Kullack v ANZ Banking Group Limited

[1988] HCATrans 289

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B31 of 1988

B e t w e e n -

ESTHER KUCLACK

Applicant

and

AUSTRALIA AND NEW ZEALAND

BANKING GROUP LIMITED

First Respondent

and

PAUL HARWOOD

Second Respondent

Application for special leave

to appeal

Kullack

WILSON J

DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 NOVEMBER 1988, AT 2.49 PM

Copyright in the High Court of Australia

C2T68/l/AC 1 25/11/88

MRS E. KULLACK: I am the applicant in an action between the

Australia arrlNew Zealand Bank, Paul Harwood and myself, and

I am representing myself.

MR J.D.M. MUIR, QC:  May it please the Court, I appear with

my learned friend, MR P.D. McMURDO, for the

respondents. (instructed by Morris Fletcher & Cross)

WILSON J:  Are you unfamiliar with the rule, Mrs Kullack,

that requires applications to be made by counsel?

MRS KULLACK:  I was notified, Your Honour, by the Registrar

of Order 69 rule 11. However, I would like to

put the ground why this order should be put aside.

WILSON J:  The Court will hear you, Mrs Kullack, briefly.

You must realize though that an application for

special leave to appeal does not offer the opportunity

to the Court to go into the detail of the case.

It is only a case that has some special feature

or question of general importance, or something

that makes it appropriate for the grant of special

leave. Do you understand that?

MRS KULLACK:  I understand that, Your Honour.

WILSON J: Well, we will hear you, briefly, on the reasons

why you think the Court should grant special leave.

MRS KULLACK:  We have a case that is an unusual case. It

is in relation to offshore loan.	I was one of
the first applicants to go to court.	I have tried

to do my own litigation since June 1986 and for

one· and a half years I have tried to go through

those litigation. I had a barrister to represent

me for the trial and the barrister had only one

and a half day , the respondent, Your Honour, had

one and a half years of proper representation.

(Continued on page 3)

C2T68/2/AC	2	25/11/88
Kullack

MRS KULLACK (continuing):  I think because the case is

unusual, because it does involve a financial

position, that was cut. From the start I was

put in a bankruptcy situation the day that

loan was approved. Consequently, I was facing

an institution that was powerful enough to stop

me, to look at my human rights, at justice, because

simply I did not have the resources to have

representation.

It is, I suppose, the first time that an

off shore loan person will be put in a bankruptcy

situation without being allowed to seek justice.

I think that my case should be looked at with

different circumstances as to the Australian

dollar bein~ floated which, I think, in the world

of a QC, said that economically,because of that situation,we can compare it to World War I. It

is unusual situation and people in my financial

position should never arrive to a position of

bankruptcy.

I also did my best in OctobeL when I saw that

I could not afford the services of a barrister, to

contact the Registrar to the High Court.	I put
my views to him.	He then, on 7 November, wrote

to the respondent and did let them know of the

situatio~ so they were aware of the situation

which existed since 1986. The reason, I think,

that I am now in the High Court is simply for

two major things. First, that offshore loans were

not quite clearly understood or dealt with before and,

that not having the representation, the case has

extended itself to grounds that were not relevant

to a conn:nercial transaction.

If. however, I can give you precisely, clearly and

take an ordered approach relevant to this off shore

loan and particularly to my case, I think it would

be very clearly understood by Your Honours the

reason why this case came as far as the High Court. (Continued on page 4)

C2T69/l/SH	3	25/11/88
Kullack

MRS KULLACK (continuing):  We have the approach of a judge - of

a judgment, made by His Honour Judge Pincus - has

taken an approach which is not, respectfully, not the

right approach for a commercial transaction. The

judgment was passed on a question of credibility;

credibility in a case of offshore loan, I think,

should be avoided and common sense, the common sense

and common rule that should apply to such a loan

should first be looked at and, if we have looked

at that common rule and common sense, looking at

the figures by dollars and cents, which dollar and

cents cannot, in some way, lie as	a question of
credibility.	So if we would have seen that case

based on the fundamental first rule that should

apply for an offshore loan, I would have won the
case and I would like Your Honour to listen to the

common sense and the fundamental rule that has not

been followed in my case.

Instead, the case was extended on many different

grounds and, because the of£shore loans are not a

familiar transaction as yet with the Court,

His Honour took an approach which is foreign to a commercial transaction and that is, Your Honour, the

question of credibility. Now, if I may say something

about this question of credibility. First of all, one

has to look at credibility: if a person have a

socio-economic background; if the language or the

tone or the manner of that person is not foreign to

His Honour,- I may have given the impression that

credibility was not in my favour, maybe because I

was a woman; maybe because of my accent; maybe

because of my manners which, in this case, had

emotionally, maybe, put me in a position where I

should have restrained myself :.and explained logically,
slowly, the case.

I simply was naturally too upset with what has happened and what has happened is not only that my

human right was taken from me, is that my character

was completely changed - is that the credibility

itself was based simply on an application of eight

pages being sent to me. This is a very difficult

question; how can anybody and a family be destroyed

completely and everything lost because somebody think

that this application was sent to you.

