Maher, Ex parte - Re Commonwealth Bank of Australia & Ors

[2004] HCATrans 216

[2004] HCATrans 216

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Melbourne  No M122 of 2004

In the matter of -

An application for Writs of Certiorari and Prohibition against THE HONOURABLE JUSTICE FINKELSTEIN

First Respondent

THE SHERIFF OF THE STATE OF VICTORIA

Second Respondent

THE COMMONWEALTH BANK OF AUSTRALIA

Third Respondent

Ex parte –

DENNIS MAHER

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 3.30 PM

(Continued from 16/6/04)

Copyright in the High Court of Australia

__________________

MR D. MAHER appeared in person.

MR R.D. SHEPHERD:   If the Court pleases, I appear on behalf of the third respondent.  (instructed by Ryrie Bridges)

HIS HONOUR:   I am informed by the Registrar that the first respondent, Justice Finkelstein, will abide by any order the Court may make save as to costs.  There is no appearance, as I understand it, of the second respondent, the Sheriff.

Now, as I have had the parties informed, I hold a modest shareholding in Commonwealth Bank of Australia.  I am not conscious of any reason why my decision of this case might have any bearing upon the value of the shares which I hold.  That being so, subject to anything that may be said to the contrary, I see no reason not to continue with the matter.  Yes, Mr Maher.

MR MAHER:   Well, I did raise it, your Honour, the question whether it would be a conflict, also to the fact that I raised the matter of having an outside party to speak on my behalf relevant to the constitutional part.

HIS HONOUR:   Yes.  Is that person in Court with you, Mr Maher?

MR MAHER:   No.  I had asked that this been done by telephone.

HIS HONOUR:   I will not conduct a hearing by telephone, Mr Maher.

MR MAHER:   Thank you very much, your Honour.  It just places me at a further disadvantage, but nevertheless.  I could just raise one question.  When you say you have got a modest holding.  Do you call that a moderate holding, or just a modest holding?

HIS HONOUR:   Mr Maher, the amount of my holding is a matter for me.  I can tell you that it is valued at less than $100,000 – indeed, by a margin less than $100,000.  I cannot at the moment see any respect in which the disposition of this litigation would affect the value of those shares a jot.

MR MAHER:   Then I accept your Honour’s assurance on that.

HIS HONOUR:   Yes.  Question of assurance, Mr Maher, I told you the fact.  Yes, let us move on.

MR MAHER:   All right.  Did you want me to commence then, your Honour?

HIS HONOUR:   Yes.

MR MAHER:   All right.  If I could just read partially from these and add to as I go along so that I could explain it more clearly to you.  As you are aware, I am a litigant in person and without the assistance of a third party I will do the best I can.  I will put forward to you what I consider the important facts of this case first and then my submissions to you as to why you should grant the orders that I seek, or that have been filed.  Does your Honour have my affidavit in front of you?

HIS HONOUR:   Yes, I do.  I have read that.

MR MAHER:   And the exhibits there?

HIS HONOUR:   Yes.

MR MAHER:   All right then.  I have the lease on the property, and that is exhibited to one of the exhibits in front of you from Mr Malvyn Taylor.  I am a tenant under this lease.  The rent relevant to the lease was paid in a lump sum and in accordance with the laws of Victoria.  That is acceptable.  I have not got the exact quotation or citation in front of me, but there is one there which I can bring to your Honour’s attention at a later time.  I was living in the premises and I used the premises – well, that relates to the contents of the affidavit in front of you.

The lease and my conduct pursuant to that lease are evidence of my rights as a tenant and of my tenancy.  This particular lease was signed prior to Mr Taylor, the registered proprietor, from entering in a mortgage with the Bank.  That puts my rights in front of the Bank’s, and these rights should be accounted for.  I attended at the Bank – to the office of the granted registered proprietor of the loan.  He was made aware that there was a lease there.  Mr Taylor, who is the registered proprietor – you have his lease there, his affidavit.  There have been two affidavits.  I have only submitted one because it relates just to the other and I did not want to have too much paperwork for your Honour.

