Loevski v Australian Securities and Investments Commission & Anor

[2003] HCATrans 581

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M73 of 2002

B e t w e e n -

YAKOV LOEVSKI

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

First Respondent

STEVEN SHERMAN

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 12.10 PM

Copyright in the High Court of Australia

MR Y. LOEVSKI appeared in person.

MARINA GRECO, affirmed as interpreter.

MS S.M. CRENNAN, QC:   If the Court pleases, I appear with my learned friend, MR M.J. GALVIN, on behalf of the first respondent.  (instructed by Australian Securities and Investments Commission)

MR E.J.C HEEREY:   May it please the Court, I appear for the second respondent.  (instructed by Baker & McKenzie)

HAYNE J:   Now, Mr Loevski, the Court has read the papers that you have submitted.  You have 20 minutes in which to make such further argument as you wish to make.  Perhaps if you would proceed.

MR LOEVSKI (through interpreter):   The matter of this case is such that the liquidator of the company called TGNS, which is Mr S. Sherman, was using the deceit and misleading conduct and also with support on behalf of Mark Drysdale and C. Fintan, who are seniors of ASIC, of Victoria regional office ‑ ‑ ‑

MR LOEVSKI:   Appropriated approximately $695,000, our commission and compensations ‑ ‑ ‑

MR LOEVSKI (through interpreter):   That belonged to 57 sales representatives and also workers of the company since 1999.  First of all, I wish to apologise in advance for my English, for the grammatical mistakes in the documents, and I would like to ask you to clarify during the proceeding of the submissions if there is something that is unclear, using the help of our interpreter, Marina.

HAYNE J:   Yes.

MR LOEVSKI (through interpreter):   Unfortunately, three of my requests about the pro bono assistance scheme were not even considered by the judges of the Federal Court district Victoria.

MR LOEVSKI:   Justice Marshall, Chief Justice Black, three judges ‑ Carr, Moore and North – five judges breached their Order 80 rule 1 of Federal Court Rules.

MR LOEVSKI (through interpreter):   I would like to ask that you reflect this in your decision.  Considering those reasons, I had to go every day, virtually every day, and spend four, five hours learning Australian legislations and rules and that is considering my weak knowledge of English and my age.  Please believe me that that was difficult.  Lucky my experience of working in the Russian court, where I participated in tens of processes and that also includes in itself directional hearings.  Because of that I am aware of the functions of the judge in the preparation of process for the directional hearing, and that is Order 53 rules 14 and 15 and I would like you to look at these rules, please.

HAYNE J:   Mr Loevski, you are asking for leave to appeal from the orders made on 7 May last year.

MR LOEVSKI:   Yes, you are right.

HAYNE J:   This is your chance to tell us why those orders are wrong.  Yes, go on.

MR LOEVSKI (through interpreter):   I understood you and I wish to state that the order that was taken on 7 May 2002 in the Federal Court was incorrectly taken basing on the decision of Justice Marshall and I would like to take the events chronologically at the moment.

HAYNE J:   Yes, go on.

MR LOEVSKI:   I shall first discuss the order of direction hearing on 6 December 2001 made by Justice Marshall.  On 19 November 2001 I filed in Federal Court the notice of appeal, form 55A, Order 53 rule 2.  It is AB No 10.  I request by this notice to invite the respondent, the liquidator of TGNS, Sherman, in accordance with section 44(1) AAT Act of 1975.

On 29 November 2001 Mrs Thomas, solicitor of Sherman, filed the affidavit – it is application book page 17 – where he fixed the fact that liquidator Sherman was not a party to the proceeding or decision of AAT.  Please see paragraph 6 of AB18.  On the same day, 29 November, Sherman, his solicitors filed the notice of motion, form 27, Order 19 rule 2 AB – you understand what is AB?

HAYNE J:   Yes.

MR LOEVSKI:  AB15 where he falsed up his status as respondent already.  You understand?

HAYNE J:   Yes.

MR LOEVSKI:   Yes. This false they have to determine by section 136.1(1) of Criminal Code Act 1995.

HAYNE J:   Just a moment, let the interpreter interpret.

MR LOEVSKI (through interpreter):   I must confess that in the beginning of the directional hearing of 6 December I thought that Justice Marshall has forgotten that he is conducting direction hearing as was defined on 9 November 2001.  It was not clear whether it was hearing where he was accusing me and my colleagues in the fact that I, according to section 44(1) of AAT Act 1975, am requesting to invite Mr Sherman as a respondent.  Later, I understood that he took the side of the respondent, Mr Sherman, with the purpose to free him or to liberate him from the punishment.  I must point out that my notice of appeal with mention of Order 53 must be considered in correspondence with the Order 53 rules 14 and 15.  These are particularly important rules of the Order.

HAYNE J:   Yes.

MR LOEVSKI (through interpreter):   But I will get back to that a little bit later.

