Horvath v Commonwealth Bank of Australia & Anor

[2005] HCATrans 316

[2005] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2005

B e t w e e n -

GABOR HORVATH SENIOR

Plaintiff

and

COMMONWEALTH BANK OF AUSTRALIA

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MAY 2005, AT 9.33 AM

Copyright in the High Court of Australia

MR G. HORVATH SENIOR appeared in person. 

MR A. P. TRICHARDT:   May it please the Court, I appear on behalf of the first defendant, the Commonwealth Bank of Australia.  (instructed by Commonwealth Bank Group Legal Services)

MS H.M. RILEY:   If it please your Honour, I appear for the second defendant.  (instructed by Australian Government Solicitor) 

HIS HONOUR:   Now, Mr Horvath, you appear for yourself? 

MR HORVATH:   Your Honour, I appear on behalf of myself. 

HIS HONOUR:   Yes, perhaps if you would be good enough to have a seat.  As the parties have been informed, I hold shares in Commonwealth Bank of Australia.  That shareholding is not substantial.  I do not consider that it embarrasses me in the conduct of this matter.  I do not consider, subject to anything that the parties may say, that I am disqualified from hearing the application.  Is there anything that any party wishes to say about that aspect of the matter?  Mr Horvath? 

MR HORVATH:    I have no objection, your Honour. 

HIS HONOUR:   Thank you, Mr Horvath. 

MR TRICHARDT:   I have no objection. 

MS RILEY:   No objection. 

HIS HONOUR:   Mr Trichardt, Ms Riley.  Thank you.  Now, it is your application first, I think, Mr Trichardt.  What are the affidavits upon which you rely in support of the summons of 15 February 2005? 

MR TRICHARDT:   That is the affidavit of Mr Cullen Ross Thomson, dated 15 February. 

HIS HONOUR:   Is there any objection to the reception of any part of that affidavit, Mr Horvath? 

MR HORVATH:    Yes, your Honour.  It is…..out of court.  They have then charged for it. 

HIS HONOUR:   Yes, to what part of the affidavit do you object, Mr Horvath? 

MR HORVATH:    The whole part of it.  All of the application is a contempt. 

HIS HONOUR:   Yes.  Why is it a contempt of court, Mr Horvath? 

MR HORVATH:    “In the face of the Court” – Part 11 of the Court Rules:

When it is alleged, or it appears to the Court, that a person (the alleged contemnor) has been guilty of contempt of Court, committed in the face of the Court or in the hearing of the Court –

but in this time it is a hearing of the Court as it already began.  He is in contempt. 

HIS HONOUR:   Yes.  What do you say ‑ ‑ ‑

MR HORVATH:  

the presiding Justice may, by oral order, direct that the alleged contemnor be arrested and brought before the Court forthwith or may issue a warrant under the Justice’s hand for the arrest of the alleged contemnor. 

Each of these persons are in contempt.  They are contemnors. 

HIS HONOUR:   Yes.  Why do you say they are in contempt?  What is the contempt? 

MR HORVATH:    I rely on my affidavit.  

HIS HONOUR:   Which affidavit is that, Mr Horvath?  Can I just be sure? 

MR HORVATH:   It is filed and sworn on 9^th day of May. 

HIS HONOUR:   Just one moment, while I find that.  Yes, I have that affidavit.  You rely on that? 

MR HORVATH:   Yes.  

HIS HONOUR:   Yes, I have read that.  Is there anything else you want to add at the moment on this question of whether I should receive the affidavit of Cullen Ross Thomson filed on 15 February 2005? 

MR HORVATH:   No, your Honour.  You should not receive it.  You should dismiss and strike out the whole application. 

HIS HONOUR:   Yes. 

The first defendant in the present proceeding, Commonwealth Bank of Australia, moves on a summons dated 15 February 2005 for an order that the writ of summons filed by the plaintiff, Mr Horvath, on 5 January 2005 be struck out with costs.  In support of that application, the first defendant relies upon the affidavit of Cullen Ross Thomson sworn 15 February 2005. 