So they were therefore on notice prior to them lending him the funds.  The Commonwealth Bank have attempted over the time to negate the effects of this lease.  It cannot be done.  The lease is signed, it is executed, money has been paid as a consideration and the lease is in effect.  The Bank entered upon the property as trespassers, on four different occasions as to what I consider contempt and disregard of my rights.  In the trespass action the Bank threw out possessions from the premises.  They included many legal documents that were incredibly important to me, and in other proceedings – this proceeding and others.  The police were called to stop the Bank.  At that very time the Bank should have been placed on notice that I was a tenant, apart from correspondence they had had previously.

I have suffered loss as a result of the damage and the lost documents, and a loss that may increase over time.  The Bank had employed the contractor to empty the house, “Take it to the tip”, and they were his words and that is what was told to the police.  This is in the notes of the police as well.  I then took action against the Bank, and they cross-claimed against me – this again is in my affidavit – some two years after the action that I had taken.  Through the ‑ ‑ ‑

HIS HONOUR:   Now, it is the order on that cross-claim which you say is made without jurisdiction?

MR MAHER:   I do.  I will get to that, your Honour.

HIS HONOUR:   Well, that is the immediate point of the proceedings you have brought in this Court.

MR MAHER:   I am just trying to give you a brief outline as to why I am here.

HIS HONOUR:   I have read the papers, Mr Maher.  I understand some of the background.  The immediate point of this application, as I understand it, is you say that Justice Finkelstein’s order was made without jurisdiction.

MR MAHER:   Yes, I say that ‑ ‑ ‑

HIS HONOUR:   Why is that arguably so?

MR MAHER:   ‑ ‑ ‑ the Bank’s cross-claim does not – constitutionally, the Bank’s claim does not arise under a federal Act.  The jurisdiction to determine the claim of the Bank did not arise under the cross‑vesting legislation, as no claim was initiated in the other courts of this State.  The CBA claim relates to the Transfer of Land Act (Vic), and that is a State court and not a federal court. What I am getting back to the cross‑claim, that should have been transferred from the Federal Court to a State court for the lack or want of jurisdiction in the Federal Court.

His Honour erred in finding the Bank’s claim, not for the want of jurisdiction but against the weight of evidence.  That decision was based on the unsworn statement: 

the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a “matter” for constitutional purposes.

The CBA’s claim is not a federal matter.  Abebe v The Commonwealth states that:

Nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy. Nor does anything in s 77 or Ch III of the Constitution require a federal court dealing with a legal controversy to have authority to deal with every legal ground that a party wishes to put forward. It is true that a “matter” is concerned with the rights, duties and liabilities of particular parties in concrete situations and that, when a “matter” exists, it cannot be identified without some law or state of affairs described in s 75 or s 76 –

which the CBA’s claim does not fall in. It is beyond the argument that the Constitution authorises the Parliament to invest State courts with jurisdiction to determine only part of an act of controversy between parties. This is what should have happened in this case. The Bank’s cross-claim should have been transferred to the State Supreme Court, Victoria’s State court.

Chapter III of the Constitution contains and…..the limitation of the original jurisdiction that may be conferred on a federal court. Chapter III is only concerned with the judicial power of the Commonwealth, and that is what is here in question, is a State judicial power. The Bank’s claim is a State claim. Dixon, McTiernan and Kitto pointed out in Cockle v Isaksen (1957) 99 CLR 155 – in pages 162 and 163 stated:

the jurisdiction which a federal court so created may exercise cannot come from s. 71 alone.  It must be conferred and defined by the exercise of further legislative power.

The…..which the Bank’s claim an estate falls within the jurisdiction of a State court. There is nothing in Chapter III of the Constitution even to suggest that the States might, with or without the concurrence of the Commonwealth, invest federal courts with State jurisdiction. The relief claimed by the Bank is different to the relief claimed by me and theirs should have been heard separately.