MR LOEVSKI:   Justice Marshall on direction hearing on 6 December by AB27 word for word repeated two request of Sherman notice of motion, AB15.  Paragraph 1:

The notice of appeal filed by the applicant on 9 November 2001 be struck out as against the 2nd respondent.

2.  The Applicant pay the 2nd Respondent’s costs of the application.

Order 53 rules 14 and 15 clearly determine the role and the fields of direction hearing and enumerates duties of judge in this part of proceedings. 

MR LOEVSKI (through interpreter):   I would like you to consider these two rules very carefully, that is rules 14 and 15, because these are the key rules.  In relation to our matter, Justice Marshall could have ‑ ‑ ‑

MR LOEVSKI:   Given the opportunity to Sherman to fill the form 3, Order 41 rule 1(3), what is name where there is no respondent because in affidavit they told that they was not a party to the proceeding and in accordance with this affidavit, paragraph 6 AB17 and to refer this document to Chief Justice Black because rule 15 does not give the power to judge during direction hearing to consider any notice of appeal, notice of motion, et cetera. So Justice Marshall completely breached Order 53 rule 15 of the Federal Court Rules and has to be responsible for it.

On the same time, Justice Marshall did not take any action for the preparation of this matter to the hearing by a Full Court hearing.  It is Order 53 rule 15 subrules (a), (b), (c), (d), et cetera.  Sherman became respondent or party in this proceeding since 13 February 2002, AB42, in two months after direction hearing of 6 December in which he admitted himself later after this court hearing by Chief Justice Black.

MR LOEVSKI (through interpreter):   Respondent Sherman not once since November 2001 objected against our accusations that he appropriated the commission and the compensation.  The only argument was that they were not a party to these court proceedings, AB17, but this is not true.

MR LOEVSKI:   Sherman was a potential respondent since 15 August 2000 – please see AB1, AB5, AB10 – and his status could be determined by Full Court after the considerations of formal documents.  Claim of Yakov Loevski to ASIC Victoria office of 15 August.  Our application to AAT of 14 August 2001, AB1 to fifth page – you can see now if you want – and my notice of appeal to Federal Court, form 55A, Order 53 rule 12, of 9 November, AB10. 

Now, I shall discuss the order of Full Court sitting.  .....Chief Justice Black on....., AB42, .....referred to District Registrar for mediation and District Registrar, Mr Wood, wrote to me and to respondents, including Mr Sherman, his solicitors, to attend this mediation.  Do you understand me?

HAYNE J:   Yes, I do.

MR LOEVSKI (through interpreter):   By then I have learned some laws and I understood that this was normal blackmail.

HAYNE J:   Now, Mr Loevski, your time has expired and you have had your 20 minutes.

MR LOEVSKI:   I ask you for five minutes, because I spent time for translation.

HAYNE J:   You may have a further three minutes, Mr Loevski.

MR LOEVSKI:   Okay. 

HAYNE J:   Yes.

MR LOEVSKI:   Mr Black decided for mediation and I come to mediation and I did not reach the result.

MR LOEVSKI (through interpreter):   We did not resolve anything.

HAYNE J:   Yes.

MR LOEVSKI (through interpreter):   Because I could not betray the interests of those people that I represent who trusted me, and all those 57 sales representatives of the company who put their faith into it.  They were deceived by Sherman and they did not receive neither commission nor compensation from Sherman. 

I think that the decision of Mr Marshall’s, because it was found invalid, did not give a right for the Full Court proceedings because his orders were found invalid.  But the court did use my documents with the falsified dates for my notices of appeal and they went ahead looking at that and considering the matter despite having the decision of Chief Justice Black and also outline of the matter, I believe, and I told them that they had to consider all the breaches and all the violations done by Sherman at the hearing ‑ ‑ ‑

MR LOEVSKI:   And his participators, Drysdale and Fintan from ASIC Victoria.

HAYNE J:   Your further time has now expired, Mr Loevski.  The Court has read and considered your papers.  Thank you very much, Mr Loevski.  We need not trouble you, Ms Crennan, nor Mr Heerey.

The applicant seeks special leave to appeal from orders of the Full Court of the Federal Court of Australia which, among other things, refused him leave to appeal against orders made by a single judge of that court.  The orders which he had sought to challenge were in substance orders dismissing from an appeal he had instituted under the Administrative Appeal Tribunal Act 1975 (Cth) one of two named respondents and transferring the balance of the proceeding to the Federal Magistrates Court.

The Full Court of the Federal Court held that the decision to dismiss the proceedings against the second respondent was not attended by doubt and that nothing suggested that the primary judge ‑ ‑ ‑

THE INTERPRETER:   When you say “was not attended by doubt”, what does that mean?

HAYNE J:   Was not wrong – was not shown to be wrong.

And that nothing suggested that the primary judge had erred in any way in exercising his discretion to order transfer of the proceedings.  The decision of the Full Court of the Federal Court is plainly right.  Special leave is therefore refused with costs.

Yes, thank you.

AT 12.40 PM THE MATTER WAS CONCLUDED