(Continued on page 5)

C2T70/l/VH	4	25/11/88
Kullack

MRS KULLACK (continuing):  So we see that credibility

first has to be in the right proportion, that we

are looking at the credibility with the person

that has elegance, the knowledge over court,

and does not have that apprehension about the

whole thing, and secondly is that the credibility

question will have better been assessed if we have
started by the fundamental rules that apply to a

transaction like this. But since I did not have any representation and the court, as I said, was

not aware of this type of transaction, the

credibility was put forward instead of looking at

the normal type of transaction and how this

transaction should have been followed.

If I may just say - and this is I have to put

it by figures so Your Honour can understand the case -

I had an income, a monthly	uncommitted income,
of $251 a month.	It is approximately $3000 a year
of uncommitted income.	I went to the :aank for

$145,000. I was given $300,000. The senior

lending officer of the ANZ Bank will say that the

normal rule for this $300,000 to be given to a

borrower we must have a criteria and the criteria

is that the domestic interest should apply to an

offshore loan. If a domestic interest did apply

to that offshore loan we quickly will arrive that

$300,000 you must have an uncommitted income of

$45,000 a year.

My uncommitted income was $3000. That is,

Your Honour, 15 per cent less than the criteria

and the fundamental rule imposed on such a

transaction.	Unless we start from this approach,
overlooking this loan, any other	approach as
credibility should be put as secondary.	Now, the

second point - and I had this $3000 for a whole year

while I was building. Now, the application which

the manager put forward in my case is that the

projected income that I will have after the building

is finished is approximately $21,000. (Continued on page 6)

C2T71/l/HS	5	25/11/88
Kullack

MRS KULLACK:  One and a half years already elapsed before

I could get to an income producing and if we look that the income producing is $21,000, it is not

logical,: have no common sense at all to say that

this person should pay $45,000 or $52,000 as later

on they ask me to pay. They knew how much

uncommitted income I had and they knew in their

application what was the projected income that

I will have but this shows the fallacious thinking

of the bank manager from the start of doing that

application.

Naturally, he must have a reason for doing

such an application and the unfortunate reason

is that I had other freehold assets. We know,

Your Honour, that why is this rule sustained by

the bank? The bank does not want to look at such

a rule but they are obliged to look at such a rule

and they are obliged to follow it. It is written

in their administrative executive rules sent to all the

officers of the bank that this sort of interest

that is based on normal lending should apply to the amount of principal that you are borrowing.

Now, why is it such a strict rule put in those

books? Simply for this, Your Honour: that we

have a case where the dollar, like some experts

will tell us, when there is a case, a political

case or say a oil-petrol case, the US dollar, for
example, with the Swiss francs, devalued in four

hours more than in the last two decades. It is

a commodity that change; it is a commodity that

have to be monitored 24 hours a day. To give a
loan to somebody for three years and not to monitor,

not once, that loan, is havin~ the bank putting

two hats. One hat on them doing the dealing and

the other hat is to put me in an agreement that

lock me for six months. It is incomprehensible

and impossible on my part to do my project, which

the bank say it is excellent in all face, to give

them everything I have and every asset that I

possessed with my family and to be locked for a

six-month period.

(Continued on page 7)

C2T72/l/AC	6	25/11/88
Kullack

MRS KULLACK (continuing): The order, I think, Your Honour,

misjudgment that was not properly seen by the trial

judge or by the Full Court of Appeal is that the

judgment was taken on the wrong timing.	I was judged
on a time that it was out of sequence.	I was told

that in 1986 I could have brought the loan on;hore.

That in 1986 I could do this and that. Your Honour, there was not one single evidence that shows that

the risk was being communicated to me. There is not

one single evidence to show that the Bank has

advised me to protect myself. So in 1986, whatever,

Your Honou~ they told me, I was in a position that

I could not bring the loan orshore because it would

have been not to pay any more $45,000 which I could
not do from the first day I took that loan or a year

later. But I was in a position where if I had

confronted the- lknk they will have brought the loan

onshore. which then we are talking about $60,000

and $70,000 to be paid.

My situation was simply to try to have the

best communication with the Bank and to leave that

loan as they said, · offshore. Now in this case, also,

because I was a woman there was a lot of prejudice and

not having the experience of the court I was foolish

enough to run after a red herring put to me by the
Queen Counsel instead of following simply the logical

common sense and stick to it - I am not use to such
a proceeding. I have hardly been in school more than

high school and it is a question of me trying to look

at my common sense and not be distracted. Unfortunately,

because of experience of? court, of a Queens Counsel, tnese

red herring were thrown around and everybody was running

after them.

(Continued on page 9)

C2T73/l/SR	7	25/11/88
Kullack

MRS KULLACK (continuing):  I was in a way, because I

have logic and conunon sense, but I did not

have the technique of presenting the case with
words which, Your Honour, I believe that is

just like trying to fight somebody who had a

gun in his hand. They had a lot of words and

they have said a lot of things and I could not

fight myself and fend my way out, although

I know I have the:logic and the common sense

in this case.