Section 71 is concerned with the judicial power of the Commonwealth and as the use of the definite article or what can or cannot be decided indicates the whole of the judicial power of the Commonwealth.  It says nothing of and is obviously not concerned with State judicial power and, therefore, his Honour acted ultra vires.  The order made was wholly outside the jurisdiction of the Federal Court and should be quashed, and the orders sought by me should be granted.  I do not want to go into the cross‑vesting.  I am quite happy to answer back on that at a later time.

HIS HONOUR:   There is no question of cross-vesting I think.  The argument against you, I suspect, is that the application which you instituted in the Federal Court in March 2001 was an application in which you sought, among other things, relief under the Trade Practices Act resulting from what you described as trespass to land and chattels of yours, and various other conduct.  A central foundation for that claim was the claim that you were entitled, as against the Bank, to possession of the land.  The Bank’s answer was to cross-claim, saying that it was entitled to possession of the land as against you.  The answer against you, I suspect, is that there is a single controversy of which an important element is Mr Maher or is Commonwealth Bank entitled to possession of the land.  That is the nub of it.

MR MAHER:   It is, your Honour, possibly, except that, as I have mentioned previously, determination of the lease has never been determined.  It has been signed, it is sealed and it is prior in time to the Bank’s mortgage.  Therefore my standing for possession is greater than the Bank.  Mr Taylor has gone on affidavit to say that he has never received an order for possession.  The Bank never sought to challenge that, to bring him forward.  They have had four years to do this.  Their cross-claim came some two years after the commencement of the action.  If they were concerned about it, they should have brought it right at the front, or at least they should have subpoenaed Mr Taylor or cross-examined Mr Taylor during the trial.  He was available.  The fact that I was not available through sickness, as mentioned in my affidavit.  I believe it greater than the Bank’s evidence of an unsworn affidavit by a bank manager, unsigned affidavit.  I never even

was served with that, and it was listened, or heard to, in the absence of cross‑examination, which still leads that my standing of the lease is in prior time to the Bank and they were on notice at the time they lent the money.

The further actions which, as you quite correctly put it, are not part of what is here today, does involve trespass; they have never denied that.  In the discovery comes the evidence that they had given orders to empty the place, “Just take it to the tip”, yet they have photographs of all that…..There was desks, there was chairs, there was bedding, there was household effects.  But t was not, “Look, we’ll audit it for 20 days or 30 days and give him appropriate time or whoever to claim this stuff.”  You know, it was just say, “Take it to the tip”.

What I am indicating to your Honour is that this has been the action of the Bank all of the way through – strong-minded, high‑handed, did not go across to any court in the State of Victoria to get an order for possession at all.  I had all those rights.  They say that they served Mr Taylor, but Mr Taylor has gone on affidavit to say that he has not – they have never sought to seek from Mr Taylor any definite…..and what has been heard in a determination of possession, as I say, is wrong.  It is on an unsworn statement – unsigned statement, but his Honour said that he would not listen to it if it was not served on the other side - it is in the transcript - and that he would not hear it if it had not been served or sworn, but he did hear it.  That is the basis of my…..an order for possession.

It is not a light matter.  I mean, I have stuff in there.  I run a small business from there.  It is not a big one.  There are papers, there are files in there.  The Bank knows this.  I have been there since 1995, your Honour.  I have parking permits from the Melbourne City Council, electricity accounts, telephone lines.  There are files in there that belong to other people.  …..your Honour, and I think it is a question that should be explored in full.  It is a question that I would have thought Justice Finkelstein would have come along to lend a bit of weight to what I have said against him.

HIS HONOUR:   Yes.

MR MAHER:   I think that I have expressed myself as much as I can ‑ ‑ ‑

HIS HONOUR:   Yes, thank you, Mr Maher.

MR MAHER:   ‑ ‑ ‑ litigant in person, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Shepherd.

MR SHEPHERD:   If your Honour pleases.

HIS HONOUR:   Now, you have filed a summary of argument.  Have you supplied a copy of that summary of argument to Mr Maher?

MR SHEPHERD:   Yes, we have, your Honour.

HIS HONOUR:   Is there anything you wish to say in amplification of it?

