Merrin & Anor v Cairns Port Authority

[2003] HCATrans 352

[2003] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B65 of 2002

B e t w e e n -

THOMAS WILLIAM MERRIN and ANNETTE ELIZABETH MERRIN

Applicants

and

CAIRNS PORT AUTHORITY

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 12.21 PM

Copyright in the High Court of Australia

MR T.W. MERRIN appeared in person.

MRS A.E. MERRIN appeared in person. 

MR K.J. McGHEE:   May it please the Court, I appear for the respondent.  (instructed by MacDonnells Solicitors) 

KIRBY J:   Yes, Mr Merrin, you are appearing for yourself, are you?

MR MERRIN:   That is right, yes.

KIRBY J:   Yes, thank you very much.  Are you here with Annette Elizabeth Merrin?

MR MERRIN:   Yes.

KIRBY J:   And have you agreed between you that you will speak on behalf of both of you, or are you going to divide it up?

MR MERRIN:   I have a few questions.  We are independent people with different ideas and views.

KIRBY J:   You might be independent people, but it is one case and you only get the one amount of time, so you have to decide between yourselves.  If you want to split it up, that will be all right, but otherwise we will listen to one of you.

MR MERRIN:   We have an answer to that, that is all I was asked.  We will split it up.

KIRBY J:   You will split it up.  All right, as long as you understand you only have 20 minutes between you.

MR MERRIN:   Yes.

KIRBY J:   Very well.  Mr McGhee, you are appearing for the Authority, is that correct? 

MR McGHEE:   May it please the Court.

KIRBY J:   Yes, thank you, we can see you very clearly down here.

MR McGHEE:   I am obliged.

KIRBY J:   Yes, Mr Merrin.

MR MERRIN:   The first thing that I would like to clear up, as I have probably learned a little about law in the last six years, I would like to know what institutes a Full Court, just for my own benefit and the benefit of my wife. We expected that probably Justice Gleeson would be here and two Justices, and that is under the Constitution, which I have read very thoroughly.

KIRBY J:   Yes, we are constituted, as is usual, to hear a special leave application.  You have been sitting here in Court, and you have seen the way the Court is constituted, and that is done under the Judiciary Act.  So you just should proceed.

MR MERRIN:   That is what I said, two Justices.

KIRBY J:   Concentrate on the substantive matters.  That would be more helpful to the Court and to yourselves.

MR MERRIN:   Very well, seeing that Justice Gleeson is not here and there is just two Justices ‑ ‑ ‑

KIRBY J:   The Chief Justice is sitting in Sydney, so he cannot be here as well.

MR MERRIN:   Our submission is very brief.  The background and submissions are very brief, so my wife will start with the background.  She is more familiar than I am with it, because she put it all together with my help, but she was the typist and computer expert on it.

KIRBY J:   Yes, Mrs Merrin.

MRS MERRIN:   Just briefly, further to the matters that have been in our summary of argument, the validity of a certain document has come to our attention, which is in the application book.  Prior to going to that, I would like to briefly outline the background.

The problem with the respondent, the Cairns Port Authority, a politically‑motivated government identity, continued even after their scathing loss at our appeal, mostly for their conduct, when the order was handed down on 15 May 2001 in Brisbane by McPherson JA.  Costs at that time, as you are aware, were ordered in our favour for both the appeal and the District Court trial costs.  An offer was made by the respondent personally to us for the costs of the appeal, and I will draw your attention to page 38 of the book – that is the “AUTHORITIES AND RELEVANT MATERIAL” book, not the application book, page 38.

KIRBY J:   Yes.

MRS MERRIN:   Now, that was the original letter that was given to us in offer.  As you can see, on the last paragraph of that letter, they informed us that they would be paying the amount into court if we accepted.  Simply because of that condition, and we informed them that that is why we did not accept this offer, it went to assessment in the Supreme Court Registry before Bob Houghton.  No payment was received at this time for the appeal costs, although it was ordered for us.

When we were due to go to assessment a couple of months later for the District Court trial costs in Cairns before Mr Bingham, another offer was received from the respondent, the Cairns Port Authority.  This time there was no condition attached to that letter, as you will see on the next page, page 39.

KIRBY J:   Yes.

