Jorgensen v Australian Securities and Investments Commission

[2009] HCATrans 188

[2009] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B9 of 2009

B e t w e e n -

ALAN BRADLEY JORGENSEN

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Application for reinstatement

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 11 AUGUST 2009, AT 10.28 AM

Copyright in the High Court of Australia

MR A.B. JORGENSEN appeared in person.

MR P.J. DAVIS, SC:   I appear with MR J.W. PEDEN for the respondent.  (instructed by Australian Securities and Investments Commission –Brisbane)

HER HONOUR:   Mr Jorgensen, you have filed a summons with a supporting affidavit.

MR JORGENSEN:   That is correct, your Honour.

HER HONOUR:   I have read those documents.  Could you read your material, Mr Davis?

MR DAVIS:   Yes, thank you, your Honour.  I read an affidavit of John Gary Preat filed 10 August 2009 and the summary of argument filed on 7 August 2009.

HER HONOUR:   Thank you.  I have also read the grounds for the application for special leave itself, which I have taken into account.

MR JORGENSEN:   Yes, your Honour.

HER HONOUR:   Now, I think it is fair to say, Mr Jorgensen, that the ASIC does not take issue so much with the length of the delay or your explanation for the delay.

MR JORGENSEN:   Is that one day, your Honour, we are talking about?

HER HONOUR:   Yes.  In their written submissions they do not seem to take exception or say that they have suffered prejudice by reason of delay.  The point that they make is that there is no purpose to the application for reinstatement because the application for special leave has no real prospects of success at all and should not be allowed to go forward.  That is a matter within the discretion of the Court on an application such as this.

MR JORGENSEN:   That is their argument which is obviously ‑ ‑ ‑

HER HONOUR:   In that regard I have read your grounds for special leave in light of what they have said about the lack of prospects of your case.  You might wish to address that further.

MR JORGENSEN:   Yes, your Honour.  In reading some law on this matter, your Honour, it seems to be that there has been much said on those issues you are referring to as to the merits that will ultimately be determined by the High Court if leave was ultimately granted, so today ‑ ‑ ‑

HER HONOUR:   The question for today really is whether you have identified a matter which would succeed on special leave which means to identify some error, some important error, some point of general principle but in the way that your grounds of appeal have been approached I think what you are trying to do is to point out some error in the Court of Appeal’s reasoning.

MR JORGENSEN:   That is right, your Honour.  What I started to say, if I can continue, was that the concept of an appeal being allowed to proceed in its normal manner provided that the appeal is not totally devoid of merit is what I believe is the…..of the High Court judgments on that.  So I am saying today is not the day where one should have to assemble all one’s ability and forces there to meet that argument.  So I would contend that, your Honour, in line with High Court authority, as long as the application for special leave and ultimately the appeal to the High Court, if I were successful, as long as it is not totally devoid of merit so I would argue that today is not the day when one has to look at every detail because it is really having two trials then and that is, as I understand it, the way the Court interprets it.  So as long as today there is some merit – it does not mean to say it has to win, of course – as long as it is not totally devoid of merit ‑ ‑ ‑

HER HONOUR:   But that is the point they are making against you, you see.  I think it would be accepted that merits can be taken into account in an application for reinstatement.  It would only be in a case where there were no real prospects of success or, as you say, devoid of merit that an application would not be permitted to succeed but that is the very point that they are making against you.  They are saying that it has no chance of success at all.

MR JORGENSEN:   With all due respect, your Honour, it seems that unless they are taking a line out of the High Court written authorities on this, as long – the day to decide on that is when one prepares suitably for the challenge on the real merits of that case.  Today I believe was only to address – providing it was not totally devoid of merit – that whether an application for special leave should be struck out because the draft notice of appeal in error was signed by the solicitor.

HER HONOUR:   There is sometimes a misunderstanding by litigants in person about what “devoid of merit” means.  “Devoid of merit” means that it has no real chance of succeeding on an application for special leave.  It does not mean that something is not sufficiently with merit just because some grounds have been put together for an application for special leave.  The question is whether or not the grounds as identified have any real chance of succeeding.

MR JORGENSEN:   If that was the threshold for today, that is 2(i), is it excusable because an unrepresented litigant instructed his solicitors who perhaps should have known better anyway, but anyway, instructed his solicitors to sign each of the papers before they filed them and I would respectfully suggest, your Honour, that with all the special rules in High Court applications and documents it is certainly a minefield I have experienced myself.  As much as I have read the Rules and read what Ruth Cheetham says down in Canberra, but certainly on that issue first, if I could just talk on that, nowhere – and even now I have read back on the Rules and in correspondence, I cannot see, unless I have missed it, I cannot see anywhere where it says the draft notice of appeal must not be signed and certainly in Ms Cheetham’s letter leading up to the preparation of those documents she put in bold letters that you are to prepare the draft notice of appeal and the summary, but you are not to serve that on ASIC.

So I am a little bit surprised that, given I am an unrepresented litigant, that if that was such a critical issue that the draft notice of appeal should not be signed, I am disappointed that she did not at least put a sentence to say that.  She covered the other issues in the letter and that is ‑ ‑ ‑

HER HONOUR:   These are not matters which you have taken up in your affidavit, are they?

MR JORGENSEN:   I did, your Honour.

HER HONOUR:   This is the basis – I mean, in your affidavit you explained that you came to file in the Court ‑ ‑ ‑

MR JORGENSEN:   On page 3 of my affidavit, your Honour, on 8 June ‑ ‑ ‑

HER HONOUR:   Just let me go back to that.

MR JORGENSEN:   On paragraph 5, I deal with it there.  Should I read that, your Honour, or do you want to just read it?

HER HONOUR:   No, just let me find it again.  Paragraph number?