MR SHEPHERD:   Just to echo what your Honour has said, that the point against the applicant is that the applicant raised federal matters.  As part of the controversy the applicant alleged he had a right to damages for wrongful interference with his possession of the property.  By way of defence the Bank obviously raised that it had a right to possession.  One, in my submission, could not find clearer substratum on each side of the application and cross‑application, but it went further in that, even if there had been a contravention by the Bank of the Trade Practices Act, it claimed it had a set-off against the damages based on rent; being rent, if the applicant was correct, was rent over or under a lease, to wit as mortgagee in possession.  So that was another string to its bow, another aspect which fortifies, in my respectful submission, my contention that there was jurisdiction.  Accordingly, there is no reason to consider that there is an arguable case that the order nisi should be granted.  They are the matters, your Honour.

HIS HONOUR:   Yes.  Mr Maher, is there anything you want to add by way of reply to what Mr Shepherd has said?

MR MAHER:   Your Honour, yes, there is.  It will be fairly brief.  I am not comprehending it fully in its legal terms, but when Mr Shepherd referred to rent, or repayments of the mortgage, as I say, they were placed on notice of the lease prior – and if they sought any relief by way of rental or repayments of mortgages, then that action should have been taken against Mr Taylor, the registered proprietor.  You do not take that action against the lessee.

At no time have they sought to obtain from Taylor, the registered proprietor, relief in the way of any rent or any repayments at all.  So that excludes me as a tenant from that argument that they should be entitled to rent or that I should have been paying them money, because the agreement that was made with Taylor at the time was made available to the Bank some two years later when Mr Taylor refinanced.  That is the crux of the matter.  The Bank deny this.  Mr Taylor says that it was so.  They have never sought to challenge him on two occasions, one in the year 2000 and one in 2003 when he placed those affidavits before the court.  They never sought to make him a party.  They could have easily have joined him for part of it, but it is not so.

So I rebut the argument about the rental.  I rebut that that gives them any consideration.  They have never been in possession up until this last chance.  I have always been in possession.  There are numerous letters that have been sent to them, which are in the Federal Court file, where they were aware of a tenant in the property, and that has not squarely been raised.  So I put it to your Honour that – I am repeating myself – but I rebut Mr Shepherd’s assumptions or submissions that the Bank should have been paid rent, but they had their records with the registered proprietor and not with myself.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Maher. 

On 21 March 2001, Mr Dennis Maher filed an application in the Federal Court of Australia which he described as “application for damages at law resulting from trespass to land and chattels of the applicant” and “application for damages pursuant to section 82 of the Trade Practices Act (Cth), sections 51AA, 52 and 53A resulting from trespass to land and chattels of the applicant and unconscionable and misleading conduct and threatened misleading conduct” of the Commonwealth Bank of Australia.

The applications sought various forms of relief, but as an amended statement of claim filed in that proceeding in about September 2002 revealed, Mr Maher’s complaints all proceeded from the premise identified in paragraph 1 of that amended statement of claim that he “is and was at all times material in lawful possession of premises situate at and known as 384 Spencer Street, Melbourne, more particularly described as the land and all improvements thereon contained in Certificate of Title Volume 0894 Folio 782”. 

In February 2003, the Commonwealth Bank of Australia filed a cross‑application in the proceeding instituted by Mr Maher in the Federal Court of Australia. By that cross‑application, the Bank sought, amongst other relief, an order for the possession of the land. In the alternative, the Bank sought a declaration that Mr Maher held no interest in the land in the period February 1995 and thereafter, whether as a tenant in possession of the land, within the meaning of section 42(2)(e) of the Transfer of Land Act 1958 (Vic), as a tenant at sufferance, or otherwise, and a declaration that as at 28 July 1998 Mr Maher held no interest in the land. In the still further alternative, the Bank sought declarations that a lease which Mr Maher alleged he had made with Mr Malvyn Gregory Taylor either had been terminated or was liable to termination.