MRS MERRIN:   We took this offer to be the offer under rule 721 of the Uniform Civil Procedure Rules, where they simply made an offer for us to accept, no conditions attached.  Once we accepted this offer, which was handed personally to them by myself and my husband, as you will see on page 40, that letter that we gave them with, written on the bottom, “will accept this amount payable immediately”.  The reason that was written is because we were still awaiting our costs from the appeal costs which had been ordered two months prior.  However, the respondent, the Cairns Port Authority, seized on this “payable immediately” and used it as a means of taking it to court before a Supreme Court justice, Justice Jones.

The actual fact of the matter is when we accepted it they told us, we will now pay it into court.  We said, we do not accept it with offers, there were no offers told to us by you and is not in writing.  They said, well, we will go back for an assessment before Mr Bingham.  We agreed, on the condition that they did not tell us that we had to pay if the amount came out less.  As is usual in rule 722 of the Uniform Civil Procedure Rules, if you do not accept an offer and the amount comes out less, whoever did not accept the offer has to pay.  Because we accepted the amount, we accepted the offer in writing, the verbal condition was put on at a later stage, we considered that invalidated the offer made.

Anyway, the respondent refused to pay what they had offered, proposed their verbal condition and that was when it sort of really got messy, to put it delicately.  Mr Bingham, the Supreme Court Registrar in Cairns, went outside his capacity at this stage as Registrar and become a litigant in his own court in the matter of John Ernest Bingham v Thomas and Annette Merrin and Cairns Port Authority, No 119 of 2000, held before Justice Jones.  That is on page 76 of the application book.  The Cairns Port Authority and ourselves became the respondents in this action.  How a Supreme Court Registrar can become a litigant in his own court was a matter of some problem for us.  In order for the Cairns Port Authority, a political identity, to win and allow our accepted offer to be paid into court, an order had to be forthcoming on which Justice Jones could find in their favour.

This case was commenced by an application, one that we would normally have to have paid for.  It was not within another hearing, it was a newly commenced hearing, and Mr Bingham had to sign with that a supporting affidavit.  On page 77 of the application book, it is stated there by Justice Jones, referring to his Honour Judge Noud:

in accordance with an extract from the transcript, which is exhibit D to the affidavit of John Ernest Bingham sworn on 13 November 2001, made the following order:

That order was never made.  There has never been an order made.  I have spoken to Chambers in the District Court, I have rung them personally and spoken to Helen.  She has informed me that no order was made by Judge Noud on that day. 

When speaking with Elisa Harris, the Deputy Registrar here, she asked for an order, the order that was referred to, and I said, “No order was made”.  If I can actually direct your attention now to that exhibit D, page 75 of the application book, it is a structured piece of paper.  In other words, it has been cut and pasted or tampered with, a piece of transcript which Justice Jones said had not yet been made.  We had not actually received it, but it had been made and we had one with us. 

It had been made.  Someone has cut it out, pasted it over the top of whatever had been previously written on this particular order sheet, and signed by an associate.  To the sides, you can see a “99” on the right hand side.  On the left hand side, where the paper cuts in slightly, there is also writing and above the top section, on the left hand, there is also obviously covered writing.

Our investigations attempting to find the original one of these have been fruitless.  No one will talk to us.  The associate who signed this, and who evidently wrote what is underneath it and what is on top, is no longer in Judge Noud’s employ.  To the best of our knowledge, Judge Noud does not know about the existence of this document; it was out of his hands after it had been made.

KIRBY J:   Yes, but Mrs Merrin, essentially you are seeking to come up to this Court challenging two orders of the Court of Appeal on questions of costs.  It is very rare for this Court to become involved in questions of costs, because they are ancillary to the main point of litigation.

MRS MERRIN:   I am well aware of that, but the fact is, it was this order that actually caused – this non‑existent order – that actually caused the Cairns Port Authority to be able to put the money that they were supposed to pay to us into court, or else we went for assessment.  But as far as ‑ ‑ ‑

KIRBY J:   Yes, but there was a dispute between you and your former solicitors and they claim, I think, a lien over the amount of the payment.

MRS MERRIN:   The former solicitor acted on a “No win, no fee” basis.  That was stated in ‑ ‑ ‑

KIRBY J:   You wanted to get the costs all for yourselves, but I think the purpose of the order was that they should go to the solicitors.

MRS MERRIN:   No, we wanted – actually, Legal Aid paid for all the costs, as far as the costs of the trial went.  That is the costs – Civil Legal Aid, which is ‑ ‑ ‑

KIRBY J:   So the matter before us is really a side‑wind dispute between you and your former solicitors?