MR JORGENSEN:   It is 5 on the third page.  I do have that letter from Ruth Cheetham at that time, your Honour, if that can help the Court in any way.  I can hand it up if that is going to be of assistance.  It was a couple of pages and as I said it was totally conspicuous by its absence was the requirement not to sign the draft notice of appeal.  So I am just wondering how a person like myself would be aware that you do not sign the draft notice because nearly every ‑ ‑ ‑

HER HONOUR:   The draft notice of appeal was lodged on the last day, on the date it would have been deemed abandoned.

MR JORGENSEN:   That is correct, your Honour.

HER HONOUR:   So it is lodged on the last day and it is not in the correct form.  So it is rejected.  That is what happened.  It was signed and it should not have been signed. 

MR JORGENSEN:   Yes.  There are two other documents – the summary and whatever.  They were executed properly and were accepted by the Court and date stamped but, because it was late in the day, the Registry said that it should not be signed so he asked them could he just white it out and photocopy and then we will have one unsigned and they said apparently, no, and that was deposed to in my affidavit exhibit.  So then he went back the next day with an unsigned version and filed it and what I am saying, your Honour, is that I just do not know where anywhere in the Rules or letter from Ruth Cheetham, I cannot – I have looked back since, I cannot see where it says that.  So I would have ‑ ‑ ‑

HER HONOUR:   It is probably determined by what the words “draft notice of appeal” means.

MR JORGENSEN:   I have filed a lot of documents in courts over years, your Honour, and nearly every single document I have ever seen you have to sign them and certainly I was not being – my mind was not turned to well, maybe you do not have to sign it and so when I said to the lawyer, as I said, “We perhaps should have known”, I said, “They need original signatures so you’ve got to sign each of the documents and file them with the Registry”.  So the lawyers did not alert me to that and certainly if they had have, it obviously would have taken a minute to fax them through a blank one or they could have whited out the signature.

So I am saying, your Honour, of all the technicalities that could exist in all the courts in the land, we really, with all due respect, to have a case that has been dragging on for two years here to be thrown out because of that error, I would sort of say it is very harsh and I would suggest that the law is not meant to be so unfair to an unrepresented litigant to strike out such a large matter that has been dragging on for a long time because the solicitor signed a draft notice when there was no advice to the contrary.  So I do not know how often this has come up in court.

The other thing I will say, your Honour, is if the lawyers had have been on file as the solicitor for me instead of being self‑represented, then I do not believe that provision to strike out because of being late applies.  So we are really getting very, very technical when, if a lawyer had have just been on file then it was fine to go in the next day and file it.  They would not have been struck out under that rule.  So once again I would plead with the Court that it would be grossly, manifestly sort of wrong in my view as to strike out a two‑year case that is involving perhaps $300,000 and an enormous amount of time from both parties just over a technicality like that.  As I said, on my reading of the High Court authorities, they certainly do not design the rules to be that harsh.  Was there any interest in you seeing Ruth Cheetham’s letter, your Honour?

HER HONOUR:   If you wish to pass – do you have any objection to me seeing it, Mr Davis?

MR DAVIS:   No, your Honour.

HER HONOUR:   I do not have it on the file that I have.

MR DAVIS:   Does your Honour mind if Mr Jorgensen just showed me first so that we can identify the document?

HER HONOUR:   Yes, of course.  Mr Jorgensen, I think Mr Davis may have a copy.

MR JORGENSEN:   It has some of my scribble on it, your Honour, but I do not think it is anything ‑ ‑ ‑

HER HONOUR:   Show that to Mr Davis first, please.

MR DAVIS:   I consent to that being received.

HER HONOUR:   Thank you.

MR JORGENSEN:   I suppose I am mainly referring to the bottom paragraph on the first page, your Honour.

HER HONOUR:   That is the letter dated 2 April 2009 from Ms Cheetham to Mr Jorgensen.  Yes, well that letter simply reminds you of the date by which the draft notice of appeal must be filed.

MR JORGENSEN:   It also, your Honour, refers to ensuring that I do not serve it on ASIC on the bottom paragraph, but I am just saying that ‑ ‑ ‑

HER HONOUR:   That is right.

MR JORGENSEN:   ‑ ‑ ‑ she is being useful there because that probably is contained in the Rules, as I recall, yet she still reminded ‑ ‑ ‑

HER HONOUR:   I will hand the document back.  I do not need to keep a copy ‑ ‑ ‑

MR JORGENSEN:   Yet she still reminded me of that fact and now I am saying that a two‑year case that has been a lot of aggravation involved there is about to be struck out because of such a fine technicality which, as I said, even the solicitor did not know anything about that rule and I certainly did not and as I said I think it would be harsh indeed if the matter was struck out because of that reason.  What do I do here, your Honour, as far as talking about the other part about the merit or lack of merit or ‑ ‑ ‑

HER HONOUR:   Well, you should put the argument – I had thought from what you said before that you were not going to address it, but you should put the argument that you wish to put before I hear from Mr Davis.

MR JORGENSEN:   Yes, okay, your Honour.  I am just saying I am concluding the first part that it would be rather harsh indeed.  The second point, your Honour – you should probably excuse me if I do repeat what I have said earlier, but the High Court authorities there talk about provided the appeal is not totally devoid of merit, however I know, I recall reading the last few weeks there that having said that, they do not want a mini trial – I forget the words they used but it was something like that – a preliminary trial or a mini trial of the ultimate case of seeing if it had any merit.  They do not want to spend time on dealing with that in this preliminary area so, in my respectful submission, that would suggest that the High Court’s view on the matter is that you only have to show that it is not totally devoid of merit rather than have a mini trial on what the merits are.

