Martin, Application by

[2001] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Registry  No C9 of 2001

In the matter of –

An application by ANTHONY GILBERT MARTIN for leave to issue a proceeding

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 28 MAY 2001, AT 10.00 AM

Copyright in the High Court of Australia

MR A.G. MARTIN appeared in person.

HIS HONOUR:   Yes, Mr Martin.

MR MARTIN:   Your Honour, I was not aware that I was entitled to make any submission to you until I came this morning.

HIS HONOUR:   You are the applicant in these proceedings and the proceedings affect your wife, I think.  Does she know of the proceedings?

MR MARTIN:    Myself and my wife, but this particular summons, your Honour, only affects me.

HIS HONOUR:   Yes, but you are asking for leave to commence proceedings and the proceedings are in the name of the wife and, in that sense, indirectly they affect her.

MR MARTIN:    No, your Honour.  I am sorry, your Honour.  The special leave has already been filed and all have been done ‑ ‑ ‑

HIS HONOUR:   Already been - - -?

MR MARTIN:    Filed.  There is a special leave in the name of my wife and me and all the documentation on that has been done.

HIS HONOUR:   That is special leave from whom?

MR MARTIN:    From the Full Federal Court decision of 9 February.

HIS HONOUR:   Of this year?

MR MARTIN:    Of this year.

HIS HONOUR:   Well, I am not aware of that.  I have no knowledge of those proceedings.  Those proceedings will take their own course.

MR MARTIN:    Yes, your Honour, but those proceedings have now been made nugatory because my wife and my marital ‑ ‑ ‑

HIS HONOUR:   You had better speak into the microphone, if you would.

MR MARTIN:    Sorry.  Sorry, your Honour.  My wife and my marital home, which was the issue, it has now been transferred.  It was to stop that transfer being registered was the summons they applied for.  Now, that has occurred but, luckily enough, the transfer was done to a party who was given notice of, and who was the losing bidder against me on that auction.  Now, if I could before your Honour loses a bit of patience with me, I have not much – the only submission I like to make, your Honour, is that there are two cases in which – that I want your Honour’s attention to:  Allesch v Maunz, which was 3 August 2000 and your Honour’s comments appears in – appears in paragraph 34.  I do not know how far it goes because I read it about month – a month ago and the comments I like to draw your Honour’s attention is:

Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.

And there was another various comments your Honour made saying that on reference to maxims of justice and various maxims of justice is now imported in various legislation, including the – implicitly in the Constitution.

One other case which I want your Honour’s attention to is – again, your Honour, was involved in it peripherally, that is, Williams and Others v Spautz, in which your Honour’s involvement in it was peripherally.  I mean, you were still a judge, you were the Vice‑Chancellor of Newcastle University in that one.

HIS HONOUR:   I remember the case well.

MR MARTIN:   ‑ ‑ ‑ and that involved an abuse of process.  Now, I issued a summons to stop this transfer.  The summons was not issued ‑ ‑ ‑

HIS HONOUR:   But what is the power of this Court to grant the relief that you seek in the summons?

MR MARTIN:    If your Honour read ‑ ‑ ‑

HIS HONOUR:   Do you say that the grant of the relief is ancillary to the hearing of the special leave hearing which is pending in the Court?

MR MARTIN:    Absolutely, your Honour.

HIS HONOUR:   And when is that special leave hearing likely to be heard?

MR MARTIN:    I have done all my share expeditious ‑ ‑ ‑

HIS HONOUR:   Well, you might have, but you have not done all your share to help me in the summons because you have an affidavit which spends pages and pages dealing with your complaints about the Deputy Registrar but does not refer to the proceedings in the Full Federal Court which are pending in this Court.

MR MARTIN:    I think, your Honour, it is in – in paragraph 7.  I am sorry.  I read it this morning at 4 o’clock and I was disappointed myself, your Honour, and the criticism your Honour has made is valid on that ‑ ‑ ‑

HIS HONOUR:   There is so much irrelevant material here that it would not be surprising if I missed something relevant.  Just a moment, I will have a look at paragraph 7.

MR MARTIN:    No, sorry, that is not the list – that is not paragraph – that is I think paragraph 7 of my affidavit of ‑ ‑ ‑

HIS HONOUR:   I have two affidavits.

MR MARTIN:    Yes.

HIS HONOUR:   One of them is an affidavit of 23 April 2001 and the other is an affidavit of 14 May 2001.  Now, do you read both of those affidavits?  Are you placing both of those affidavits before me?

MR MARTIN:    Yes, your Honour.  You need – in ‑ ‑ ‑

HIS HONOUR:   There is so much irrelevancy in them - you must learn that courts are busy places and if you want their help you have to focus your mind on the issue that is before the court.  Now, as I understand it, the issue that you are seeking to raise by your summons – this is completely unclear on the material you have filed – is that you want the Court, in effect, to give a stay order of some kind so as to protect the utility of the special leave application which you have filed in the Court.  Is that correct or not?

MR MARTIN:    Yes, in the principal ‑ ‑ ‑

HIS HONOUR:   Well, why did you not say that in your affidavit instead of spending paragraph after paragraph on irrelevancies?  Anyway, I have no sworn material here concerning the proceedings in the Full Court in February.  I have no judgment of the Full Court in February.  I have no documents of your special leave application from that case.

MR MARTIN:    You have, your Honour.

HIS HONOUR:   Well, point me to those.

MR MARTIN:    Your Honour, in my affidavit of 23 April, paragraph 2, your Honour ‑ ‑ ‑

HIS HONOUR:   Just a moment.  Where is the judgment of the Full Court in respect of which that application relates?

MR MARTIN:    It is in one of the annexures, your Honour.

HIS HONOUR:   I have the judgment of the Full Court which is dated 27 July 2000.

MR MARTIN:    No, that is not the one.

HIS HONOUR:   And that is the matter in respect of which Justices McHugh, Hayne and Callinan refused special leave.

MR MARTIN:    No, your Honour.  It was a separate one.

HIS HONOUR:   But the one of 27 July 2000 is the one in respect of which their Honours refused special leave.  Is that correct or not?

MR MARTIN:    No, your Honour.  No, your Honour.  The one their Honours refused leave was in relation to 18 May of Justice Wilcox, Burchett and Marshall.  Marshall ‑ ‑ ‑

HIS HONOUR:   I did see that you have approached this Court on six occasions for special leave and that, I think, was the sixth and it was refused on that occasion.  Do you tell me that – was there a special leave hearing in respect of the judgment of the Full Court of the Federal Court of 27 July 2000 or not?

MR MARTIN:    No, that was in favour of me.  That is – exactly.  That was in favour of me and there was no application ‑ ‑ ‑

HIS HONOUR:   I do not think so.  That was ‑ ‑ ‑

MR MARTIN:    I thought – if your Honour – I have ‑ ‑ ‑

HIS HONOUR:   Is that not the case, that is to say the judgment of 27 July 2000 in which their Honours said that the only order that Justice Crispin could have made was that the proceedings which you had commenced was incompetent?  I am looking at page 14 of the joint reasons of Justices Einfeld and Kenny of 27 July 2000.

MR MARTIN:   No, your Honour, that – Justice Crispin was involved with Justice Higgins.

HIS HONOUR:   Or it may have been Justice Higgins.

MR MARTIN:    Your Honour, that – in that one, your Honour, the majority decision, in fact ‑ ‑ ‑

HIS HONOUR:   It was an unanimous decision.

MR MARTIN:    Unanimous decision was – appeal was allowed, then the second order made was all the orders were set aside.  The three orders that I sought was given in the appeal in the first one, then in the second one all the six orders Justice Higgins made was set aside, even the three that I did not ask, in lieu of declaring the – that is how I read the second order – in lieu of declaring Justice – the action incompetent.  That is the way – but that has not been appealed ‑ ‑ ‑

HIS HONOUR:   Was that a proceeding that you had commenced?

MR MARTIN:    Yes, your Honour.

HIS HONOUR:   And the Full Court held that the only decision which the primary judge – that is, Justice Higgins – could have made in this case was that the proceeding was incompetent.  So I fail to see how that was in your favour.  They were saying that your proceedings were incompetent.

MR MARTIN:    The Full Court - and Justice Gaudron addressed this issue, your Honour, not ‑ ‑ ‑

HIS HONOUR:   Justice Gaudron merely gave a stay for a short time until the Full Court could hear the matter.