I believe that what has happened to me,

that there is a lot of people today in gaol

because of that; because of not having the

technique, the words necessary to defend

themselves and common sense which should prevail will completely be overpowered by something that

is false, incorrect and, Your Honour, in this

case, fraudulent.

I know I have put criminal charges against

this officer of the Bank and the Acting Commissioner
of Police and Mr Clauson will look at the case.

I know that my application of 50 pages, which I did spend many months to do it, I have answered

methodoically, precisely, to each point of the

judgment of His Honour.

This application, Your Honour, because the

approach started from credibility, m~ybe had

a tendency to be very lengthy and very - is

not complicated but it is like going on a

wrong track and making a 360 degree to come to

logic. So, my application was not read by

the Full Court of Appeal. The evidence was

not looked properly at by the Full Court of Appeal,

and this is because of the approach that His Honour

Judge Pincus has taken from the start.

If the case .will have started from the

logical ground and the criteria of an offshore

loan: why_ does a person need to have an offshore

loan? Let us look at the figure? If we had started

that way and we have followed what the senior

lending officer himself stated during the trial,

but it has been overlooked.

.Credibility in this matter should have come

only as secondary and we should start and have a

different approach for this case.

C2T74/l/JM	8	25/11/88
Kullack

MRS KULLACK (continuing): The thing, also, is that the

evidence, the transcript, if we look at the

transcript, it is an open book of contradiction

from the second respondent. It is contradiction

after contradiction. I have, and I would like,

when I have the possibility to go to the High Court,

to put each of these pages with the other pages

of contradiction. I put that in my submission

but it is a very length, as I said, document to

go through but the contradictions are extraordinary uMrs Kullack, you put on your further amended
and sometime, foe .examp 1 e, I explained to the

statement of claim that you only signed page 8 of the agreement; l.ou didn't put that you also initialled page 7. 1

I do not understand the question. And then

I say, "But why is this such a question?" Then, when I went through it, you will see that there

was sinister idea behind that question. That

question was that I went to Morris, Fletcher and

Cross, that I had a look, that I saw that I did not initial page 7 and somehow I forgot all about

it.

WILSON J: Mrs Kullack, you are getting into very great detail

now. We have listened and, of course, we had read

all the papers that had been filed and we have

listened to what you have had to say as to why

special leave should be granted, is there anything

fresh that you wish to say?

MRS KULLACK:  Yes, I would like to say that credibility is

something that, in an offshore loan, should be

only secondary to the logic and common sense of

the whole of an application on such a matter.

And I feel, also, that because I am going to

represent myself in the High Court and there is

enough material in my submission - I know exactly

what has happened during the trial - I feel that

the application should go to the High Court or

Your Honour coul~ do that - a postponement until I

have a barrister. 3ut, in any case, I think it is

an important case on the question of credibility
and on a new type of transaction which the
respondent is not worried about it any more since

they have settled with my guarantor.

(Continuing on page 10)

C2T7 5 /1 /ND	9	25/11/88
Kullack

MRS KUI.J.ACK (continuing): There is no urgency on their part. What

we are trying to do now is to see that credibility
has to be looked at in a different light, especially
when somebody is from a different background, and especially when the whole case case was judged on an erroneous and fallacious thinking. Thank you.

WILSON J: Yes, thank you, Mrs Kullack. Mr Muir, the Court

wants to ask you at this point simply whether or not your client would consent to an adjournment.

MR MUIR:	My instructions are to oppose an adjournment,
Your Honours.

WILSON J: Well, we do not wish to hear you any further.

MR MUIR:	Thank you, Your Honour.
WILSON J:	The Court believes that Mrs Kullack has said

everything that could be said in support of the
application for special leave and it is not

prepared, in the circumstances, to grant the

adjournment which, at the conclusion of her detailed

address, she mentioned.

The Full Court of the Federal Court showed a

concern and sensitivity for the plight of Mrs Kullack

but, nevertheless, concluded after a detailed

examination of the evidence in the case that she

could not succeed. The case raises no question of general importance and the decision depends purely

upon its own facts. No ground, therefore, has been

shown that would warrant the grant of special leave

to appeal. Special leave, therefore, must be refused.

MR MUIR:	I ask for costs, if Your Honours please.
WILSON J:	I think I should hear Mrs Kullack on the question

of costs. Mrs Kullack, would you come to the microphone? The rule is that the costs in a

case like this should be awarded to the respondent.

ls there anything you can say as to why such an

order should not be made?

(Continuing on page 11)

C2T76/l/SH 10 KULLOCK 25/11/88

Kullack

MRS KULLACK:  I think, Your Honour, that is a real great

injustice, that I have all the intention to

continue with this case, even for the next 20 years,

that whatever Your Honour would like to do

Your Honour can do it. I am talking about my

human right, I am talking about injustice,

I am talking about inefficiency, I am talking about

negligence that has been highlighted in this case.

WILSON J:  Yes, thank you, Mrs Kullack. Special leave

will be refused with costs.

AT 3.22 PM THE MATTER WAS ADJOURNED SINE DIE

C2T77/l/HS	11	25/11/88
Kullack