Mr Horvath contends that I should not receive that affidavit because both the filing of the affidavit and the making of the application to strike out the writ of summons constitute a contempt of this Court. In that regard, Mr Horvath draws attention to the provisions of Part 11 of the High Court Rules 2004 and in particular the content of rule 11.01.1, concerning contempt in the face of the Court. In aid of his contention that there is a contempt, Mr Horvath points to his affidavit sworn on 9 May 2005 filed in the matter. In this affidavit Mr Horvath deposes to the fact that he is the plaintiff in the proceeding. He confirms that he will appear on the return of the application by the first-named defendant and seeks in his affidavit of 9 May, as he puts it, to sum up his affidavits earlier filed in the proceeding.

In his affidavit, he makes various contentions which, in substance, repeat a number of the matters that are mentioned in his statement of claim, but, in addition, record the fact that in March of this year Mr Horvath commenced a proceeding against Cullen Ross Thomson in the Magistrates Court of Victoria, alleging the offence of perjury. Later in the same month, he instituted proceedings in the Magistrates Court of Victoria against Mr Thomson and also against Evan Evagorou of the Australian Government Solicitor, alleging, amongst other things, breach of section 24AA of the Crimes Act 1914 (Cth) in that the accused committed an act of treachery by doing an act with intent “to overthrow the Constitution of the Commonwealth by . . . sabotage”.

Those proceedings, so far as I am able to understand it from the papers that have been filed, have subsequently been taken over by the Director of Public Prosecutions of the Commonwealth, who has indicated that he does not intend to proceed further with them. 

In my opinion, none of the matters mentioned by Mr Horvath orally, nor any of the matters which is referred to in his affidavit of 9 May 2005, reveals any reason why the affidavit of Cullen Ross Thomson sworn 15 February 2005 should not be received on the hearing of the first defendant’s application.  Accordingly, the objection to its reception is overruled. 

Now, Mr Trichardt, the affidavit, as I understand it, deposes to a comparison in paragraph 5 of the allegations made in the proceeding with

which we are presently concerned, namely, matter No M2 of 2005, with a proposed proceeding the subject of an application for leave to issue process, which is matter M187.  First, do I understand the affidavit correctly in that respect? 

MR TRICHARDT:   That is correct, your Honour. 

HIS HONOUR:   Secondly, I understand it to swear to the content of the two statements of claim being “in all material respects identical” save for a reordering of paragraphs.  Do I understand what is said in the affidavit? 

MR TRICHARDT:   That is correct. 

HIS HONOUR:   Is there anything further about that comparative exercise to which you would draw my attention? 

MR TRICHARDT:   Yes, your Honour.  The proposed statement of claim in matter No M178 of 2004 was the subject of consideration by the honourable Justice Gummow, and the judgment of Justice Gummow is attached to the affidavit of Mr Thomson in “CRT-2”.  In the judgment of Justice Gummow, he came to the conclusion and finding that the: 

Declaratory relief is sought apparently upon the basis of rights to full faith and credit said to be enjoyed by the plaintiff pursuant to s 118 of the Constitution. No rights such as those asserted here can arise under s 118. Further, and in any event, the proposed statement of claim is fundamentally defective in form and on its face an abuse of the process of the Court –

and leave was refused.  My submission is that those statements by Justice Gummow are equally applicable to the present statement of claim. 

HIS HONOUR:   Yes.  I understand the contention.  I see, also, that the affidavit deposes to various other matters, but, subject to anything that you may say to me, it would seem to me that the centre of the application is the contention that this is a repeat of proceedings which earlier had been held to be an abuse? 

MR TRICHARDT:   That is correct, and just, on its face, it is unintelligible and does not disclose a cause of action. 

HIS HONOUR:   Yes.  Now, Mr Horvath, what I would propose to do is to next hear from Ms Riley in support of her client’s application to strike out the proceeding, and then to hear from you in answer to both Mr Trichardt and Ms Riley.  Yes.  Now, Ms Riley, your summons is, I think, that of 23 February 2005, is that right? 

MS RILEY:   Yes, that is correct, your Honour. 

HIS HONOUR:   And upon what affidavit do you move in that connection? 

MS RILEY:   We rely on the affidavit of Evan Evagorou, which is sworn 23 February 2005. 