MRS MERRIN:   No, it is not.  We are not really involved with Mr Royds at this stage.  We are not even going to get into Mr Royds; we do not even want to bring him up.  We are saying the Cairns Port Authority owed us money.  They made us an offer, then they went against their offer, and said, “Now, we are going to pay it into court”.  If they had put on the bottom of that letter saying ‑ ‑ ‑

KIRBY J:   You took this dispute back to the Court of Appeal, who exceptionally listened to it all for a second time.  They then made further declaration and orders, and now you want to come up to the High Court of Australia and take up our time on what is really a very minor dispute between you about costs.

MRS MERRIN:   We took it originally to a judicial review.  It was an illegal hearing.  You cannot have a registrar as a litigant in his own court, so he went outside his jurisdiction.  Justice Fryberg claims he could not hear it, because it was in his jurisdiction, but it was not; it was an illegal hearing.  When we attempted to appeal that hearing before Justice Fryberg and we sought a transcript of proceedings, none had been made.  This was in a Supreme Court hearing and no transcript had been made, even though the girls were sitting at the counter.  We wrote directly to the Attorney‑Generals, both State and Commonwealth, to inform them ‑ ‑ ‑

KIRBY J:   I realise that, but that was before the matter went to the Court of Appeal.

MRS MERRIN:   This is all before the matter went ‑ ‑ ‑

KIRBY J:   Exactly.  It then went to the Court of Appeal.  The Court of Appeal took up a lot of time to try and sort it all out.  They made certain orders.  You then were still in dispute and you went back to the Court of Appeal for a second time, and, exceptionally, they reopened the matter to make further directions and orders in relation to the matter that was said to be unclear in their earlier orders.

MRS MERRIN:   The only time – we went to appeal the District Court case.  That was the first appeal.  The only other time we went was simply to get clarification of the orders.

KIRBY J:   You applied to the Court of Appeal on 25 March 2002 for directions.

MRS MERRIN:   Yes, that was for the clarification of orders, which is what they actually did.

KIRBY J:   They ordered them on 9 August 2002.

MRS MERRIN:   Yes, and they clarified their orders, yet they claim not to have clarified our orders, and yet they did.  That is what we are trying to say.  They did clarify it.  That was – I had assumed you had read the argument on that section and thus I was not going over and repeating it for yourselves, but I will, if you require me to.

KIRBY J:   No, you proceed.

MRS MERRIN:   It is clearly stated that the justices did actually clarify their orders, and yet we have been told we lost the case and had to pay costs, when this is not the case at all.  We sought to have taxation against the Cairns Port Authority, because they had originally ordered for trial costs only, not solicitor/client costs.  We do not owe a solicitor any money for there to be any – there is no trial.  The trial has not been yet.  We have to win the trial.

HAYNE J:   Yes, I understand that, but the solicitor claims that he is entitled to some of the money which Cairns Port Authority owe you for costs.  That is right, is it not?

MRS MERRIN:   But he signed ‑ ‑ ‑

HAYNE J:   Just a moment.  The solicitor claims?

MRS MERRIN:   He can claim, yes; he claims.

HAYNE J:   Yes, he claims it and that claim has not yet been decided, has it?

MRS MERRIN:   It cannot be decided until the retrial, until we have the retrial.  But in the – and if we do not win it, he should not get anything, because it is a “No win, no fee” – and the Legal Aid had paid all costs ‑ Civil Law Legal Aid Scheme; I will clarify that.  It is not actually ‑ it is run by the Public Trustee.  So we did actually win the case and yet we found we had to pay, as is with – and I think I have referred to the judicial review that we had before Justice Fryberg in Kemper Reinsurance v Minister of Finance, where:

An application for leave to apply for judicial review is different in character from an application for leave to appeal –

which is what we tried to do against Justice Jones, where he held an illegal case. 

We cannot find any justice as far as this goes in Queensland and even the Principal Registrar of Brisbane, Ken Toogood, said that, from what he could see, it was – our only avenue was to come to the High Court.  So here we are.  You have to agree with me, they did clarify their orders in that last case.

KIRBY J:   Have you finished what you wish to say, Mrs Merrin?

MRS MERRIN:   No, I think that is about my time.

KIRBY J:   I think your husband wants to add something himself.

MRS MERRIN:   Yes, he does.  I will sit down.