Certainly, in my material I have not prepared much material other than previously what had been filed with the Court in stumping up the substance of our case ultimately if it was heard by the High Court.  There were a number of issues there that were raised in my previous affidavit there, your Honour, which again that is that 8 June affidavit of myself.  Attached to that is originally the draft notice of appeal which contains also the applicant’s summary of argument dated 13 April.  Please note there, your Honour, that was date stamped 14 March when it was in fact 14 April.  So I just want to clarify that point.  So we are talking about one day late.  It was not predated a month, of course.

But in my applicant’s summary of argument there, your Honour, I would respectfully suggest that the issues being raised there are certainly of such level that they are a long, long way from being totally devoid of merit.  I do not want to go through all the details of the merits unless I have to, but as I said, in reading the High Court authorities on this I have only come prepared here today and in my previous material on really showing that the Court ought to excuse because of the signature on the draft notice of appeal rather than have to run my case at this preliminary stage.

As I said the summons was basically only to reinstate because of the error and I think it would be, again, against High Court philosophy on this matter if, in fact, I get shot down because I have not put enough thrust into the merits of, ultimately, the case that is going to be heard down the track.  Keep in mind, your Honour, I firstly got to cross the bridge – if I get past today it will be filtered out by, I believe, two Justices in Chambers basically if it is devoid of merit.

So if, in their infinite wisdom they find that yes, this fellow is wasting his time, we will not waste the Court’s time, I would have thought that is the appropriate time that I should be filtered out.  Having said that, I would still be expecting in my humble view that my case has been so harshly – well, I think the judgment from the lower court was pretty tough so I would hopefully be expecting the High Court to give leave for the matter to proceed to appeal.

Again, I cannot see why the Court today should involve itself too much on the merits of the ultimate case other than to show that there is still some glimmer of a chance there and for your Honour to strike out today, if we get past the first part, excuse the signature, then I would be, quite frankly, certainly disappointed if, as I said, you struck it out because you said that you ruled that the ultimate appeal had no merit whatsoever.

I can accept the fact if you said, “Look, you would be wasting your legal fees or wasting your time because you’re probably going to lose”.  Then, in my view, that is not good enough to strike out the appeal as being totally devoid of merit and I know that totally devoid of merit is the verbatim word the High Court uses in this context.  Likewise, as I said, they have specifically said – the High Court – that it should not have this mini trial otherwise you are wasting everybody’s time and giving someone a second crack of the whip.

So providing it passed that threshold of not being totally devoid of merit, so out of 100 perhaps you have a 1 per cent chance, would in my view satisfy that criteria.  If I can say, your Honour, if you were minded to think well this guy is wasting his time, but some other judge might have a different opinion, he has probably got less than a 5 per cent chance, well in my view even if you said that is all it had, that should not cause you to strike it out today on the basis of totally devoid of merit.  So my view would be that as long as it had that 1 per cent chance, I respectfully suggest that the Court ought to leave it to the next level for the Judges to strike it out behind Chambers where little costs are going to be involved for both parties to get to that stage.  The two Justices would probably read this material in – I do not know, but rather quickly so I cannot see it wasting too much of the Court’s time, so if it is totally devoid of merit or not totally, if it is devoid of merit then they will strike it out themselves and at least they have had the chance to look at the substance of the case in detail.

I am not sure there, your Honour, but whether you have read my affidavit there but I would have thought that it strikes at the very fundamentals of natural justice if a critical part of the transcript is omitted, as it was in this case, three pages.  The parts of that transcript contain the very essence of what I was appealing about seeking the adjournment because of this and this and this and specifically saying in answer to Chief Justice de Jersey, so this is about costs and I said specifically, as they have seen in my affidavit, I said no, it involved something more than that.  It is to do with – I am the sole director of this company.  The administrators breached their agreement that I could retain my powers and that is why I want this adjournment so as to be able to engage counsel to deal with the very complex matters that ASIC raised as I walking into the courtroom.  I do not know, I will assume you have not read my affidavit but if you could bear with me for just a minute, your Honour ‑ ‑ ‑

HER HONOUR:   I have read it.  I have read all of the material.

MR JORGENSEN:   I had previously said that they are only relying on the old affidavit ‑ ‑ ‑

HER HONOUR:   I have read the reasons for judgment of the Chief Justice and the Court of Appeal.

MR JORGENSEN:   So, in my respectful submission, your Honour, the legal system in my view would be fundamentally flawed or a breach of natural justice if a judgment can be made when someone has left out the three critical pages that my appeal relied on.  So I do not whether it happened very often in the court system, but to me it is terribly wrong when my whole case was relying on that and someone has left the critical three pages out.  So I just cannot possibly see how that can be considered totally devoid of merit.  Just on that point alone it must give the High Court, in my view, some extreme concern how this can happen in our legal system today as it is.  Maybe in China or something it happens, I am not sure, but in the system we have in Australia today a critical part of the transcript which I relied on, for that to be left out ‑ ‑ ‑

HER HONOUR:   I understand the point you are making.

MR JORGENSEN:   So I am saying that cannot be totally devoid and other Justices, even if your Honour was not over‑thrilled with that, I am saying that to me must strike a chord with the High Court Judges how that can happen.  So they ought to, I think, respectfully suggest that they would

want to consider how that affected my appeal being thrown out when that happened.  So it cannot be a case here today on that basis of being totally devoid of merit, not to mention the fact that 253 only refers to only costs when in fact the primary case before Justice de Jersey was that I argued strenuously about my powers as a director being reinstated, not just because of cost, because as a director and the sole director of the company there were things that had to be done.  There was proceedings that had to be issued against several parties, probably including ASIC, and I was unable to do that given I think the wool was pulled over my eyes by the administrators, with all due respect to them.  So they went against their word, et cetera, in writing and all the agreements we had and changed the DOCA just before it was signed.

