you say to him, or vice versa.

GLEESON CJ:   Yes, Mr Gradara.

MR GRADARA:    My case is very simple.  Is not sophisticated.  The only things had to be the original cheque in the court and the original receipt of the cheque in the court.  I issue all the subpoena and no court was the true original receipt and a true cheque.  How they can fine me if a tell the truth or not, if they have not got this evidence?  This is the big error they commit, all the judges.

GUMMOW J:   Now, this cheque was drawn in 1984, was it not?

MR GRADARA:   Yes, 13 August 1984.  By trick, De Marchi taken me to his own bank and he make me sign with his fountain pen two blank piece of paper.  On the first paper he withdrew money without my consent or knowledge.  I was there when some bag given to him but I did not know what contained.  I did not know that was my cheque.  And with the other paper, De Marchi also make a receipt.  To investigate this matter was a long time because I found out after he make me lose a lot of court, I found out on 21 September 1988.  I broke a deal with him and I went to the Law Institute.  The Law Institute say, they said to me, how I can possibly pay you $10,000 cash, De Marchi.  I only here for investigated straight away the case.

After seven months of investigation he told me, “Mr Gradara, you have to sue De Marchi and the Bank.”  I went to the police station and the police station, Peter Lukatis investigated the matter and a few months later he showed to me one piece of paper and say, “This is your signature, Mr Gradara?”  I say, “Yes”.  He said, “That is a cheque of 13 August 1984.”  “Can I have a look at the cheque?”  I tip it over and say, “Was in my name that cheque.”  I could not resist; I went straight away to Elizabeth Street…..  They co-operated with De Marchi.  They are negligent.  I do not know what they are but De Marchi withdrew money without my consent or my knowledge.

I went from month to month in every step in every way.  In order to win the case I must show the evidence.  The police investigated this matter and found De Marchi – and charged De Marchi with perjury, obtain property by deception, defalcation as a solicitor, and defalcation in relation to the trust account.

Today, the Bank, when I sued them also for - because how he can possibly withdraw money without no co-operation with the Bank?  As a matter of fact, on the back of the cheque the teller write, “Telephone to Ms Wendy Bolt.”  It mean he was talking to Wendy Bolt before he get the money.  He co-operated when he…..with him.  He does not say to me, “Come here, you must sign in front of me.”  No.

GUMMOW J:   Mr Gradara, you have to explain to us that there is some error of law in the judgment that Justice Foster gave in the Full Court. 

GLEESON CJ:   It starts at page 49 of this book.

MR GRADARA:   The big error that Judge Merkel make and the Full Court is first of all not to see the evidence in the Court.  Despite, on the summary argument of the Bank that say, “We have got no complaint against this evidence, the evidence is in court, in custody of the court.”  That is not in the custody of the court.  Because he never produced this evidence in any benches and they fool all the judges of any bench to say that I was right with the Bible and they are psychotic.  If you take on page 19 of the book you will find out in the affidavit of Eleanor Lam how she can mislead all the judges, including the Full Court.

GUMMOW J:   What do you say in response to what Justice Foster said at page 53, line 27, going over to page 54?  Have you found it, Mr Pompei?

THE INTERPRETER:   Yes, we have.  “The events in relation to”?

GUMMOW J:   Yes, going over to the next page:

MR GRADARA:  

The events in relation to the negotiation of the cheque occurred 13 years before this cause of action was sought to be advanced by this application.  The other event upon which the appellant relies occurred in 1989.  Both events, of course, fall well outside the six‑year limitation period which prescribes the time within which a cause of action of this kind could be brought.  I have not failed to pay regard to –

I have read it before.  I understand what your Honour mean to say.  Your Honour, first of all, I went to the Ombudsman on 30 September 1989.  Then in view that the Ombudsman does not want to do nothing about it, that he is being paid by the Bank to do the job for the Bank, not for me, he said, seen me go out.  Then I decided to sue De Marchi.  On 6 March I sue De Marchi.  I take it to the court.  He set aside the court on 8 May 1990.  I again apply to the court and in the court there before Judge Tuppen was the cheque, there was the receipt and De Marchi was extremely, extremely nervous; hysterical.  He was up and down, he was very – he could not contain because the judge asked De Marchi to go into the witness box.  De Marchi say “No” to the judges.  He was rude before the judges.  He take his bag and everything and he walk out from the court, and Judge Tuppen said to me, “Mr Gradara, you don’t mind to come back tomorrow morning?  This morning we are not going to carry on any more this court.  We come back tomorrow morning, okay?”  “Okay”.