MR MARTIN:    No, your Honour.  No, until the special leave on the previous occasion.  I am sorry, your Honour.  Your Honour, if I could just focus – I have got the paragraphs.  The – my affidavit of the 23rd, your Honour, in paragraph 2, I have set out sworn evidence of what I – the proceedings I have…..and in paragraph 7 I have said that:

The deponent verily believes that the consequences of the said dismissal of the Notices of Motion of 17th April 2001 is not only that this special leave will be made nugatory but, furthermore –

all the other things, you know.

What I am getting at is that I have put in a cumbersome fashion, your Honour, and it is cumbersome and I will not – the criticism is valid.  It is that the summons is purely to say – to protect the subject matter of the special leave.  If the summons was not issued, the special leave application would be made nugatory.  Now, I was then, when they addressed the balance of convenience issue, the ‑ ‑ ‑

HIS HONOUR:   No, no, no.  First of all, you have to show that this Court has the jurisdiction to issue the summons and the only possible jurisdiction that I can see at the moment is that you say you have started another proceeding in the Court.  It is from a judgment of the Full Court of the Federal Court of February of this year.  You have not bothered to place before me the judgment of the Full Court of the Federal Court of February this year in respect of which you are seeking defensive orders from this Court to protect the utility of a special leave application.  I do not see why I should go on with the matter.  If you do not put the basis before me, it is just a waste of my time.

MR MARTIN:    Your Honour, it is in the file here.  Your Honour, it is ‑ ‑ ‑

HIS HONOUR:   It may be in the file, but it is your duty, if you are seeking relief from the Court, to put the matter before the Court.

MR MARTIN:    But I was not aware that – I was not aware that I would be addressing your Honour.

HIS HONOUR:   I mean, if you have seven applications before this Court at various times, you cannot expect that a Justice of the Court keeps in mind all of the matters that you bring to the Court.

MR MARTIN:    The particular judgment ‑ ‑ ‑

HIS HONOUR:   Do we have the judgment of the Full Court of the Federal Court there now in your special leave application to this Court from the ‑ ‑ ‑

MR MARTIN:   Yes.

HIS HONOUR:   ‑ ‑ ‑ Full Court in February?

MR MARTIN:    Yes, it is in the files there, your Honour.

HIS HONOUR:   Which file?

MR MARTIN:    In this file.  In this particular special leave file, your Honour.

HIS HONOUR:   Is it annexed to the affidavit or not?

MR MARTIN:    No, your Honour, I do not think it is annexed to the affidavit.

HIS HONOUR:   Have you filed your special leave application?

MR MARTIN:    Yes.  The special leave application ‑ ‑ ‑

HIS HONOUR:   Have you filed your arguments in support of your special leave application?

MR MARTIN:    Yes, your Honour.  Yes, your Honour, and my reply to their – the submissions in reply and the ‑ ‑ ‑

HIS HONOUR:   And has that been listed for hearing or not?

MR MARTIN:    Not yet, your Honour.  The index was not settled until the summons was – the index was not put in.  You would see the summary in paragraph 2.  The settled index was not given.

HIS HONOUR:   You see what concerns me is that the Full Court of July last year said that there has been an awful lot of litigation in this case but in the end it comes down to a very simple matter.  You were apparently an officer of a company which is now in liquidation.  The company is the registered proprietor of property on which is a home.  You are living in the home and have lived in the home since, I think, 1979.  You say you have done some improvements to the home but, nonetheless, the company in liquidation is the registered proprietor.  The liquidator wants to have the assets of the company in liquidation and you are seeking to say that because you were a tenancy at will that you can stop the liquidator from getting access to the property and stop the Registrar-General from removing caveats or require the Registrar-General to restore a caveat.

Now, that seems to defy the decision of this Court last September which refused special leave to appeal from that decision and, if that is all you are seeking to do, then that appears to be an abuse of process and the Court will not allow that to be done.  If, however, in some way it is ancillary to a new special leave application in relation to a judgment that you have not put before me, well, that is an entirely different case and I will deal with that on a day when you file proper documents.

MR MARTIN:    It is the other – the second one and ‑ ‑ ‑

HIS HONOUR:   Well, it might have been helpful, instead of spending so much time complaining about officers, complaining about everybody, to address your mind to the matter that you are trying to put before the Court.  I mean, I am not concerned with complaints about officers.  You can take that up with the Registrar.  I am concerned with a judicial proceeding and you have just completely wasted my time.  I have read volumes of material.  Justice Gaudron on the last occasion said that the litigation was in a mess and you do not help things by not putting the relevant documents before the Court.

MR MARTIN:    Your Honour, Justice Gaudron also said that litigation is in a mess not to my making, substantially to the opposite side.

HIS HONOUR:   Well, this morning it seems to be of your making, I am afraid to say.

MR MARTIN:    And if – and one other thing, before your Honour finalises it, your Honour.  If your Honour could read Justice – majority decision of Justice Kenny – Justice Einfeld and Kenny ‑ ‑ ‑

HIS HONOUR:   Yes, I have read that.

MR MARTIN:    You have read that, and I would say that that summarises the background accurately and that also – just notwithstanding their view of the proceeding, that justifies what they thought should be done.

HIS HONOUR:   Well, you say it summarises things accurately, and that appeared to me to be a very handy starting point for my understanding of what this case was about, but when you say it summarises things accurately, it is there that I read their Honours’ statement that this looks a complicated case but, in fact, it is not.  Their Honours start their reasons with these statements:

The circumstances leading to the present appeal, although not intrinsically complex, have nonetheless led to a great deal of litigation. 

Then they set out the history of the matter and they quote a passage in which they say that, in essence, you are a tenant at will in property, the registered proprietor of which is the company in liquidation, and apparently you were an officer of that company at one stage, and that you are just a tenant at will.  They want to get access to the property.  You do not want to give them access to the property.  But this Court, in refusing special leave to appeal, appears to have affirmed that the registered proprietor should have access to the property and that you did not, at that stage at least, have any case to put before this Court to argue to the contrary.

MR MARTIN:    Your Honour, with all the greatest of respect to your Honour, your Honour has misunderstood the – that case.  With the greatest of respect, if I could ‑ ‑ ‑

HIS HONOUR:   Well, if you do not put the documents before me - do not worry about the respect; it is a matter of help.  You are the one who is making an application here.  If you do not put the relevant documents ‑ ‑ ‑

MR MARTIN:   If I could ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ and spend all your time complaining about people, you cannot expect me to understand everything that you are wanting to put before me today.

MR MARTIN:    Your Honour, the majority decision – majority decision of Einfeld and Kenny, with ‑ ‑ ‑ 

HIS HONOUR:   It was an unanimous decision.  Justice Miles simply concurred separately.

MR MARTIN:    Agreed with them but there was a secondary rider Justice Miles put on it.  The unanimous decision was that all the litigation involved only getting of the possession of this.  No court has determined – no court at any stage had determined either tenancy rights or any other rights of ours; (b) that – that is the one – that the Federal Court have got power under section 24 of the Federal Court Act, notwithstanding whether an action has been started competently or otherwise to do justice and in that context they felt that (a) the appeal has to be granted; (b) all the orders Justice Higgins made should be set aside.

Now, (c) they decided, and in my view they decided it erroneously and the opposing party argued it in numerous thing that it was erroneous, that the action was incompetent because there has been a misunderstanding of jurisdiction.  In a tenancy involving only – only a contract – only an agreement under tenancy the Tenancy Board is involved.  In a tenancy involving compensation, this, that, everything else, then declaratory orders are to be sought from a higher court for the basis and then come up and execute a…..

Now, in this particular case there was no tenancy for value involved in it and Justice Higgins – and both parties agreed before Justice Higgins he has got jurisdiction, this, that, everything else, and generally it was proceeded.  That third part in which your Honour is concentrating on is a – Justice Einfeld and Kenny got it wrong as well, but ‑ ‑ ‑

HIS HONOUR:   But you sought special leave to appeal ‑ ‑ ‑

MR MARTIN:    No, your Honour, no.  This is where the confusion in your Honour and your Honour’s anger towards me is based on that ‑ ‑ ‑

HIS HONOUR:   It is not anger towards you.  It is a sense of frustration.

MR MARTIN:    Frustration.

HIS HONOUR:   That you have not put before me the document that is relevant to your application today, namely, a judgment of the Full Court of the Federal Court of February 2001, which I understand is the very basis on which you are seeking these summons to be issued.