MR MERRIN:   This has become a very, very complicated case and it is of very grave concern to us, and the general public of Queensland, because ‑ ‑ ‑

KIRBY J:   I hardly think the general public of Queensland will be very interested in a dispute between a solicitor and ‑ ‑ ‑

MR MERRIN:   I think they will be.  If we go to page 41, we find Romeo v Conservation Commission.  This is where this starts originally, where Judge Bradley in Cairns had the original case.

KIRBY J:   You won that appeal in the Court of Appeal.

MR MERRIN:   I realise that, but we won it on a lot of grounds.

KIRBY J:   You got the orders for costs.

MR MERRIN:   But the thing is that this judge had constructed a High Court Judge’s quote.  If I might say, everyone, even Justice McPherson, can understand why I think there is a conspiracy going on, and there is a conspiracy going on.  It started right back then.

KIRBY J:   But that is not relevant to the issue that is before us.

MR MERRIN:   And we got orders that have been falsified, which is fraud, by someone, the registrar or someone else – I think the registrar or Royds.  Now, there is a big problem here and ‑ ‑ ‑

KIRBY J:   They are not here to defend themselves.  It is a bit unfair for you to be making these claims against them.

MR MERRIN:   Maybe it is, but my investigation is very thorough.  But the point I wanted to make – and I do not have to make many points – is that a general public inquiry should be ordered, or we want it to be ordered, by the High Court of Australia.

KIRBY J:   We have no power to make those orders.

MR MERRIN: I am afraid, under the preamble of the Constitution, the general public of Australia – that is six States and two Territories ‑ ‑ ‑

KIRBY J:   You say the general public of Australia is concerned about your dispute over your costs?

MR MERRIN:    ‑ ‑ ‑ are the government.  The Queen renounced the citizens of Australia in 1986, when she came to Australia and signed the Australia Act without it going to a referendum in each State in Australia.

KIRBY J:   Her Majesty was advised by the government.

MR MERRIN:   So it leaves the public as the government of Australia, but it can be done either way.  If people think the Queen is still Queen of

Australia, it can be done by a royal inquiry or it can be done – but the proper and sensible, commonsense way is a general public inquiry, and ‑ ‑ ‑

KIRBY J:   This is not relevant to your application.

MR MERRIN:    ‑ ‑ ‑ the Federal Police investigate all these people, because there are five judges involved, there is a registrar involved, there are people involved everywhere.  Now, I have read your article in the newspaper about biased judges and lazy judges and sleepy judges and so forth and so on.

KIRBY J:   Well, we are not biased, lazy or sleepy.

MR MERRIN:   And corrupt judges too.  I have read all that, yes, quite interesting actually – very apt, too, because it just proves that we are not all perfect and there are problems, particularly in the justice system.  Particularly – well, I am from Queensland, so Queensland there is a lot of problems.

KIRBY J:   This is not relevant to your application.

MR MERRIN:   I do not know anything about other States.  Our case is very important to the general public at large.

KIRBY J:   Thank you very much.

MR MERRIN:   The implications are endless.  Mr McPherson says if there is an inquiry ‑ ‑ ‑

KIRBY J:   Your time is up, Mr Merrin.

MR MERRIN:   If there is an inquiry, it will go on to the next century.

KIRBY J:   Your time is up.  The Court does not need your assistance, Mr McGhee.

This application seeks to challenge a decision concerned with a costs order.  Costs are normally discretionary determinations.  For that and other reasons, they rarely attract a grant of special leave from this Court.  The applicants, who appear in person, succeeded in the Court of Appeal of the Supreme Court of Queensland on 15 May 2001.  They secured an order in their favour in respect of the appeal against the judgment in the District Court of Queensland.  A new trial was ordered.  The applicants received orders for costs.

A question then arose as to the meaning and effect of the Court of Appeal’s orders in respect of costs.  That question was considered by the Court of Appeal, from whom the applicants sought further directions.  On 9 August 2002 the Court of Appeal gave directions and made further orders.  The applicants seek to appeal from orders 2 and 3 of the orders then made.

We have examined those orders.  Despite the arguments of the applicants, we see nothing in the orders that attracts a grant of special leave.  The Court of Appeal was in the best position to clarify its cost orders.  No ground has been shown warranting this Court’s intervention.  The application for special leave is refused.  The applicants must pay the respondent’s costs.

AT 12.44 PM THE MATTER WAS CONCLUDED