HIS HONOUR:   Yes.  Just one moment, while I find that.  Yes, I have that affidavit and you read that.  Mr Horvath, is there any objection to my receiving the affidavit of Evan Evagorou of 23 February 2005? 

MR HORVATH:    Yes, your Honour.  He is referring to Thomson’s affidavit.  He has read – that is why he says he has read Thomson’s affidavit and he refers his case to Thomson’s affidavit.  That is a contempt, too. 

HIS HONOUR:   Yes, thank you. 

For the reasons I gave earlier in connection with the affidavit of Mr Thomson, I am of opinion that the affidavit of Mr Evagorou, sworn 23 February 2005, should be received. 

Now, Ms Riley, do I understand paragraph 4 of that affidavit to make, as it were, the same point that Mr Trichardt made in connection with the application by Commonwealth Bank, namely, identity of proceedings? 

MS RILEY:   Yes, indeed.  That is the point we seek to make there.  Additionally, we refer to a decision by Justice Heydon, refusing Mr Horvath leave in another proceeding, where ‑ ‑ ‑

HIS HONOUR:   What, if anything, though, am I to make of that?  This is an application that is confined, I think, subject to anything you may say, it would seem to me that I should confine my attention to this proceeding.  The argument you make is, “Well, this is simply a rerun of an earlier proceeding for which leave to issue was refused as an abuse”.  What do I get out of looking at what other process Mr Horvath may have either issued or attempted to issue, whether in this Court or elsewhere? 

MS RILEY:   Well, we would simply say that for the reasons given in that other proceeding, this case as well is a case in which no matter of fact has been shown that would indicate that the causes of action are available.  We would more or less adopt what was determined in the other case.  It was also determined that the writ of summons was an abuse of process and frivolous and vexatious.  So we do, essentially, rely on what is set out in

this application, but simply refer to the other and rely on the reasoning there as being applicable to this case. 

HIS HONOUR:   Yes, I understand that.  Thank you, Ms Riley.  Now, Mr Horvath, having heard the arguments by both defendants against you, now is your opportunity to answer those arguments. 

MR HORVATH:    I object to it completely because my application, which is in 2005 – it has been accepted by this Court and has nothing to do with that, is not appealed. There was no appeal against M197 or whatever the application was before. If they would have wanted, they could have appealed it, but to bring it up in this case, against an application which is…..they cannot do that. It is just dismissible. It has nothing to do with the case what we have in front of us and I object to it under the Constitution. I talk about 187 – I mean, not 187. There is in my affidavit exhibited “GHAA” ‑ ‑ ‑

HIS HONOUR:   Yes, I have that. 

MR HORVATH:    ‑ ‑ ‑ which is a Supreme Court Act, “Division 4 – Contracts of Minors” 49, 50 and 51. 

HIS HONOUR:   Just one moment, Mr Horvath.  I have, I think, the wrong exhibit.  Exhibit which?  “GH8”? 

MR HORVATH:    “GHAA”.  That is the first one. 

HIS HONOUR:   Just one moment, yes.  Yes, I have that. 

MR HORVATH:    Well, it is a Victorian Supreme Court Act at sections 49, 50 and 51, “Division 4 – Contracts of Minors”. The whole case goes around this Act, which the Commonwealth Bank and Mr Thomson, especially Mr Thomson, who has disobeyed the Constitution, did not give full faith and credit to that Act and with perjury he acted against me and my wife and my son in the courts of the Supreme Court and the Federal Court by perjury, which he had been charged for. I charged him before, but the court has put it aside. And to the point of the Public Prosecution – we mentioned that before – the Public Prosecution has not taken over. The Public Prosecution only has taken over the treachery act against Evagorou. But the perjury is still pending in the Magistrates Court and Mr Thomson, he is charged for treachery and perjury and it is pending in the court. I shall continue those charges. Has he been told by the Magistrate – he will never get out of it. It does not matter what he will establish in this Court, this Court has no power on a criminal Act in the State jurisdiction and the State will deal with him according to the Act.

HIS HONOUR:   Yes. 

MR HORVATH:    And to argue it any further, I will not, because I have nothing to argue but what I have put in here. It is all perjury. It is all lies. And to bring it into the Court knowingly and wilfully when they know it is lies, that is a contempt. I just would like to read out section 118:

Recognition of laws etc. of States

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State. 