MR MARTIN:    It is in – it is in my affidavits.  Your Honour, the documents filed in this Court are in my annexures in my affidavit of 23 April.

HIS HONOUR:   Is the judgment of the Full Court of February 2001 there or not?

MR MARTIN:    No, your Honour.  It is in the file, but all the draft – if your Honour can look at – if your Honour could bear with me for a few – I know it is annexure D ‑ ‑ ‑

HIS HONOUR:   Just a moment.  You are seeking special leave to appeal from a judgment of the Full Court of the Federal Court of Australia of February 2001.  That matter has not yet been listed, but you say the judgment is in a Court file and also in a Court file are the arguments of the parties for and against the grant of special leave.  Is that correct or not?

MR MARTIN:    Yes, the arguments are in my affidavit ‑ ‑ ‑

HIS HONOUR:   Very well.  Well, I will just pause for a moment and I will ask the Registrar do we have that file in Court?  I have just been handed the decision of the Full Court of the Federal Court constituted by Justices Drummond, Dowsett and Gyles of 9 February 2001 in Martin v Individual Homes Pty Limited (in liquidation), reference [2001] FCA 91, and also in that file is the applicants’ summary of arguments and the respondent’s summary of arguments. I am just going to sit here now and read these.

MR MARTIN:    Could I just ‑ ‑ ‑

HIS HONOUR:   Sit down for a moment.

MR MARTIN:   ‑ ‑ ‑ interrupt once more?  Your Honour, there is the – in that file it may be but not in my affidavit.  Annexure DD has got the – there is not really the application, summary, draft notice of appeal, reply of the respondent, and my reply.

HIS HONOUR:   BB?  BB ‑ ‑ ‑

MR MARTIN:   No, your Honour, no ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ that have in my file in the affidavit is an originating summons SC21 of 1993 in the Supreme Court of the Australian Capital Territory and documents of 1993.  It has nothing to do with documents of 2000 or 2001.

MR MARTIN:    Your Honour, just – the ‑ ‑ ‑

HIS HONOUR:   Perhaps I will hand down to you the two affidavits which I have.

MR MARTIN:    Yes.

HIS HONOUR:   Whilst you are looking at those, I will look at the ‑ ‑ ‑

MR MARTIN:    Okay.

MRS S.D. MARTIN:   Your Honour, I am Sue Martin.  Do you mind if I just walked up to the table to help my husband find the documents?

HIS HONOUR:   Of course not.  Yes, come forward.  I will just hand you back the two affidavits.  One is an affidavit of 23 April 2001 and the other is an affidavit of 14 May 2001.  You can sit down, if you like, and have a look at the documents.

I see in the respondent’s summary of argument that they say that the first respondent is now in possession of the property, that is, the liquidator, and that it intends to sell the property at auction on 7 April 2001.  Did that sale go ahead or not?

MR MARTIN:    In fact, it did not.  The sale was put on the 4th and I was the highest bidder, but I wanted the deposit put in the court and they refused it and they re‑put it in and sold it and that happened.  This is it and this ‑ ‑ ‑

HIS HONOUR:   What happened?  The auction went ahead?

MR MARTIN:    It went ahead.

HIS HONOUR:   You were the highest bidder?

MR MARTIN:    Yes.

HIS HONOUR:   Was it knocked down to you or not?

MR MARTIN:    It was first knocked down, but the contract was not entered into and then it was ‑ ‑ ‑

HIS HONOUR:   So, has it been sold by private treaty separately or not?

MR MARTIN:    No, a second auction was put in and this is what the summons is about, your Honour.  The summons ‑ ‑ ‑

HIS HONOUR:   When is the second auction due to be held?

MR MARTIN:    I beg your pardon?

HIS HONOUR:   When is the second auction ‑ ‑ ‑

MR MARTIN:    It was held immediately.

HIS HONOUR:   It has been held?

MR MARTIN:    Yes, immediately.

HIS HONOUR:   And the property – when was that held?

MR MARTIN:    That happened the same day.

HIS HONOUR:   I see.

MR MARTIN:    And then this is it and – and this is what the summons is about.  I put a caveat on the day before the auction and I gave notice of it to all the prospective bidders and all the other parties.  Now, that particular registration – and I – I took the matter to the – I mean, I was given what is known as a 107 order, which is…..off New South Wales - in the New South Wales it is from section 77 onwards.  It is divided into about 10 different parts.  In the ACT it is combined into three sections, which confuses it a little bit, but anyway, what I am getting at is that the caveat was going to be removed and registration was going to happen.

Now, I took it to Justice Crispin the first day available, then that same day I brought it here – that was the 20th – a draft one, 20 April, sorry, your Honour, and then 23rd I brought the final copy and then the registration has now occurred during that time and the transfer occurred and – and your Honour’s criticisms are all accurate and that is what my – my affidavit of the 14th sets it all out.

HIS HONOUR:   Who is the purchaser of the property?

MR MARTIN:    It is noted down on my – all the transfer documents are in the affidavit, your Honour.  Here, your Honour, it is in ‑ ‑ ‑

HIS HONOUR:   Well, you have my copy of the affidavit.

MR MARTIN:    Your Honour, it is – and it has been marked I think ‑ ‑ ‑

HIS HONOUR:   Bring both affidavits back.

MR MARTIN:    ‑ ‑ ‑ annexure B, your Honour.

HIS HONOUR:   Which affidavit.

MR MARTIN:    14 May.  Annexure B has got all the transfer documents, your Honour.

HIS HONOUR:   So the purchaser and new registered title proprietor is James – George James, Beverley Papadimitriou, Anna Papadimitiriou and Akim Halank as joint tenants.

MR MARTIN:    That is right, and they were people who were given notice of the caveat and ‑ ‑ ‑

HIS HONOUR:   But the caveat is in operation or was removed?  The caveat was removed?  I follow.

MR MARTIN:    It was removed on the 26th, your Honour, and it is to stop the removal of the caveat this summons was all about.

HIS HONOUR:   Yes, but you are not seeking a stay of the stopping the caveat.  The caveat has, in fact, been removed.  You are seeking, in effect, an order that the caveat be restored.  What power do I have to make such an order?

MR MARTIN:    Your Honour, I am not asking for the order, your Honour.  I am ‑ ‑ ‑

HIS HONOUR:   I thought that was the second paragraph in your summons.

MR MARTIN:    Your Honour ‑ ‑ ‑

HIS HONOUR:   You see we have to concentrate on the summons and the relief that you are seeking from this Court, and before you get that relief the Court has to be satisfied that it has jurisdiction and power to make the orders and that it is right to make them in the circumstances.  Now, what I am asking you is what is the power that I would have to make the order ordering the Registrar-General of the Australian Capital Territory to restore a caveat which has been removed.

MR MARTIN:    But, your Honour, at the moment – your Honour, at the moment because the registration has occurred, there must be an amendment made to the summons and the amendment that I would be contemplating would be that the – that is of the hearing of the summons, your Honour, with all the parties being notified and there would be one additional party being involved, which is the new registered proprietors – they would be given notice – and the orders – substantive order at that summons – this is only a leave to issue that summons, your Honour.  The summons would be that the Registrar-General allow Anthony Gilbert Martin to place a new summons – sorry, new caveat over this land against a new registered proprietor so that the subject matter – and it does not – the subject matter of the special leave is not destroyed and all the parties ‑ ‑ ‑

HIS HONOUR:   But it will not be destroyed.  You are no longer in possession of the property.  You have been out of possession of the property since when?

MR MARTIN:    13 May – 13 September 2000, your Honour.  We were evicted.

HIS HONOUR:   Well, that being the case, and somebody else has now acquired the property, though you say with notice of your claim to interest in it ‑ ‑ ‑

MR MARTIN:    Yes, and I put it in sworn – sworn information on that.

HIS HONOUR:   The caravan has, therefore, moved on and it is not a matter of issuing a stay order in order to prevent you being evicted from your home.  That eviction has taken place.  So the issue will be whether or not some order is necessary in order to protect the utility of your special leave application.  But whatever is necessary, it is not going to include restoring you to possession.  That will have to await until the special leave application is heard.