So I am saying, your Honour, that is what I was seeking an adjournment for from Justice de Jersey, not just over costs.  It was to do with my rights as a director being reinstated so I could attend to some serious litigation but I was shut out and I could see I was going to be shut out and, as I said before, with that new material that ASIC lodged I wanted to be represented by counsel.

So all those facts, your Honour, cannot, in my view, be considered to be totally devoid, that is less than 1 per cent chance perhaps of having any merit.  It is said that in the whole thing - your Honour, this has been running for over two years now, this matter, and there has been a very rough road and to not have been given a chance for this to be given – to be heard because of such a technicality and totally devoid of merit to me this sort of would be most unfair I thought, your Honour.  Thank you.

HER HONOUR:   Thank you, Mr Jorgensen.  Yes, Mr Davis.  I am a little bit troubled by the basis for the rejection of the filing of the documents, Mr Davis.

MR DAVIS:   Yes.  Can we say a couple of things about that.  Firstly, if your Honour goes to Mr Jorgensen’s application, the application is for reinstatement.

HER HONOUR:   Yes.

MR DAVIS:   That, of course, rather assumes that it has been accepted that the application for special leave stands abandoned. 

HER HONOUR:   Yes, but his affidavit does not.

MR DAVIS:   Well, with respect, your Honour, if your Honour goes to paragraph 6, it does rather assume that the application ‑ ‑ ‑

HER HONOUR:   I suppose the result is that it is deemed abandoned because it was not accepted for filing.  The question is whether or not the technicality that attended the rejection of filing should weigh strongly in relation to reinstatement to at least allow his matter to be considered and whether it is appropriate in those circumstances really to proceed to consider the merits of the matter.

MR DAVIS:   Yes.  Your Honour, the first point perhaps is what was the status of the abandonment and that is under rule 6.07.

HER HONOUR:   But the solicitors here say it was rejected because it was signed.

MR DAVIS:   Yes, and there is good reason for that because if it was signed it would be a notice of appeal.

HER HONOUR:   Yes.

MR DAVIS:   The notice of appeal cannot be filed unless he has special leave, which he has not.

HER HONOUR:   Yes, I understand that, but they would not allow them to remove the signature to convert it to a draft notice.  It seems a little bit harsh on the last day.

MR DAVIS:   Well, it may be harsh but I should say for perhaps Mr Jorgensen’s benefit that we do not submit that he has not explained the delay.

HER HONOUR:   Yes, I understand that.  It is more a question of whether someone in his position from the Court’s perspective would feel that they had not had a fair opportunity of presenting their case because at the last moment that chance is taken by an understandable, but rather technical, view taken by the Registry.

MR DAVIS:   But then the next question, in our submission, is this, that if one assumes for a moment that the document was correct and ought to have been accepted Mr Jorgensen still does not, under the Rules, obtain a special leave hearing.

HER HONOUR:   No.

MR DAVIS:   He obtains a consideration by two Justices.

HER HONOUR:   Yes.

MR DAVIS:   Which is clearly, in our submission, a decision on the merits, perhaps a different set of merits to the special leave application ‑ ‑ ‑

HER HONOUR:   But he does have two Justices considering.

MR DAVIS:   But it does have two Justices and I accept that, of course.  In our submission, if we can reach the hurdle that it has no merits, that this application has no merits, the special leave application, then no injustice is done because the authorities are such, in our submission, that if that test is satisfied then a single Justice sitting at this stage can dismiss the application and he has lost nothing.  That is our submission in relation to that.

So we rely upon rule 6.07 and say that there was power in the Registrar to reject the document because the Registrar formed the state of mind which was a prerequisite to the exercise of the power to reject and your Honour will see that the prerequisite to the power to reject is that the document appears to a registrar on its face to be an abuse of process.  That, of course, is the filing of a notice of appeal without leave.  So that enlivens the power.  The Registrar has exercised the power.  This application is probably the wrong application anyway because there should really be an application to review the decision by the Registrar.

It is all very well and good for Mr Jorgensen to say that he is self‑represented and we understand that, but that does not excuse compliance with the Rules, we respectfully submit.  So if one gets to that point he is in a position, we submit, that he must seek reinstatement.  The Rules provide – and whether Mr Jorgensen complains that there should not be a distinction between someone who is self‑represented and someone who is not, he seemed to make that complaint, the Justices of the Court have made the rules and they are the rules and such a distinction is drawn.

Once we get to that point it does fall to your Honour to consider the one point that we raise and that is that Mr Jorgensen’s special leave application is devoid of merit.  If your Honour got to that point, in our submission there would be no either injustice to Mr Jorgensen or any appearance of injustice. 

To that end, could I then take your Honour perhaps quickly to the draft notice of appeal.  On page 2 at paragraph 2 are the grounds.  Now, 2(i) relies on the refusal to grant an adjournment.  Of course the refusal to grant an adjournment was simply a decision by the Chief Justice on the way to making the order which is the subject of the appeal, which is the costs order.  In our respectful submission, that is really quite obvious and that is what the Court of Appeal found.

The second ground of appeal is that ASIC also argued in their strike‑out application that the appellant’s grounds of appeal were without substance. Now, that is true and when the appeal came on for hearing Justice Keane indicated that he was not of a mind, or the court was not of a mind, to entertain that part of the argument but would entertain the argument under section 253. That can be seen from paragraph [18] of the Court of Appeal’s judgment and there, your Honour, can we say respectfully, Justice Keane accurately records the exchange. His Honour indicated that it was best just to deal with the 253 issue and we did not argue for a different approach. So that really is the end of ground 2(ii).

Ground 2(iii) seems to complain that the Court of Appeal ought to have allowed the appeal to proceed simply because there was an appeal date which was set six weeks later.  That, of course, does not in itself attack the substance of the decision of the court which was that the appeal was incompetent and, of course, at paragraph [19] of the Court of Appeal’s judgment, again, with respect, the court correctly records that Mr Jorgensen was given the opportunity for the application to be adjourned so that Mr Jorgensen could go and make application before the Chief Justice of Queensland for leave and Mr Jorgensen declined to seek an opportunity to cure that defect.