De Marchi bring counsel with him and this counsel…..I or anybody cannot take a solicitor into the witness box and he had paper upon paper.  You know last time I rushed to the library with a book and I find a court on the law and when the judge pick up all the papers I…..and say, “I want to examine all these paper by myself” and before he went through that door, I remember now, I said, “May I can help you?”  The judge turned around and said, “Well, how you can help me.”  I said, “Well, I have a point in the law.”  I say, “Put De Marchi in the witness box.”  When I say, “the point of law”, he said, “Wait a minute” and take a pencil, “and I want to write down your point of law.”  I say, “In the summary proceeding in 1975 under section 6282, page 486, chapter 54, paragraph (1) says, “If a person does refuse to go in the witness box, the judge shall be put in seven days in gaol.”  So, De Marchi have to face gaol or go to the witness box.  So, he was forced to put again to go in the witness box.   No, any more drop the case and go home and be rude.  He had to go into the witness box.

I ask him what happened on 13 August 1984?  He said he give me a cheque and I signed with him after request of a biro.  I said, “No, I never handle the cheque.”  He said, “Yeah”, I gave there Mr Percy investigation of the Bank write to me and say, “You, Mr Gradara, never handle this cheque.”  Never.  The police tested if there was any signature on the cheque.  Tested my fingerprint.  Was no fingerprint found.  So, therefore, the judge ask him again, “Mr De Marchi, did Mr Gradara sign with a pencil his signature?”, and he become red and say, “No, with a biro, your Honour.”  The judge has the cheque in front and the receipt and he called the counsel and said, “Look, look here, Mr De Marchi try to stand up by holding up his lace shoes and De Marchi become red, he relies he lost the court and that court was everything fine.  I was winning that court.  I did not know that 14 days later they completely reverse the case, Judge Tuppen.  They completely reversed and furthermore they were to mark all the documents before they send to Little Bourke Street.  After one month you will have the document.  I did not have the documents after one month because already went to the Supreme Court.

Most of the evidence was waiting seven months and I went every week to Judge Tuppen and to the Attorney-General.  The Attorney‑General was no bars, steel bar, but after so many times that I have been down there they put steel bars in the window because they could not give me - somebody holding up, the document.  Somebody does not want the official document become the truth and dispose this fraud.  So, I went before Judge Cummins in the Supreme Court and asked me, “Why don’t you enter the Ombudsman”.  I say, “I already been to Ombudsman.”  Judge Merkel also suggested to go to the Ombudsman.  I say,…..Judge Merkel.  The Ombudsman does not help you whatsoever because he been paid by the Bank and work for the Bank.  He explained to me on a letter because I went to the…..August 1987.  I went for one month day by day and I was sue – I was trespasses charges.  Three time and five time I been down there and three time I was trespassing.  I wanted to just talk to him about being in court.  I want this evidence to be in the court and say, “All it is you say you write down here that you have to go with Peter Lukatis?.”  And Peter Lukatis what to do, had to talk to the DPP and the DPP does not want to show these things, for this reason:  I take the subpoena also to John Wayne to come in the court and discuss with me this case.

Why does not…..give me this evidence in the court?  Why did they want to show the truth?  And, furthermore, when the police charge De Marchi and it finish up it was a disaster to De Marchi in the Magistrates Court, the solicitor - De Marchi’s solicitor abandon the issue, he steal.  “You’re a liar, De Marchi” and he went away.  In the County Court was different.  One could not be charged De Marchi, unless you got the consent of Attorney‑General and Mr Byrne show that he got a letter from…..in February 1992 that more, more court against De Marchi.  De Marchi even plead guilty and yet was no court, no trial.  He was put paid to be any trial.  He was finish if he was to present the original receipt and cheque and everything.  As a solicitor, he plead guilty.  He plead guilty in that court.  Despite that, you know, Judge Braun he said, “You go away, De Marchi.”  Why?  Because the Attorney-General intervene and that is why, your Honours, I want to show you here there is this political people, big people who interfere with the court.