MR MARTIN:    I am not asking – you see, in fact, your Honour, possession is not the issue now.  Possession has been – special leave on possession came in before Justice McHugh, Hayne and this one and end of story, end of story, and I am not regurgitating that.  Now is only as per Justice – or the unanimous decision that in allowing that appeal on 27 July that ratio decidendi decision said no eviction before compensation.  Now, that is my understanding.  So what I am getting at is, you know, I am not asking ‑ ‑ ‑

HIS HONOUR:   You have, in fact, been evicted.  You and your wife have been removed ‑ ‑ ‑

MR MARTIN:    Yes.

HIS HONOUR:   ‑ ‑ ‑ and, therefore, it would seem to me, whatever remedies you have are remedies ex post.  That means after the determination of any rights that you may have, if the special leave is granted and if this Court sets aside the orders of the Full Court of the Federal Court of 9 February 2001, then it will be a matter of sorting out what can be done to either restore you to possession, if that is your entitlement, or to provide you with compensation against somebody, if that is your entitlement.  But all of this is contingent on your getting special leave to appeal from the orders of 9 February 2001, which you did not include in all these papers but which I have now read.

MR MARTIN:    I have included it, your Honour, except the judgment.  If you look at my affidavit of the 23rd ‑ ‑ ‑

HIS HONOUR:   Yes, but the judgment is not there, you see.

MR MARTIN:    Judgment is the only one – and if I could refer your Honour to the draft notice of appeal.  Your Honour, could I again impose on you Honour?  I know you have been extremely patient, your Honour.  Your Honour, possession is not at all asked for.  It is end of story.  It is only – the only issue is the transfer.  It has been transferred to a party now.  Now, luckily ‑ ‑ ‑

HIS HONOUR:   That is to that ‑ ‑ ‑

MR MARTIN:   ‑ ‑ ‑ the party that it has transferred is not a party without notice, not a disinterested party.

HIS HONOUR:   That is Mr James and his colleagues?

MR MARTIN:    That is right, your Honour.

HIS HONOUR:   Yes.

MR MARTIN:    But if some form of summons is not – leave for me this summons is not given to put a caveat, I am not allowed at the moment, under - under ACT Lands Title Act, I am not allowed to put – re‑put a caveat on it without leave of the Court.

HIS HONOUR:   Yes.

MR MARTIN:    Now, if it is not granted, your Honour, then this property would be now retransferred again to somebody on which – which would be then would be a party without leave or notice – without notice, right.  So my request at this – and I suggest just to leave only – I am only asking under the principle your Honour yourself, so brilliantly and so succinctly ‑ ‑ ‑

HIS HONOUR:   You can leave out the adverbs.  Just tell me what I said.

MR MARTIN:    I could put some negative adverbs in relation to it as well.  Your Honour ‑ ‑ ‑

HIS HONOUR:   Well, do not worry about that either.  You did not give notice of this decision, so I do not have it before me and I do not remember what I said.  What is the principle that you support that you wish to rely on?

MR MARTIN:    The principle I want to support that and if you – every single maxims of justice has been violated in this case for the last 12 years.

HIS HONOUR:   Yes.  Well, that might be so, but you have come to this Court six times and it has not convinced the Court to intervene.  So I do not think you should assume that every single maxim has been violated or one would have expected the Court on one of the six occasions to find at least one that had been violated.

MR MARTIN:    I would agree that argument of your Honour, but I would say that it has now come to the last throw of the dice, which I think the Court might, and if your Honour looks at my draft notice of appeal, which is in the affidavit of 23 April 2001, annexure D, you know – annexure DD ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MARTIN:    ‑ ‑ ‑ you know, the D in that.

HIS HONOUR:   Yes, I have DD, yes.

MR MARTIN:    And D in it.

HIS HONOUR:   Annexure D of annexure DD?

MR MARTIN:    That is right, your Honour.

HIS HONOUR:   Yes.

MR MARTIN:    Draft notice of appeal.

HIS HONOUR:   Yes, I have that.

MR MARTIN:    If your Honour – has your Honour read it, your Honour?

HIS HONOUR:   Yes, I have read that.  That was handed up.  I was incorrect in saying that you had put this before me.  You have, in fact, put it, hidden away, in annexure DD – in annexure D to annexure DD of the affidavit of 23 April.

MR MARTIN:    Your Honour ‑ ‑ ‑

HIS HONOUR:   Now, the problem – can I tell you the problem I have with that?  I have two problems.  First of all, you will remember that Justice Gyles said that your joinder of the partners in the firm of solicitors was completely unwarranted and should not be tolerated.

MR MARTIN:    Yes, your Honour.

HIS HONOUR:   I must say that I am a bit inclined to agree with that, unless you have something to say to the contrary.

MR MARTIN:    I have, your Honour, and I ‑ ‑ ‑

HIS HONOUR:   They were not parties to the proceedings below.  How can you join them as parties for the first time in the Full Court of the Federal Court and in this Court?

MR MARTIN:    Your Honour, that is the key issue of this whole dispute, in my view and I am convinced that I can convince your Honour and a Full Court, if you give me a chance, that ‑ ‑ ‑

HIS HONOUR:   Well, you will get 20 minutes chance.

MR MARTIN:    Yes.

HIS HONOUR:   I have already given you nearly three quarters of an hour.

MR MARTIN:    I am grateful, your Honour.  Mallesons signed as agent.  Mallesons signed and took possession ‑ ‑ ‑

HIS HONOUR:   Yes, but how can you add them as parties to an appeal when they were not parties to the trial?

MR MARTIN:    I did – I did apply for it in the lower courts to be joined and I gave reasons for it, if your Honour looks at it.

HIS HONOUR:   And that was not ordered by the primary judge?

MR MARTIN:    That is right, and if your Honour looks at it in my notice of motion before Justice Miles, your Honour will see clearly – clearly that possession has been taken, not by a party – not by a party who can claim – who is a lessor under common law ‑ ‑ ‑

HIS HONOUR:   But a company in liquidation has to act by a human agent.

MR MARTIN:    Yes.

HIS HONOUR:   It cannot act as a corporation.  Corporations have no blood, breath.  They have to act through human beings ‑ ‑ ‑

MR MARTIN:    Agreed.

HIS HONOUR:   ‑ ‑ ‑ and that is why it has acted, apparently, through the firm of solicitors who are acting for it as agent.

MR MARTIN:    And if your Honour looks at Crabtree v – this one, the authorities I have quoted in my reply.  If your Honour look at that, that is the key of my special leave application.  This High Court has ruled – and ruled someone who has not got an ostentatious authority cannot then say on appointing somebody else to have that authority, “I myself doesn’t have it”, and ‑ ‑ ‑

HIS HONOUR:   But if a company in liquidation gives instructions to its solicitor to act in certain respects, that would not at all be unusual in a proceeding for possession of property of which the company in liquidation was the registered proprietor.

MR MARTIN:    It is extremely unusual and I have got authorities in New South Wales on this issue, in all the courts right up to Crabtree, the authority here, and this is the key.  You see, your Honour, the point I am making is the way your Honour put it so succinctly in this – in this case and, as I said ‑ ‑ ‑

HIS HONOUR:   Just read the short passage which you rely in Allesch v Maunz.

MR MARTIN:    The one I – your Honour, I have not read it until ‑ ‑ ‑

HIS HONOUR:   I think you referred to paragraph 35.

MR MARTIN:    Yes, that is – you started at paragraph 35.

HIS HONOUR:   That is where I wrote this brilliant passage.

MR MARTIN:    Yes.  Yes, your Honour, because your Honour ‑ ‑ ‑

HIS HONOUR:   Just read to me what you say is supportive of your propositions.

MR MARTIN:    Yes, your Honour.  Your Honour, says:

Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.

Paragraph 36 is where your Honour is – before your Honour gets into the details of the case:

The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.

The foregoing provides the context of principle and of law within which the problem presented by this appeal must be resolved.  That context is not contested.  It occupied no time –

and that is a key word, “no time” –

either in the Family Court of Australia or in this Court.  It is a given.

Now, I submit to your Honour Mallesons – I mean, the key to this special leave is joining of Mallesons and it is because they executed as an agent of Individual Homes and that is – it is only the liquidator who can do it and the liquidator can only do it, your Honour, under the Corporations Law or under common law after a vesting order and a vesting order was sought and refused on it and that is in my affidavit.