HER HONOUR:   Yes, I noted that.

MR DAVIS:   That being so, one, with the greatest respect to Mr Jorgensen, can hardly understand what the point is in ground (iii) and even if there is a point, it is one that must surely be just a matter of discretion exercised by the Court of Appeal of Queensland and would not, in our submission, have any chance at all of being elevated to a special leave point.

Then if one goes to ground (iv), this is the error in the transcript and that is dealt with in Mr Preat’s affidavit.  Could I take your Honour to that, please, and can I take your Honour firstly to exhibit JGP1 and this is the transcript of the proceedings as the transcript appeared in the appeal book before the Court of Appeal of Queensland.  If your Honour goes to page 10 your Honour will see the words there “take in order”.  Now, that is the part in the transcript where there has been the error.  Your Honour will see, if your Honour goes back a page to page 9, line 40, that the application for the adjournment was all to do with the winding‑up application and Mr Jorgensen’s insistence ‑ ‑ ‑

HER HONOUR:   This is when Mr Jorgensen was asserting the right to appear for the company.

MR DAVIS:   Yes, and to interfere with decisions ‑ ‑ ‑

HER HONOUR:   That was a step towards the costs order, but it was a preliminary step, I think, as it was described in the Court of Appeal.

MR DAVIS:   It was a preliminary step.  It probably is also a step that has nothing to do with the appeal to the Court of Appeal because in the end ‑ ‑ ‑

HER HONOUR:   I thought that was the point that the Court of Appeal was making.

MR DAVIS:   Yes, that in the end the ‑ ‑ ‑

HER HONOUR:   It cannot affect the correctness or otherwise of the final order as to costs.

MR DAVIS:   Against Mr Jorgensen, yes, that is so, your Honour.  Could I take your Honour then, please, to exhibit JGP2.

HER HONOUR:   Yes.

MR DAVIS:   If your Honour goes towards the back of that, your Honour will find pages 10, 11 and 12 of the transcript.

HER HONOUR:   Yes.

MR DAVIS:   Now, this is the passage that is omitted.  So what has occurred is that Mr Jorgensen has had the Court Reporting Bureau produce what was left out and if your Honour could possibly read from page 10, line 35 through to the end of page 12, line 20, that is the argument for the exchanges between the Chief Justice of Queensland and Mr Jorgensen and your Honour will see that it is nothing more than a re‑ventilation of Mr Jorgensen’s continued assertions to the ‑ ‑ ‑

HER HONOUR:   Of the right to be ‑ ‑ ‑

MR DAVIS:   Yes, act for the company.  It really has nothing at all to do with the costs order that was ultimately made, not against the company, but against Mr Jorgensen.  So, in our respectful submission, the draft notice of appeal does not show error let alone a special leave point.  At the end of the day this was a costs order, therefore a discretionary order.  It was fully reviewed and considered by the Chief Justice.  Mr Jorgensen then made an incompetent appeal.  He was given the opportunity to fix it.  He did not.  The Court of Appeal so held.  It is a Queensland statute which was in contention applied by the Queensland Court of Appeal.  There appears to be no error and there is certainly, in our respectful submission, no point of general principle.

That being the case, Mr Jorgensen’s application for special leave is just completely hopeless and, that being so, it can be shown to be completely devoid of merit and there would be no injustice if your Honour terminated it now.  They are our submissions, your Honour.

HER HONOUR:   Thank you.  Mr Jorgensen, anything in reply?

MR JORGENSEN:   Yes, your Honour.  Your Honour, if I was a fly on the wall listening to both parties’ argument, you would have to be extremely biased – not yourself, but maybe the fly on the wall – if hearing what both would have to say about the merits that one could consider on zero to 100 that ASIC has 100 per cent correct and I have got zero per cent, somewhere in between the zero and 100 has to be where the marker would sit if you just listen to both our discussions.

Having said that, I would like to pick up on my friend’s comment there that Justice de Jersey said it is only about cavilling with his decision regarding costs.  That is all it was.  If you go down to page 11, your Honour, 25:

C.J:     “Are you saying so you can deal with the question of costs of the winding‑up?  Is that what you are saying?”

This is in the context, your Honour, of quite a long hearing there where I could see his Honour was getting a bit impatient with myself, so I am saying he has already made up his mind about this is about costs so anything he is going to say afterwards, because he is only human, is going to be supporting his original rationale.  So just because his subsequent comments here are supporting what he previously said is hardly surprising but, with that in mind, it should not be taken that therefore that is gospel and that is, indeed, what appeals are about.

But anyway in 30, I say no, it is not about costs of the winding‑up.  It is so we could establish that the administrator, SVP, contrary to those letters – which the case was about, undertakings, et cetera – the deal we struck was that I was empowered to deal with this current ASIC issue if it flares up.  Then, your Honour, you can read what it says there, but namely the costs order again.  That is the end result.

So I think the fact that I said “No, are you talking about costs” and we know that section 253 specifically says only about costs, and once again, if it is 95 per cent about costs and 5 per cent about something else, then section 253 clearly does not apply in my view, your Honour, because only means 100 per cent. So the fact is I am saying no, it is not only about costs and as I have said earlier, it extended much further than that and that was to do with my power as the director to be able to stop the administrator from compromising the company’s right to costs where ASIC had cut a deal with the administrator behind my back and against the administrator’s undertakings with me that no, they would not cut any deal behind my back.