On 5 February 2004, Justice Finkelstein of the Federal Court of Australia made orders that the Commonwealth Bank recover possession of the land and that Mr Maher pay the costs of the cross‑application brought by the Bank, including any reserved costs.  The execution of that judgment is now threatened.  Mr Maher applies for an order nisi calling on Justice Finkelstein and the Commonwealth Bank to show cause why certiorari should not issue to quash the order of Justice Finkelstein made on 5 February 2004, and an order nisi calling on those respondents to show cause why prohibition should not issue directed to the Sheriff, prohibiting the Sheriff from executing process based on the order of Justice Finkelstein made on 5 February 2004. 

Though the grounds stated in the draft order nisi extend to 13 paragraphs, in essence, Mr Maher contends that the Federal Court of Australia had no jurisdiction to make the order for possession which was made on 5 February 2004. 

In my opinion, the material which Mr Maher has filed does not demonstrate that it is arguable that the Federal Court of Australia had no jurisdiction to make the order of which he complains.  By his own proceeding in that court, commenced, as I have noted, on 21 March 2001, Mr Maher regularly invoked the jurisdiction of the Federal Court in a matter arising under the Trade Practices Act 1974 (Cth). Central to the claims which he made in that proceeding was the contention that he was, at relevant times and still remained, entitled to possession of the land against the Commonwealth Bank of Australia. The Bank denied that that was so and by its cross‑application contended that it was entitled to an order for possession.

The claims which each party made in the proceedings were claims which arose out of “common transactions and facts” or “a common substratum of facts”:  Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512 per Justice Mason; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 585 paragraph 140. The different claims which each party in the proceeding in the Federal Court made were so related that the determination of one was essential to the determination of the other: Philip Morris (1981) 148 CLR 457 at 512 per Justice Mason; Re Wakim (1999) 198 CLR 511 at 585 paragraph 140. It could not be said that the claims were “completely disparate”: Felton v Mulligan (1971) 124 CLR 367 at 373 per Chief Justice Barwick. They were not “completely separate and distinct”: Philip Morris (1981) 148 CLR 457 at 521 per Justice Murphy, or “distinct and unrelated”: Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 482 per Justices Stephen, Mason, Aickin and Wilson.

There was, therefore, a single matter before the Federal Court and the orders which that court made on the application of the Commonwealth Bank resolved if not the entire controversy, at least a very significant element in that controversy.  That is reason enough to conclude that it is not arguable that the relief which Mr Maher seeks is available. 

There is, however, a further point which should be mentioned.  On their face, the points which Mr Maher would seek to agitate in this Court appear to be points that would have been open to him on an appeal to the Full Court of the Federal Court of Australia from the orders of Justice Finkelstein.  That remedy being available, it would not be appropriate in the circumstances of this case to grant relief of the kind which he seeks:  see Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 471 paragraph 279.

For these reasons, the application for order nisi is dismissed.  Yes, Mr Shepherd. 

MR SHEPHERD:   I seek costs, your Honour, including reserved costs, and I ask that your Honour certify that the matter was proper for the attendance of counsel. 

HIS HONOUR:   Yes.  Are you able to resist an order for costs, Mr Maher? 

MR MAHER:   I would object, your Honour. 

HIS HONOUR:   I understand that.  Upon what basis should the Bank not have an order for costs? 

MR MAHER:   On the basis, your Honour, that their actions, as described to you and as portrayed to you, throughout the history of this matter, do not – how can I put it – lend it to them without some culpable matters that they have raised ‑ ‑ ‑

HIS HONOUR:   I understand you are very critical of the Bank’s conduct, Mr Maher.  I understand that that is the position you adopt.  The fact is the application you have made has failed.  Why should you not pay the costs of it? 

MR MAHER:   Well, I would still resist, your Honour.  As I said, not being of a legal mind, I cannot give them to you at the moment. 

HIS HONOUR:   Yes, very well.  The orders will be: 

1.        Application dismissed with costs, including reserved costs;

2.        I certify for the attendance of counsel. 

The Court will adjourn. 

AT 4.08 PM THE MATTER WAS CONCLUDED