Your Honour, I agree with all the criticism your Honour has made, that the submission to your Honour is in a mess and your Honour has been extremely patient, but the only thing that I will not accept – I will not agree with is that I have not included in it the – and Justice Crispin’s order is a travesty of justice, because, again, in – like Justice Gaudron said, in everything it is summarily pushed off as an abuse of process.  If I had been an abusive of process, I am entitled to be judged under the guiding principle of Williams v Spautz.

Now, Justice Crispin’s incompetent is how it has been dismissed.  I – I was joined for that particular order for the vesting order, which was refused, as a party, me and my wife, and it has been dismissed as incompetent because we have got no standing in that action and if your Honour bears with me – I mean, it does not have to be today, your Honour – this is only leave – and if your Honour thinks I have – if your Honour can give me directions and I will save your Honour’s time, I will come in prepared for your Honour to clarify and put it in an affidavit form how I should – how – you know, into saying that I had – I have standing in the action and Justice Gaudron went into details that this case has taken so much of the Court’s time ‑ ‑ ‑

HIS HONOUR:   It certainly has.

MR MARTIN:   ‑ ‑ ‑ and it is not – not all my fault and the other party have gone into the Supreme Court, the tribunal, the Magistrates Court, then back, lost it, came back, argued a different of proposition, came back and Justice Gaudron made a – and if your Honour could bear with me and read Justice Gaudron’s one clearly, sir, that ‑ ‑ ‑

HIS HONOUR:   Well, Justice Gaudron did not give a judgment.  She merely heard an application for a stay which was made by you in support of the special leave application, which was ultimately heard in September last year by Justices McHugh, Hayne and Callinan.  So all that her Honour did was to say, “I am going to preserve the subject matter.  I am going to stop you being put out of the property pending the special leave hearing.”

MR MARTIN:    Exactly.

HIS HONOUR:   The special leave hearing was heard on 12 September.  That went against you.  And on 16 September you were evicted from the property.

MR MARTIN:    13 September.  The 13th.

HIS HONOUR:   13 September.

MR MARTIN:    And I accepted it and – and no more argument – I have got no more submission to make in terms of occupation.  Finished, end of story.  And I have taken my final – I have thrown my final dice.  I have lost it and occupation is not the issue.  Now, transfer, right, and all I am saying is that the special leave only relates to transfer of the property.

HIS HONOUR:   Well, does it?  It appears to have been decided by the Full Court of the Federal Court on the basis that you were seeking leave to appeal from an interlocutory order of Chief Justice Miles, that you had purported to lodge an appeal as of right but you were only entitled to seek leave to appeal.  You had not sought that leave to appeal and, therefore, your appeal was incompetent and should be dismissed.  Alternatively, if leave was required, as their Honours seemed to think, you should not have that leave because it was a discretionary decision in a matter of practice by the primary judge.

MR MARTIN:    Your Honour, and if your Honour ‑ ‑ ‑

HIS HONOUR:   That is a very unpromising foundation for an application for special leave.

MR MARTIN:    I agree that, but there are two barriers I have to cross, your Honour, and in – in Jennings v Burgundy is that the chances are not insubstantial.  Justice Gaudron has lowered that thing, in my view, in my ‑ ‑ ‑

HIS HONOUR:   I do not think so.  All Justice Gaudron did was to say, “These are people who have lived in a home since 1979.  They have a special leave application on, coming up in September.  The matter is before me in July.  I think it is worth keeping them in their home between July and September in order to allow them to have the chance to argue the case before the Court”.

MR MARTIN:   Agreed.

HIS HONOUR:   And that is what her Honour ordered should happen.  But now the matter comes before me and you are effectively seeking further interlocutory orders in support of your application for special leave, which has not yet been listed, in order to stop people who are the registered proprietors from dealing with the property as they wish.

Now, that would cause – first of all, they are not before me.  Secondly, they are the registered proprietors by lawful process, that you do not now challenge.  Thirdly, as registered proprietors, they are entitled to deal with their property as they wish and you have to have a very good case, given that you accept that possession is now over, to say that you would be entitled to issue process in this Court to get that relief and especially in support of an application for special leave to appeal against a judgment where, on the face of things, your chances of getting special leave would seem to me to be quite small.

MR MARTIN:    Your Honour, this is what I would - you see I have – I failed for a stay in the Supreme Court, failed for a stay in the Federal Court, and this Court grants it in exceptional, and Justice Gaudron once did it and – okay?  The second point I like to make and – and in Justice Gaudron’s reason giving, that is she is ‑ ‑ ‑

HIS HONOUR:   Justice Gaudron did not give a separate judgment, did she?

MR MARTIN:    No, no.  No, no.  That it was impossible for her to say special leave will not be given.  It is an impossible business – it is impossible the use of the word “impossible” in relation to insignificance that I want to stress on.

HIS HONOUR:   Well, I do not, with respect, think that that is the correct principle.  You are seeking to disturb property rights that people have by law.  You have to show that the process that you want to issue in this Court is well founded in law and has some real prospect of success, otherwise a court will not disturb people in their property rights.  People are entitled, under our law, to use their property as they wish.

MR MARTIN:    I agree with that principle, your Honour, and the caveat – if you look at my caveat, the basis on which the caveat was being put, notice of which was given to the new proprietors, in DD, your Honour.  My appeal – my affidavit of 23 April 2001, annexure DD, annexure A in it.  If you see the two solid grounds in my view:  (a) I physically designed and build that house without any payment to this day from the registered proprietor or anyone else.  That is the second one.

HIS HONOUR:   Well, that may give you some equitable right or interests against the liquidator – I have no idea about that – but that is not what is involved.  You are asking a caveat that stops it being sold to third parties and that would be a burden on the title which at the moment belongs to Mr James and his colleagues.

MR MARTIN:    I know at the moment because of the delay in the issue and so the summons it has complicated the issue for your Honour.  I have – I am not – I cannot argue against it.  There is no submission I can make.  The matter was – the notice to all party was given on the 20th.  This is the key issue.  Notice to ‑ ‑ ‑

HIS HONOUR:   Is Mr James and his colleagues, are they resident in the property or are they people who have purchased it as an investment?

MR MARTIN:    I do not know, your Honour.  I do not know.  Your Honour, all parties concerned were given notice that this summons was going to be issued, right.  Now ‑ ‑ ‑

HIS HONOUR:   Did you give notice to Mr James?

MR MARTIN:    No, your Honour, because at that time I did not know that the registration was occurring.  I only knew the registration on 9 May.  Now, your Honour – your Honour has got a very serious problem because of the time delay, but the time delay – I had done nothing towards the time delay.  I have acted as expeditiously in every step of the way.  So under that circumstances, if your Honour could just – if I could beg your Honour to just focus on just allowing me to issue the summons and then decide whether the order that is sought in the summons is going to be granted or not, so all ‑ ‑ ‑

HIS HONOUR:   No, but I have to ask myself is it just and lawful that the summons which you have presented be issued?  Let us just analyse it.  The first paragraph says that:

The Registrar General of the Australian Capital Territory is to take no action regarding his notice dated the 10th of April 2001 to Anthony Gilbert Martin in relation to –

the caveat.  Now, as I understand it, that is now overtaken by events.  He has, in fact, taken action on that notice.

MR MARTIN:    Yes, your Honour, notwithstanding all my efforts, so – okay.

HIS HONOUR:   Yes, but that is no longer relevant.

MR MARTIN:    Yes.

HIS HONOUR:   The second is that you would wish to argue that the Court order:

the Registrar General . . . to forthwith restore caveat No 1201331 if it has been removed –

Well, it has been removed ‑ ‑ ‑

MR MARTIN:    Yes.

HIS HONOUR:   ‑ ‑ ‑ and the restoration of the caveat would be presumably in support of your argument that the land should not be transferred.

MR MARTIN:    Yes, your Honour.

HIS HONOUR:   But what interest do you have to say the land should not be transferred, given that you do not now contest the issue of possession?  You are contesting only transfer.

MR MARTIN:    Yes.  I have caveatable interests and if you look at the three orders, which your Honour has it in the affidavit in a cumbersome fashion, the three orders that Justice Miles, Einfeld and Kenny set aside is my possession has got priority over registration, no compensation – possession not denied before compensation is paid, and the third one is the winding up to be terminated.  Those are the three and they are crucial three orders.  The appeal was allowed and that is a ratio decidendi order, and all I am saying is that all the cards are stacked against me, your Honour, and I can see that.

HIS HONOUR:   They certainly are.

MR MARTIN:    They certainly are.