Now, my company, your Honour, had spent something like 200,000 in costs fighting ASIC and when they decided to put up the white flag and discontinue, then naturally we are entitled to expect to get some of those costs back.  Even going into the courtroom that day, Gary Hamilton, solicitor for the administrator, said “No, you can do your best.  We are not going to stand in your way.”  Yet, when I walked into the court, the counsel for ASIC just shot me down in flames and I had no standing whatsoever to argue on behalf of the company ‑ ‑ ‑

MR DAVIS:   Your Honour, I do object to this.  It is not a reply and now we are getting into evidence.

HER HONOUR:   Yes, you are proceeding beyond ‑ ‑ ‑

MR JORGENSEN:   I am sorry, your Honour.  Just trying to restrict it to my friend’s comments there, in short I am saying, your Honour, that passage of those spanning three pages, two incomplete pages, is critical to my claim to the Court of Appeal contrary to what my friend has said, that it is only about costs so it did not make any difference in the end.  As I said earlier, there was litigation that had to be started and money to be collected from some of the customers and I was powerless to do it which seems to be quite strange.  So there needed to be a decision from Justice de Jersey to give me an adjournment so we could get counsel to pursue my rights that I believe we had walking into the courtroom.

As I said earlier, for ASIC to ambush me with about 40 pages of submissions, which they previously had said they would not be doing, it reached that Kioa v West principle that if they are going to hang me on something well I am entitled to answer the material that they are using to hang me with.  So that was a total violation of that.  I was aware of that and that was why I argued so strongly with the Chief Justice.

HER HONOUR:   You should address yourself to matters that Mr Davis has raised.  You have a right of reply, not another address.

MR JORGENSEN:   Okay.  I will move on, your Honour.  He mentioned one of the issues before Justice de Jersey was a discontinuance and I got costs order against me for some reason.  Your Honour, that is not correct in that the ‑ ‑ ‑

HER HONOUR:   They are the orders the Chief Justice made.

MR JORGENSEN:   The matter, your Honour, is clear that – and this is why we needed to get an adjournment and that is that ASIC only discontinued against two of the respondents.  They did not discontinue against myself and my wife, two of the respondents, because we would not agree to walking away with each party bearing their own costs ‑ ‑ ‑

HER HONOUR:   This is a totally different issue.  The question is the costs order made on the leave to discontinue order made by Chief Justice de Jersey, not what orders were not made.  You are straying into the areas of irrelevance.  Perhaps if you could just confine yourself to answering the matters that Mr Davis has raised.

MR JORGENSEN:   With all my strains and shortcomings there, your Honour, as well as some perhaps more precise points, I mean it is clear that there were some serious issues there that are more than just costs and once again, today was not the venue to come to win ‑ ‑ ‑

HER HONOUR:   The matter before the Court of Appeal founding its order was the question of costs, was it not?

MR JORGENSEN:   Sorry, repeat that again, your Honour.

HER HONOUR:   The matter that the Court of Appeal was hearing was the question of whether there was ‑ ‑ ‑

MR JORGENSEN:   Ultimately was hearing, or the ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ to be leave to appeal in relation to the order for costs.

MR JORGENSEN:   Sorry, your Honour.  I am confused there.  The Court of Appeal was going to hear it in six weeks time and then ASIC made this interim application to strike out because it was incompetent.

HER HONOUR:   Yes.

MR JORGENSEN:   So when you refer to the Court of Appeal, I wonder if you could ‑ ‑ ‑

HER HONOUR:   I am referring to the nature of your application and the order it related to.  The order it related to was Chief Justice de Jersey’s order for the payment of costs by you to ASIC.  That was the matter that the Court of Appeal was concerned with.  The applications were then made to have the appeal dismissed as incompetent because they related only to the question of costs and because that was a matter within the discretion of the primary judge.

MR JORGENSEN:   But that was ASIC’s argument, your Honour, that it only related to costs and therefore 253 kicked in and I am saying absolutely as strongly as I can and that is that there is no way known that it dealt 100 per cent and my appeal to the court, there were about three paragraphs which just focused on the breach of natural justice and procedural fairness in the Chief Justice not allowing me to have a short adjournment to engage counsel.  Now, as I was very familiar with the High Court authorities on that and I was quite shocked that he would not give an unrepresented litigant the chance for even a week without ‑ ‑ ‑

HER HONOUR:   The question raised in the Court of Appeal’s judgment is what that had to do with the order for costs, which was the matter before it.  They are disconnected, to put it in direct language.

MR JORGENSEN:   But if I was in court now, your Honour, before the High Court dealing with the merits of the case which, in my respectful submission, we ought not get too deeply in today but we are, I would be arguing very strongly ‑ ‑ ‑

HER HONOUR:   I thought that was what you were actually arguing at the moment, Mr Jorgensen.

MR JORGENSEN:   Are we not saying – I am not sure that you agree with me, your Honour, but the High Court authorities on this – and it comes from Krakouer ‑ ‑ ‑

HER HONOUR:   I am aware of them, Mr Jorgensen.  We have been over this.

MR JORGENSEN:   Okay.

HER HONOUR:   I know that it is a question of there being no merits.

MR JORGENSEN:   Right, and they are saying it is not the appropriate forum to be ‑ ‑ ‑

HER HONOUR:   You do not need to repeat yourself in relation to that.  Do you have anything further you wish to add?

MR JORGENSEN:   Okay.  If I could go back to the Court of Appeal.  That was ASIC’s representation to the Court of Appeal and that was a Court of Appeal decision.  You are correct to say that.  That was their decision that the 253 and that is why I should have gone back to Justice de Jersey to get leave and my argument was no, 253 did not apply and therefore that is what I am appealing to the High Court for.  So I am not saying that the Court of Appeal did not agree with ASIC but that is what the High Court is there for.  It is for the High Court’s view on whether the material before the Court of Appeal could reasonably be such that 253 applied.  My whole argument, if I was before the High Court now arguing the merits, and I am in a small way today, is that it did not apply because it was not only to do with costs.  There were a lot of things that flowed from that stripping of my powers and not having it reinstated as it should have been.  That was why I repeated myself with Justice de Jersey there to – because as I said I was very familiar with my solid ground on getting that adjournment.