Justice Kirby says on 11 April 1995, there is a video here, that one’s case like mine come to the court and die at his own birth.  They do not want the truth, they become – everybody knows what is the truth.  That is the reason why I am here today, to fight.  I produce so many subpoena and the judge – all the time Judge Power say, “Sit down, Mr Gradara.  We will look after.”  I done two court with Judge Power and they do not produce – they did not ask for comply with subpoena.  I do not need to convince Judge Braun, his Worship, he said, “Mr Gradara, sit down, Mr Gradara.  If you prove that De Marchi was right – your signature right…..It is true that De Marchi should lie to you and to everybody, to every Bench.  Not only he lie but also the solicitor….they had the cheque in his own name.  They can go to Mr Percy and Mr…..of the Bank, ask why ‑ ‑ ‑

GUMMOW J:   Mr Gradara, this has to be taken down.  If you speak too fast the shorthand writer cannot - - -

MR GRADARA:   I am sorry, I am very sorry.  When I see talking the truth I am not fearing nobody.  You have to understand, you know, your Honour.  Anyway, to cut is short, I try to who is responsible……I write down to write many other things and I found out they stop in the court – why they got no jurisdiction, all the judges, because of this motive, because they got no consent of the Attorney-General to carry on this case.  Now, I want to cut short.  I want to…..right here.  They say in this affidavit here Eleanor Lam how she has got a case to mislead because Justice Merkel believe in what the submission was.  I read the submission of her and the Crown and, “Mr Gradara, deal with the submission.”  If he not tell the truth, he is under oath.  I say, “She doesn’t tell the truth.  She only just misconceives the truth because in his own affidavit he says here that the payment of $3,500 was from the proceedings that cheque Dino De Marchi, as a solicitor, who formerly acted for Mr Gradara.  He retained this money.  But how can possible?  Legal aid was six months – one year and a half, nearly two years, fighting for this money that De Marchi should be paid back this money to Legal Aid and De Marchi also I state to him……$1,500 and this solicitor…..how did we call it, says, “Oh, he retain this money as a cost from me from the work he done” and she refers to the Judge Power to the Full Court.  The Full Court says, they believing what she said, that this money has been retained, but if it is retained why legal aid to write then…..of the letter to De Marchi which they show to me.  They said you make appeal to make the truth come out.  They show to me De Marchi was breaching assignment that he had, that he did not retain the money and the solicitor say that he retained the money.  I say quite confused over this solicitor.  Therefore, if you want to read it here I can read it to you.  All the case…..of the solicitor of the Director of Legal Aid and she write to Mr De Marchi on 12 December 1985 and say this file has been referred to me for investigation because of apparent breach by you of the term and condition

of assignment.  It appear that you fail to keep out of money received by you on…..on behalf….to send money to cover the cost of assignment this letter and you have by your action prejudiced the Commission’s right to recover the cost of the contribution.  Please provide an explanation of the whole matter.

De Marchi say, “We’ve been short money.  Gradara has a debt.”

GLEESON CJ:   Mr Gradara, you have come to the end of your time now.  Thank you, Mr Gradara.

MR GRADARA:   I would like to explain to you every particular how liar they are.  Can you leave it here so maybe I can take out when I finish up.

GLEESON CJ:   In this matter the Court is of the view that the decision of the Full Court of the Federal Court was correct and, for that reason, special leave to appeal should be refused. 

Do you make an application for costs, Mr McNamara?

MR McNAMARA:   Yes, I do, your Honour.

GLEESON CJ:   Yes.  Do you want to say anything about costs, Mr Gradara?  Is there any reason why we should not order you to pay the costs of the respondent?

MR GRADARA:   It is ridiculous; absolutely ridiculous, your Honour.  If you got everyday so much a liar, how they misconceive the…..and they make fool of the judges by this submission.  They got to choose two things:  hospital or prison.  I went to the police and I went – the public prosecution.  The public prosecution say if they make me commit perjury, you go to the police.  I went to the police.

GLEESON CJ:   Thank you.  We have heard you about that.  Thank you, Mr Gradara.  The applicant must pay the respondent’s costs of the application. 

The Court will adjourn now until Tuesday, 2 March 1999, at 10.15 am in Canberra.

AT 2.34 PM THE MATTER WAS CONCLUDED