HIS HONOUR:   What about the third set of orders?  They are orders directed to Justice Crispin of the Australian Capital Territory that his orders be set aside.  Now, I would never make those orders in the original jurisdiction of this Court.  If this Court is to set aside orders of a single judge of the Supreme Court of the Australian Capital Territory, they have to come up in this Court in the usual appellate process.  They would not be set aside on a summons in the original jurisdiction of the Court.

MR MARTIN:    Yes, I stand corrected on that, your Honour, and I am – basically, your Honour ‑ ‑ ‑

HIS HONOUR:   So basic to the relief that you are seeking is order 2; is that correct?

MR MARTIN:    Order 2 but with amendment now.

HIS HONOUR:   What is the amendment?

MR MARTIN:    The amendment would be that the – I mean, this is in case my summons succeeds, your Honour.  The amendment would be the Registrar‑General be allowed – Anthony Gilbert Martin be allowed to place caveat over block 11 section 320 Kambah in the Australian Capital Territory and I think we have got the volume and folio.  If your Honour wants, I will give it.  If I look up, it is in the affidavits.  Right.  Now, that, in my view – and, I mean, all the parties – I mean, the summons is going to be issued to three parties – I mean, to four parties, and the newer one would be issued to the new registered proprietors, which I only learned on 9 May.  Now, that does not do anybody any injustice, in my view.

HIS HONOUR:   Well, it does do an injustice to the registered proprietors because (a) they are not here; (b) they are not named in the summons; and (c) their property interests are interfered in.

MR MARTIN:    But at the summons they would be able to put these things.

HIS HONOUR:   But they are not parties to it.

MR MARTIN:    Yes, but, your Honour, if – assuming that your Honour was to give me leave to issue this summons and if your Honour looked at the back of the page of the summons, who the parties are, there will be one additional party which I only learned about it on 9 May, who the registered are.  Now, they would also be served.  So if they have objection to it – in fact, they probably have, then the summons can be heard, that summons can be heard.  I mean, in – and all I am asking your Honour to do is to give me an opportunity, like your Honour developed in that Allesch v Maunz, this opportunity said, I need to put this caveat on, right, and if I had done – if I had since the 11 April, when notice was given, if I had exactly in Maunz Case, when he himself, he had a heart attack and could not appear.  I myself had the same heart attack and bypass during this – you will find out, you know.  Now, I am only asking your Honour since 11 April when I was served this notice from the Registrar‑General, I acted without a waste of one day.

HIS HONOUR:   What is the reason for the failure to file the application book in the special leave application?

MR MARTIN:    There is no reason, your Honour.  The application – the index was given to me on 2 or 3 May only and I have – I want a few other things included and I have returned it to the Deputy Registrar and I have told him that I am capable of doing the application book within a matter of two or three days.  Application book, if your Honour – like Justice Gaudron, if your Honour says that – and my submission is that this issue of the summons must be also a part of the application book.  So if your Honour could only focus on giving me leave to issue a summons, just one order, one order, that the ‑ ‑ ‑

HIS HONOUR:   It is only one order for you, but it has to be done in accordance with law, and you have already agreed that paragraph 1 and paragraph 3 are no longer relevant.  Paragraph 2 is the one where you are seeking the relief to order the Registrar‑General to permit you to file a caveat to protect your claimed interest in the subject.

MR MARTIN:    Because if it is not done, your Honour – I mean, we are lucky in this instance, even though the delay from the 23rd to now has happened and it has made the special leave nugatory, we are lucky because of two things.  One, notice was given to this party.  Secondly, they were the losing bidders against me, right.  So on two grounds we have got now, if that if forwarded on, then the whole essence of Justice Miles, Einfeld and Kenny’s ratio decidendi decision all becomes irrelevant, right, and this is – I mean, I am foregoing the first part of their decision about possession, because special leave was lost, but the second part of their decision - in composing that, there were two:  compensation, possession and no transfer, et cetera, et cetera.

Now, the ones that I have lost, and lost badly, and your Honour’s view would be the one that would be shared by the majority of people and maybe even the justice, but I am just putting to your Honour that you should give me – I have got a real hope in the principle yourself enunciated in that case and do not ‑ ‑ ‑

HIS HONOUR:   I would not put too much store on that.  I think mine was a minority view in the case.

MR MARTIN:    No, your Honour, all of you agreed on it, but your reasoning – I was attracted to your reasoning, of its succinctness ‑ ‑ ‑

HIS HONOUR:   Well, naturally, I am attracted to my reasoning too, but it may be that the other Justices may not be.  You see, the basic problem – and you have to focus on this – is that the summons you are seeking is in support of an application for special leave to appeal from the judgment of a Full Court of the Federal Court on 9 February 2001 ‑ ‑ ‑

MR MARTIN:    That is right.

HIS HONOUR:   ‑ ‑ ‑ and that is encompassed in three pages and it is dealt with peremptorily on the basis that in the opinion of the judges concerned your application before them could be characterised as frivolous or vexatious and without merit.

So that if that is the case, the question that is presented is whether the summons, as reduced to the second paragraph, which is the only one you are now pressing, is really appropriate, given the very strong opinion that the Federal Court has expressed and the fact that your proceeding in the Federal Court was misconceived, being an appeal as of right instead of an application for leave to appeal, and that, therefore, you have to get through three gateways:  one, you have to reverse the Federal Court; two, you have to, in effect, get leave from this Court which you did not get in the Federal Court; and, thirdly, then you have to have a disturbance of the rights of property owners, being Mr James and his colleagues, which one would not normally disturb without a very good basis.

I have to say to you, just looking at the reasons for judgment of the Full Court of the Federal Court, that basis seems to be missing and it is really misleading you and raising false hopes, as in a sense Justice Gaudron’s order did, to lead you into belief that you should spend more of your time and more of your money on this exercise, rather than, perhaps, seeking some original equitable relief against the directors or the present owners of the property in respect of what you say are your contributions to the building of the house and the repairs and the other maintenance of the house over the years that you occupied it.

MR MARTIN:    Your Honour, with all the greatest respect, the option your Honour giving, the last option, is a – it is an absolute nothing option.  The option I am asking is, yes, I have got those hurdles to cross, but those hurdles I have argued it in all of the hearings.  In all of the hearings, not one of all these matters has there been a proper hearing heard, mainly even now – your Honour, I am only saying this is only a leave application, not the summons application.

HIS HONOUR:   I realise that.

MR MARTIN:    Not a summons application.

HIS HONOUR:   No, I realise that.

MR MARTIN:    Right, and the summons – all that your Honour is raising is issues that would be raised in the summons.  Now, I have – if your Honour could perhaps reserve your judgment or anything and read in the specific issue of the comments that Justice Drummond, Dowsett and Gyles made.

Now, I know it is a sharp knife and it is probably the sharpest knife and I have addressed it extremely carefully and if given the opportunity in an appeal process in the High Court I can prove that they are unfounded, so has all the – I mean, abuse of process has been used more than three or four more times in my case.  Not one of them stacks up with the binding decision of this Court and in a summary – submissions like this I am not able to justify it and because the weight of opinion is against me, but those judicial opinion is not supported by law or evidence.

HIS HONOUR:   Yes.  Now, I want to ask the Registrar two matters.  The first is whether or not notice was given – I think it was – to the respondents to the proceeding.

THE DEPUTY REGISTRAR:   Yes, your Honour.

HIS HONOUR:   And, secondly, was it also given to the solicitors, the second respondents?  So they were aware of the proceeding before the Court today.  And, thirdly, if the application book could be got together, when would, in the ordinary course, the application for special leave be heard by the Court for the application in respect of the judgment of the Full Federal Court of 6 February 2001?

THE DEPUTY REGISTRAR:    It is unlikely that it would be heard before next year, given the current list.

HIS HONOUR:   There is a Canberra list this week.  When is the next Canberra list?

THE DEPUTY REGISTRAR:    There are no dates set down for Canberra matters.  The list has only been determined until the end of July.  So no further dates have been specified for Canberra matters.

HIS HONOUR:   Well, I will retire for a few minutes.  Do you have anything else to say, Mr Martin?  Do you have anything to say in relation to those matters that I just asked the Deputy Registrar?

MR MARTIN:    Yes.  I am happy to do it at the shortest notice.  I have actually prepared them ‑ ‑ ‑

HIS HONOUR:   That is true, but it is said that in the normal course your application for special leave would not come on until the year 2002, so that what you are contemplating is that some form of relief would be granted under the Constitution, I assume, that would impinge on the rights of the present owners, Mr James and so on, until next year. That would be a very considerable burden.