So I am saying here, your Honour, that the finding of the Court of Appeal is what I am taking exception to and I am allowed to.  It is my right.  So I am taking this to the High Court for the two Judges there to look at that to see if they agree with the Court of Appeal or myself.  I go back to what we have said before.  If it is totally devoid of merit ‑ ‑ ‑

HER HONOUR:   Yes, we have been there.  Is there anything different that you wish to put?

MR JORGENSEN:   Yes, there was, your Honour.  In every court case – excuse my ignorance, your Honour, but there has to be a rule that has been broken for a person to pay – to suffer or to pay the penalty of an adverse judgment and I am saying if we go back to that notice of appeal, draft notice of appeal, I think I am entitled to say to ASIC and perhaps yourself, your Honour, show me – not “Show me the money” – show me the section in the High Court Rules that says the draft notice of appeal must not be signed.  So it would be remiss of me, your Honour, not to ask the Court or the other side to produce that rule because if they cannot ‑ ‑ ‑

HER HONOUR:   Mr Davis has explained that.  He says that the draft notice of appeal may be distinguished from a notice of appeal because the notice of appeal under the Rules is signed a draft notice of appeal cannot be signed otherwise it purports to be a document it is not, that is a notice of appeal.  You cannot file a notice of appeal that is signed, without leave.

MR JORGENSEN:   I understand their argument – sorry, your Honour.

HER HONOUR:   Without leave, you need leave before you can file a signed notice of appeal.

MR JORGENSEN:   Right.  I know you are sympathetic as I said earlier towards the unrepresented litigant, or you know, how do you know, especially as I ran it by my solicitor and they did not even know.  So I am saying that – sorry, I am losing my train of thought here, just bear with me, your Honour.

HER HONOUR:   Your point that I quite understand is that you regard that as technical.

MR JORGENSEN:   That is what I was going to say.

HER HONOUR:   But I think that is a point that you have made a few times.

MR JORGENSEN:   But taking what you just said a moment ago, and that was it says it is a draft notice so therefore almost everybody should know that you do not sign it because otherwise it is considered to be a notice of appeal and I am saying, your Honour, okay, if you are a very skilled barrister or counsel and you have been down this road before you will know that for sure, but I would have thought the interpretation of the English language, the reason you put “Draft” on the documents when you put a stamp on them and the reason you put “Draft notice” on your appeal is because everybody knows it is not the final one.  If it was not a draft, then it would just have “Notice of appeal” so, in my respectful submission, your Honour, especially for an unrepresented litigant and put all the other factors together, the normal person, which I believe a lot of court philosophies deal with is the average person from the street, how would they interpret that?  Now, if it says “Draft notice of appeal” it does not matter if it is signed or not signed in my view, everybody knows that is not the notice of appeal.

So therefore I do not think the argument your Honour mentioned a moment ago, with all due respect, and certainly what ASIC have said, that because it has “Draft” it should not be signed.  I am saying that does not follow, in my view, and I should not be hung out to dry because of one person’s interpretation of that when clearly the average person from the street would see “Draft notice of appeal” so it is not going to go any further.

So in the absence of there being a rule that the Court can show me or ASIC can point to in the High Court Rules – and there are many, many rules as we all know, I have read a lot of them, maybe I missed something, but if they can show me there is a rule there which says do not sign it, even though I understand –

HER HONOUR:   Mr Jorgensen, you are going over – you are repeating ‑ ‑ ‑

MR JORGENSEN:   I have not said that before, your Honour.

HER HONOUR:   Yes, you have.

MR JORGENSEN:   The accepted practice ‑ ‑ ‑

HER HONOUR:   Yes, you have.  You have said it at least once before.

MR JORGENSEN:   But in the absence of not finding a rule, then just because it is the accepted practice of the High Court Registry, in my respectful submission to the Court that does not necessarily mean that is High Court law.  If there is in the rule book sure and it says 10.04.1, that is fine but if it is not there it seems to me it is a practice that has been – how would I know type of thing, but I would imagine it has crept in over a period of years, it has evolved and just become an accepted practice rather than be a law.

So in the absence again of not being a rule, I feel, your Honour, that it should not be struck out.  I do not know if I am breaking new ground in the High Court here by saying this, but it should not be struck out because it is not in the rule book.  It is accepted practice which is a far cry from being a rule which has been broken, not to mention the fact that what we said before, how would the average person know it has “Draft” on it.  What is the next point?

MR DAVIS:   Your Honour, I do not want to unduly restrict Mr Jorgensen ‑ ‑ ‑

HER HONOUR:   Neither do I, Mr Davis.

MR DAVIS:   Thank you, your Honour.

MR JORGENSEN:   Just the last point I will say, your Honour, is we all know the Court has the rules there – I think it is 41.10.4, that they have the discretion to grant leave to vary the date for filing.  The only reason they have that of course is that everyone knows mistakes can happen just like the Registry put the wrong month on the seal, but anyway mistakes do happen.  So the reason they have put that law there is so as not to be so harsh that it is totally inflexible if someone makes a technical error that the case is thrown out.

HER HONOUR:   All right.  I think your point about the Rules is sufficiently made.  We will not go there again.