And the Preamble, clause 5: 

Operation of the Constitution and laws

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding –

I think that is all. 

HIS HONOUR:   Yes.  Thank you very much, Mr Horvath. 

On 5 January 2005 the plaintiff, Mr Gabor Horvath Senior, filed a writ of summons naming Commonwealth Bank of Australia and Commonwealth of Australia as defendants.  The defendants entered conditional appearances to that writ, but each now applies for an order that the writ be struck out. 

As the material received in evidence in support of the applications to strike out reveals, Mr Horvath is no stranger to litigation.  He has commenced or sought to commence several proceedings in this Court, directed, so it seems, ultimately, to challenging the recovery of possession by Commonwealth Bank of Australia of certain land in Dandenong South, and challenging various bankruptcy proceedings that were brought against him, his wife and his son.  These bankruptcy proceedings appear to have occurred as long ago as 1996.  Precisely when the transactions concerning the land at Dandenong South took place does not readily appear from the plaintiff’s statement of claim. 

Be this as it may, the critical fact in the present matter is that on 19 October 2004 the plaintiff sought to file a writ of summons in this Court naming Commonwealth Bank of Australia and Commonwealth of Australia as defendants, which I directed the Deputy Registrar not to file without the leave of a Justice first had and obtained.  On 21 October 2004 Mr Horvath sought that leave, but on 9 December 2004 Justice Gummow refused leave. 

The statement of claim delivered with the writ of summons in the present matter makes the same allegations as were made in the earlier proposed proceeding, but presents them in a different order.  Reordering the paragraphs does not make the claim or claims any clearer than they were in the proposed proceeding the subject of orders by Justice Gummow.  It is still right to say of the present proceeding, matter M2 of 2005, as Justice Gummow said of the earlier proposed proceeding, that: 

Declaratory relief is sought apparently upon the basis of rights to full faith and credit said to be enjoyed by the plaintiff pursuant to s 118 of the Constitution. No rights such as those asserted here can arise under s 118. Further, and in any event, the proposed statement of claim –

I interpolate, in that earlier proposed proceeding –

is fundamentally defective in form and on its face an abuse of the process of the Court. 

For like reasons, the present proceeding is vexatious and an abuse of process.  The proper order is that the action be dismissed. 

Mr Trichardt? 

MR TRICHARDT:   Your Honour, I would just ask that it be dismissed with costs. 

HIS HONOUR:   Yes.  Ms Riley? 

MS RILEY:   We seeks costs as well, your Honour. 

HIS HONOUR:   Yes.  Mr Horvath, is there any reason why costs should not follow the event? 

MR HORVATH:    Yes, your Honour. Costs should not follow. I totally object against your judgment. Under the operation of the Constitution of law I do not accept and respect your order. According to my reading of this Constitution ‑ ‑ ‑

HIS HONOUR:   Mr Horvath, I asked you a precise question.  Is there any reason why costs should not follow the event? 

MR HORVATH:    This is my precise answer on the costs. 

HIS HONOUR:   Yes, do go on. 

MR HORVATH:    So I do not accept the order.  And the costs – how could you order costs against a person where for 15 years they are sucking my blood – that person there and the Commonwealth Bank. 

HIS HONOUR:   Mr Horvath, you will moderate your ‑ ‑ ‑

MR HORVATH:    And by this law ‑ ‑ ‑

HIS HONOUR:   Mr Horvath, be silent.  You will moderate your tone and your language.  Do you understand me? 

MR HORVATH:    Yes, your Honour. 

HIS HONOUR:   Now proceed.  Go on. 

MR HORVATH:    And according to this Constitution, I have every right to say in this Court whatever I want, because you are all equal to this Act. We are all equal in front of the Constitution, according to this Act. You and me and everybody else in this Court should obey the Constitution as it is written, because it is an Act. There is no way out of it. That is all, your Honour. Thanks.

HIS HONOUR:   Thank you very much.  The order is that the action is dismissed with costs, including the costs of these applications. 

AT 10.05 AM THE MATTER WAS CONCLUDED