MR MARTIN:    But we could – we may not have to have it in a Canberra sitting, your Honour.  It could be Sydney sitting.  It would not ‑ ‑ ‑

HIS HONOUR:   The firm of solicitors are resident in Canberra.  The solicitors you have named are partners in the firm in Canberra, are they?

MR MARTIN:    They are international, your Honour.

HIS HONOUR:   Yes, but the partners you have named are themselves resident in Canberra?

MR MARTIN:    I would say are Canberra based, but we have heard – the last special leave was heard in Sydney, your Honour.

HIS HONOUR:   Was it?  I see.

MR MARTIN:    Okay.  So it is not ‑ ‑ ‑

HIS HONOUR:   All right.  Well, I will adjourn probably for about 10 minutes and I will come back.

MR MARTIN:    Thank you, and my apologies for impinging on your Honour’s patience.

HIS HONOUR:   No, no.  You ultimately made things relatively clear, as clear as litigation that has lasted as long as this can be.

MR MARTIN:    Clear as I am capable of, your Honour.

HIS HONOUR:   Yes.  You have nothing further to say?

MR MARTIN:    No, your Honour.  Thank you.

HIS HONOUR:   Yes, very well.  I will adjourn for about 10 minutes.  Did you wish to say something, Mrs Martin?

MRS MARTIN:   Would you mind, your Honour?  I know this is most unusual but it is something that perplexes me.  I cannot understand how the leave to appeal was granted by Justices Miles, Einfeld and Kenny and ‑ ‑ ‑

HIS HONOUR:   Well, that was a separate proceeding.  That was an entirely separate proceeding than the proceeding now and that was before possession changed hands.

MRS MARTIN:   But in the appeal were certain things that my husband appealed against and they were to do with the winding up of the company and so on and so on and possession and so on.  I would have thought if the appeal was allowed, then it would follow that the things that had been asked for would also follow, and I cannot ‑ ‑ ‑

HIS HONOUR:   Well, that may be so.  The difficulty, as I explained to your husband, was that on the face of the short judgment of the Full Court

of the Federal Court I would estimate that the chances of special leave being granted are very small, and what I have to weigh up is whether or not, as Justice Gaudron said when the proceedings were before her prior to the last special leave hearing, that one should grant the right to bring the summons, to seek the power, to order the caveat, in order to defend the utility of the proceedings in the Court.

If one comes to the view that those proceedings in the Court, being the new special leave hearing, are very unlikely to be fruitful, you have to weigh the utility of protecting the proceedings in the Court against the inconvenience and burden on people’s property rights which ought not, without a very good reason, to be disturbed.  So I will just have to consider that and I will come back in about 10 minutes.

MRS MARTIN:   Thank you.

MR MARTIN:    Thank you, your Honour.

HIS HONOUR:   The Court will adjourn.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.48 AM:

HIS HONOUR:   For many years Mr and Mrs Anthony Martin have been in dispute with the liquidator of Individual Homes Pty Limited (in liquidation).  Mr and Mrs Martin (“the first and second‑named applicants”) wish to issue a summons out of this Court in which they have named that company in liquidation as the first respondent.  They are not legally represented.  In the summons they have also named the partners of a firm of solicitors, who have acted for the first respondent, as the second respondent.  This is a course that was criticised in the court below.

The summons propounded by the applicants

In the summons which the applicants presented to the Registrar for filing, they sought the following orders from this Court:

“1.      The Registrar of the Australian Capital Territory is to take no

action regarding his notice dated the 10th of April 2001 to Anthony Gilbert Martin in relation to caveat No 1201331 until further court orders.

2.        In the alternative to Order 1 above, the Registrar General of

the Australian Capital Territory is to forthwith restore caveat No 1201331 if it has been removed from the land known as block 11 section 320 Kambah in the Australian Capital Territory.

3.        The orders of the 20th of April 2001 in SC 150 of 1993 &

SC 590 of 1994 of Justice Crispin of the Supreme Court of the Australian Capital Territory be set aside and the subject matter of the said notices of motion dated the 17th of April 2001 be heard by the ACT Supreme Court without any orders for security for cost from Anthony Gilbert Martin.”

Direction under O58 r4(3) HCR and application for leave

On 2 May 2001 a Justice of this Court (Callinan J), acting pursuant to Order 58 rule 4(3) of the High Court Rules (HCR), directed that the Registrar refuse to issue the proposed summons without the leave of a Justice first had and obtained.

Being notified of that order, on 14 May 2001, the first‑named applicant applied for leave to issue the summons.  Normally, such applications are dealt with by another Justice on the papers.  However, because the ultimate subject matter of the dispute between the company in liquidation and the applicants concerned a home which the applicants had built, and in which they had lived for many years, and because, in his affidavit, the first‑named applicant had made a number of complaints about his treatment (including having to pay a filing fee of $1,052 for the filing of the summons and supporting documents, which were not then returned before the Court), I directed that the application for leave be returned before me in public chambers.  I also directed that the liquidator and the solicitors named should be notified, in case they wished to be heard on the return of the proceedings.  I am informed by the Deputy Registrar that the respondents were duly notified.  They have not chosen to attend the Court today, as is their right.  Accordingly, the proceedings have been heard ex parte.

The decision of the first Full Federal Court

I disregard various irrelevant matters which were stated in the first‑named applicant’s affidavits.  The general history of the dispute between the parties may be conveniently found in two places.  The first is in the joint reasons of Einfeld and Kenny JJ in Martin v Individual Homes Pty Limited (in liquidation) 27 July 2000 FCA unreported (with which reasons Miles J, sitting as a judge of the Federal Court, agreed).  The second source is found in a brief summary of the tortuous course of the litigation contained in paragraph 8 of the respondent’s summary of argument in special leave application C3 of 2001, filed in other proceedings to which I will shortly refer.

After the decision of the Full Court of the Federal Court of 27 July 2000 (“the first Full Court”), the applicants sought a stay of proceedings in this Court pending an application for special leave to appeal from that decision.  The application for a stay came before Gaudron J on 20 July 2000.  It was resumed on 31 July 2000.  On the last‑mentioned day her Honour granted a stay in order to defend the utility of the special leave application which was then pending.  She made no substantive observations about the merits of the proceedings.  However, she did allow herself to say:

“It is clear beyond argument that this litigation is a mess, absolutely clear beyond argument.”

I have some sympathy for her Honour’s observations.  They might also be made in relation to the proceedings before me today.  However, the first‑named applicant, Mr Martin, persisted with a careful and lengthy explanation of the nature of the proceedings that he wishes to bring.  Ultimately, their character and purpose was made clear.

The High Court earlier refuses special leave

Following the order made by Gaudron J, the special leave application in respect of the first Full Court’s decision of 27 July 2000 came before a Full Court of this Court on 12 September 2000.  The Court was then constituted by McHugh, Hayne and Callinan JJ.  As the first‑named applicant observed, in opening his oral argument in support of his then application, it was the sixth time that the applicants had approached this Court for special leave in connection with their litigation.  On each earlier occasion the applicants had failed.  The sixth occasion was to prove no more successful.

This Court, like the Full Court of the Federal Court, concluded that, at its foundation, there was no substance in the applicants’ case as then presented either in law or on the factual merits.  So far as the latter were concerned, the joint reasons of the first Full Court had said:

“No complex issue of law is required to be determined.  Ultimately this matter involves the taking of possession of property by a registered proprietor from tenants at will whose tenancy has been determined.”

The company in liquidation was the registered proprietor of the property at Kambah referred to in the applicants’ proposed summons.  The applicants had lived in the house on the property since 1979.  The first‑named applicant was at one stage an officer of the company before it went into liquidation.  The applicants had sought to protect their alleged interests in possession of the property by the lodgement of caveats and by the bringing of various claims to the courts.  However, by refusing special leave to appeal, as this Court did on 12 September 2000, it confirmed the judgment of the Full Federal Court of 27 July 2000.  This Court held that the unanimous decision of the first Full Court “was not attended by any doubt”.