MR JORGENSEN:   All right.  The very last one before I sit down is that your Honour mentioned before the fact there is at the High Court level you have the next filtering stage.  You have two highly skilled Judges to examine the merits and if they throw my case out because they have looked

at the merits, then I can accept that on the chin.  There are two Judges and the reason they have two, no doubt, is because one person’s view of the world could be different to the other.  So to minimise the chance of getting a judgment wrong they have two.  Now, with all due respect, your Honour, you are one Judge here and you yourself said at least you have two Judges to make the more important decision on the merits of the case where they are specifically looking at the merits.  I think to have your Honour, with all due respect, there put in a situation here where you have to make the tough call – I think it is tough – to strike out my appeal that has been going on and on like a bad nightmare, I would respectfully suggest that the law has allowed two Judges so they can make a more balanced decision on this and especially when we are considering we only need ‑ ‑ ‑

HER HONOUR:   Yes, I understand that point.  Thank you, Mr Jorgensen.

MR JORGENSEN:   Yes, that is all, your Honour.

HER HONOUR:   The applicant seeks an order for reinstatement of his application for special leave.  It was deemed abandoned on 14 April 2009 pursuant to rule 41.10.4 because of his failure to file his draft notice of appeal as required by rule 41.10.3 within 28 days after filing his application for special leave.

The order of the Court of Appeal of the Supreme Court of Queensland appealed from was one striking out the applicant’s notice of appeal as incompetent. The appeal was as to a question of costs which the court held were in the discretion of the primary judge and required that judge’s leave to appeal pursuant to section 253 of the Supreme Court Act.  The applicant was invited to take the course of making such an application, but declined to do so.

The respondent to this application does not suggest that the applicant’s delay has caused it any prejudice.  In any event, the applicant has provided an explanation for the delay.  The respondent, however, submits that the application for reinstatement should be refused for the reason that the applicant can have no measurable prospects of success on an application for special leave.

The applicant submits that his application was deemed abandoned by a technicality.  His solicitors attended to the filing of the draft notice of appeal on the last day for its filing, but it was rejected as non‑compliant because the draft notice was signed.  The applicant points out that there is no mention of a prohibition on signing in the Rules.  That the Registry had the power to reject the document cannot be doubted.  As the respondent points out, in the form in which it was presented, it was a notice of appeal without the necessary leave.  It therefore did not conform to the Court’s process and was contrary to it.

The result is that the application is deemed abandoned by operation of the Rules.  The applicant’s application for reinstatement brings the question of the merits of the application for special leave to the attention of the Court.  The point is well made by the respondent that if the applicant’s application for special leave has no merits no injustice could result if the application is not reinstated.

The respondent, ASIC, brought proceedings for winding up and injunctions against a company of which the applicant was the sole director.  The company subsequently entered into a deed of company arrangement.  The order for costs in question was made in favour of the respondent Commission against the applicant.  That order was made on its application for leave to discontinue the proceedings because there was no longer any utility in continuing them.

The grounds for special leave did not challenge the order for discontinuance.  They are confined to the order of the Court of Appeal, which prevented the question of the order for costs being ventilated.

The applicant, in his grounds for special leave, complains that the Court of Appeal should have itself granted leave and heard the appeal about the costs order.  He gives no basis for that save that a date had been allocated for the appeal.  The applicant would also argue that there was a denial of procedural fairness by the primary judge, Chief Justice de Jersey.  This refers to a refusal to adjourn the Commission’s application which arose in connection with the applicant’s assertion that he had a right to represent the company on the application for discontinuance.  The Court of Appeal held that even if some such error had occurred on the way towards the ultimate decision as to costs that did not provide a basis for setting that decision aside.  The fact that some transcript of the hearing before the primary judge where the applicant reasserted his rights to represent the company was not available before the Court of Appeal does not alter that conclusion.

No error in the decision of the Court of Appeal is identified in the grounds for special leave.  It follows that the application for that leave has no prospects of success.  The reinstatement of the application is not warranted.  The application is refused.

MR DAVIS:   I apply for costs, your Honour.

HER HONOUR:   I do not think you can argue against costs, Mr Jorgensen.  As you know, it follows the event.

MR JORGENSEN:   Well, Justice de Jersey said otherwise when they discontinued and certainly made me personally liable, not the company.  So I am not sure that is consistent with your Honour’s version there, but ASIC being the model litigant, your Honour, has been able to create total destruction of my companies and personal life and ‑ ‑ ‑

HER HONOUR:   We are just talking about the question of costs today. 

MR JORGENSEN:   Yes, your Honour.

HER HONOUR:   You brought an application.  You were not successful.  As you would know from your time with litigation thus far the usual order is that the unsuccessful litigant pays the other party’s costs.  Is there anything you can say which can be weighed against that?

MR JORGENSEN:   I think so, your Honour.  That is two things:  firstly, ASIC discontinued and it is an automatic rule that the discontinuing party pays the costs.

HER HONOUR:   And the Court of Appeal pointed out that you have misunderstood that they were not discontinuing, they were seeking leave to discontinue under the second part of that rule so it has already been found against you.  That is not a ground.

MR JORGENSEN:   Well, there were two sections that we will not go into, your Honour, but I am saying ASIC – the overriding thing is I am saying is ASIC have put up the white flag after causing so much grief and now they are a government body, they are supposed to be a model litigant, they were fortunate and they did a deal with the administrator and good luck to them behind my back type of thing and now they have been able to scrape through again on a fineness of technicalities ‑ ‑ ‑

HER HONOUR:   Mr Jorgensen, I have given you an opportunity to make submissions as to costs.  You do not appear to have any basis for defending them.

MR JORGENSEN:   Other than ASIC being the model litigant, your Honour, and ought to bear ‑ ‑ ‑

HER HONOUR:   They have defended proceedings here today.  They were brought here.  They did not bring them.

MR JORGENSEN:   In the big picture, your Honour, flowing from and I would respectfully ask that each party bear their own costs given the severity of Justice de Jersey’s costs order, your Honour.

HER HONOUR:   Thank you, Mr Jorgensen.  I order that the applicant pay the respondent’s costs of the application.  Thank you.

AT 11.38 AM THE MATTER WAS CONCLUDED