Eviction from the property and commencement of new proceedings

On the next day, 13 September 2000, by action taken on behalf of the company in liquidation, the applicants were evicted from the property.  The first‑named applicant acknowledged before me that, so far as possession was concerned, the fight was over.  As he put it, he had rolled his dice and he had lost.  However, the applicants made one further bid to protect the interest which they claim to have had in the Kambah property.  They attended an auction for the sale of the property which was held on 7 April 2001.  They made a bid for the property; but ultimately they were not successful.

At the auction, the property was sold by the first respondent to new registered proprietors, namely, Mr George James and others.  According to the applicants, prior to the transfer, Mr James and the other new proprietors were on notice of the applicants’ claim to an interest in the property.  The applicants’ case in the courts has, therefore, shifted from a claim to prevent the loss of possession to one to prevent the transfer of title to a purchaser who has no notice of their assertion of an interest in the property.

The decision of the second Full Federal Court

The fresh application was determined by Miles CJ in the Supreme Court of the Australian Capital Territory adversely to the applicants.  However, the applicants then again appealed, purportedly as of right, to the Full Court of the Federal Court of Australia (“the second Full Court”).  That court heard their purported appeal on 9 February 2001.  On that occasion the second Full Court comprised Drummond, Dowsett and Gyles JJ.  Their Honours dismissed the “appeal”.  In effect, as I read their reasons, the Full Court held that the “appeal” was incompetent and that it required leave to appeal.  However, they concluded that leave should not be granted as the appeal could not succeed.

Giving the leading judgment on behalf of the second Full Court, Drummond J said, in part, that the appeal could be characterised as frivolous or vexatious.  The first‑named applicant complains that that issue was not before the second Full Court.  However, I do not understand that Drummond J purported to dispose of the “appeal” on that ground.  Rather, he and the second Full Court did so upon the basis that no foundation was established for disturbing the decision of Miles CJ.  It was in his reasons in support of the decision of the second Full Court that Gyles J observed that steps had been taken to add, as parties to the appeal, the solicitors for the first respondent.  They were added as the second respondent.  Gyles J was very critical of that step.  I am not called upon today to consider the correctness of his Honour’s observations about which the first‑named applicant also complained vehemently.

Nothing daunted, the applicants have now filed a further, seventh, application for special leave to appeal to this Court against the judgment of the second Full Court.  The written arguments of the parties have been filed in relation to that application.  I have read those arguments.  Without presuming to foreclose the applicants’ rights in this Court, it is my opinion (as I expressed it during argument to the first-named applicant) that the applicants’ chances of securing special leave to appeal from the judgment of the second Full Court appear to be very small indeed.

The issue and the proposed reformulated summons

It is important for me to remind myself that I am not now determining the fate of this seventh special leave application.  Nor, indeed, am I determining what the fate of the summons would be, were leave to be granted by me to the applicant to file the summons.  In argument, the first‑named applicant, who spoke with the knowledge and in the presence of the second‑named applicant, his wife, narrowed the relief that he would actually seek on the summons if he were permitted to issue it, to the second stated ground.  The second ground, I remind myself, related to an order to the Registrar‑General of the Australian Capital Territory to restore a caveat which had been removed from the title in relation to the land on which the former home of the applicants in Kambah was situated.

In effect, the first‑named applicant said that, if he were permitted to file the summons, he would submit to the directions of this Court to reformulate this second ground.  He would also re‑express the ground in terms to seek an order that the Registrar‑General be permitted to accept an application from him for a caveat in respect of the subject property.

The Deputy Registrar has informed me that the special leave hearing in respect of the second Full Court judgment would not be heard, in the normal course of events, until 2002.  Even if the special leave application were granted some expedition (which would be difficult to justify) and even if it were returned in Sydney rather than Canberra, it appears unlikely that it would be heard for several months at the earliest.  The application books have not yet been completed.  That step would be necessary before a hearing date could be assigned.

Confining O58 r4(3) to manifestly clear cases

To give meaning to the requirement for leave, it is necessary to consider the words used in Order 58 rule 4(3) HCR.  The rule appears in an Order concerned with the Registries of this Court.  It is in such registries that the documents initiating proceedings are presented for filing.  The primary purpose of rule 4(3) is to confer a power on a Registrar.  That power is to seek a “direction of a Justice”.  In relation to particular process presented for filing, the initiating event is that a Registrar has formed a specified opinion.  This is that “on its face” the document (“writ, process or commission”) appears to be “a frivolous or vexatious proceeding”.  Elsewhere in the Rules power is conferred on the Court (and it exists anyway in the Court’s inherent or implied powers) to terminate frivolous or vexatious proceedings (see Order 26 rule 2(2); Order 26 rule 18(1) HCR) cf. Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720. Accordingly, the exercise of the power by a Justice in enlivened by an exercise of power by the Registrar. As an officer of the Court it will be expected that, acting Flawfully and reasonably, no such “direction” would be sought without good cause. However, the action of the Registrar is not conclusive. It occasions the possibility (not necessity) of a direction by a Justice and, if leave is then sought, a decision on the point by a Justice (usually a different one) who hears the application for leave.

In the context, the focus of the attention of the Justice is obviously that of the propounded frivolousness or vexatiousness of the process.  This means that, at both stages (the giving of the direction and the grant of leave) the Justice exercising the applicable powers must consider whether the process is frivolous or vexatious.  It will be so if the process cannot be supported as arguable having regard to the state of law, is futile because it is bound to fail on the facts pleaded or where it is a wrongful or repeated invocation of the Court’s process that is sought for extraneous purposes which would “inflict unnecessary injustice on the opposite party”:  Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720; Gunn v Hudson’s Bay Co (1915) 25 DLR 173; Bock v Bock [1955] 1 WLR 843 at 846.

With this analysis in mind I must consider the utility and justice of permitting the first‑named applicant to issue the summons, confined as now proposed, in order to permit argument to proceed on the entry of a caveat in respect of the subject property. Tending in favour of that course are two principal considerations. The first is that the purpose of Order 58 rule 4(3) of the High Court Rules is not needlessly or unreasonably to bar access of a party to the process of the Court. Filing process is a necessary prerequisite to enlivening the jurisdiction and powers of the Court as contemplated by the Constitution and applicable federal law. Only clearly meritless or futile process should be the subject of directions under that sub‑rule . Secondly, this Court will always defend the utility of viable proceedings in the Court. Its power to do derives from the Constitution itself: Tait v The Queen (1962) 108 CLR 620 at 623. The applicants have initiated proceedings in the Court by way of their seventh special leave application. That is the foundation upon which they base their right to argue for an order to protect the utility of their proceedings.

Reasons for refusing leave

Against taking the course of permitting the summons to be received are the following considerations.  First, the first‑named applicant conceded before me that no interest in possession in the property is now asserted.  The applicants are long since out of possession.  Accordingly, any legal or equitable claims they may have in respect of the improvements which they made to the house on the property in Kambah would appear to be such that they must be proceeded for separately, if at all, perhaps against the first respondent, perhaps against others.

Secondly, there is an extremely long history to this litigation.  For the reasons that I have stated, there appear to be very small prospects of success to the grant of special leave given that history, the premise upon which this Court’s last decision stands, the reasons of the second Full Court of the Federal Court and the fact that the proceedings in that court were themselves proceedings that required leave of that court.

Thirdly, if the summons were issued and if the caveat were sought, it would be necessary to give notice to those who would be principally affected, namely, Mr George James and his colleagues (the present registered proprietors).  If an order were made permitting or requiring a caveat to be entered (assuming that to be possible and lawful) any such order would impose, possibly for six months or more, serious burdens on the title and rights of the present registered proprietors.  Such an order would only be made for very good reason and to protect arguable rights which might otherwise be lost or irretrievably diminished.

Conclusions:  application refused

To grant leave to the applicants to issue the summons could, therefore, only be justified if, on balance, such a grant of leave would have utility and be just and lawful.  Despite the endeavours of the applicants, I have not been persuaded that such relief would have utility in the circumstances as I have explained them or that the other requirements would be met.  Accordingly, I dismiss the application.

Necessarily, in doing so, I do not pre‑judge the rights of the applicants to have special leave on the seventh application to this Court.  That question will be determined by the Court which hears that application.  Nor do I make any adverse conclusion about any relief to which the applicants may be entitled outside the proceedings on the application for special leave before this Court in relation to the interests which the applicants claim to have in the property in which they lived after 1979 but from which they have now been evicted.

Order

The order of the Court is the application is dismissed.

The Court will now adjourn.

AT 12.09 PM THE MATTER WAS CONCLUDED