Moran and Anor v Lydiard Financial Services Pty Ltd

[2004] HCATrans 562

[2004] HCATrans 562

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M53 of 2003

B e t w e e n -

ISABELLA BRIDGET MORAN AND JOHN GERARD MORAN (AS EXECUTOR OF THE ESTATE OF ISABELLA BRIDGET MORAN)

Applicants

and

LYDIARD FINANCIAL SERVICES PTY LTD (FORMERLY CUTHBERTS NOMINEES PTY LTD)

Respondent

Office of the Registry
  Melbourne  No M202 of 2003

B e t w e e n -

JOHN GERARD MORAN

Applicant

and

LYDIARD FINANCIAL SERVICES PTY LTD (PREVIOUSLY CUTHBERTS NOMINEES PTY LTD)

First Respondent

RICHARD ERIC OAKLEY

Second Respondent

DAVID ANDREW FARRELL

Third Respondent

ALAN WALTER SANDBACH

Fourth Respondent

ALAN ARTHUR GAY

Fifth Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 11.24 AM

Copyright in the High Court of Australia

MR J.G. MORAN appeared in person.

MR S.E. MARANTELLI:   Your Honour, if it please the Court, I appear on behalf of the respondent in matter No 53 of 2003, and on behalf of the first, second, third and fifth respondents in matter M202 of 2003.  (instructed by Wisewoulds)

HAYNE J:   Now, Mr Moran, perhaps if you would come to the lectern so that you can be recorded.  I have a certificate from the Deputy Registrar that she has been informed by Novatsis & Alexander, solicitor for the fourth respondent in matter M202 of 2003 that the fourth respondent in that matter will submit to any order of the Court save as to costs.  Yes, Mr Moran.

MR MORAN:   Which one are we hearing, your Honour?

HAYNE J:   We will deal with both of them together, Mr Moran.  If you would proceed with your argument in both, please.

MR MORAN:   Thank you.  Your Honours, I almost apologise for having to come to the High Court over a matter that should well have been dealt with in the lower court.  I come here seeking special leave because I was denied, in the M53, an appeal because, in the words of the Court of Appeal, “I had no standing in the matter”.

Secondly, it was the Court of Appeal that changed the heading of the action.  They have changed the heading of the action to “Isabella Bridget Moran & John Gerard Moran (as executor of the Estate of Isabella Bridget Moran)”.  Originally it just had “Isabella Bridget Moran v Cuthberts” or “Lydiard Financial Services”.  The reasons that the Court of Appeal gave for not granting leave to appeal out of time was that I had no standing in the court.  I am just looking for it in the Court book.  They mention it several times.

HAYNE J:   Page 11, paragraph 9 is at least one such example.

MR MORAN:   Yes.  At several other times that they – and the last paragraph, line 19 on page 11:

on the application of one who has no standing.

Now, I would like to refer your Honours to the documents that I filed that showed that that action of Isabella Bridget Moran and Cuthberts, initially, was an action that was three separate actions rolled into one and given a new number – and I just cannot find those documents just at the moment.  The actions were a Supreme Court action of Cuthberts Nominees versus my mother for a possession of property.  The second action was a County Court action No. 22 of 1993, through various partners of the family including myself, for a debt.  The third action was initially between Cuthberts Nominees and my mother, Isabella Bridget Moran, and New Zealand Insurance over – they were claiming the proceeds of a claim for – our home burnt down during the proceedings.

In the County Court – and that was the orders of the document that I supplied – the County Court ordered that both myself and my wife be joined as defendants to that action.  So of the three actions that were going, I was a defendant in two of them, even though the final heading of the court documents just read “Isabella Bridget Moran”.  The Court of Appeal had all that knowledge in affidavit form before it, and yet it still decided that I had no standing because they honed in on the very narrow aspect that I was executor to my late mother’s estate.

At the same hearing it was produced, and I believe it is still – it is mentioned in either this judgment or the judgment in the M202 matter – that the 78B notices were issued.  Yes, it is at page 8, line 23.  They refused to stand the matter down pending an application to the High Court, although the 78B notices were sent.  The reason for the 78B notices was really the fact that because of the 1975 Constitution Act (Vic) needed to be clarified as to – it claimed to have repealed the whole of the previous Constitution Act, which was the 1855, and yet England tells us that the 1855 Constitution Act is still in full force and effect.  So that means Victoria is running with two Constitutions, and I wanted to clarify ‑ ‑ ‑

HAYNE J:   No, it does not.  Yes.

MR MORAN:   Well, it needed to be clarified, and that was the purpose of a notice of a motion that I – it was not actually filed in the High Court Registry here, without amendments anyway.

HAYNE J:   Yes.

MR MORAN:   That brings into the jurisdiction of the Court of Appeal and those courts to actually have standing themselves to have heard that matter.

HAYNE J:   These arguments are variants on arguments that have sometimes been put in the Court.  They are arguments that always end up proving far too much, Mr Moran, as they are arguments that, if they had any legs – which they do not – it would demonstrate that there was no ownership of land, there was no Corporations Law, and the arguments of a kind commonly deployed to demonstrate that somebody does not owe taxation.  It always proved too much.  Yes.

MR MORAN:   But surely, your Honour, if something proves too much it does not mean to say that we should not deal with it and have a proper ‑ ‑ ‑

HAYNE J:   May say something about the validity of the argument that is advanced.  Yes, go on.

MR MORAN:   I have also sent a letter to Chief Justice, and I believe that you have a copy with the documents that I left with the Registry.

HAYNE J:   Yes.

MR MORAN:   And I do apologise for not having an index to those documents.  It raises further legal questions as far as standing, and it is something that we cannot deal with here today in only just 20 minutes.  It is very serious legal issues concerning the way the Western Australian Government passed legislation and that sort of thing.

HAYNE J:   Mr Moran, that has no bearing upon the immediate application before the Court.  Please confine yourself to the application before the Court.

MR MORAN:   So I rely on those four documents concerning my being a defendant to two of three matters that became this particular matter in the Supreme Court, to show beyond reasonable doubt that I did have standing in that matter and, therefore, the Court of Appeal was absolutely wrong in its decision to say I had no standing.  I believe that the merits of the arguments on the – whether Cuthberts – well, Lydiard Financial Services, formerly Cuthberts Nominees Pty Ltd – had obtained that property.  They got judgment on a property relying on a document that they did not even sign themselves and subsequent mortgagees did not even sign.

My argument at the time – and I believe Justice Phillips twigged the second time around in the 202 matter, or the number 2450 I believe it was in the Supreme Court.  He was the common judge in the Court of Appeal on both of these matters.  I understand at the second hearing after hearing – I must have emphasised the affidavit material as to say whether Cuthberts Nominees had lost their priority mortgagee status to the subsequent mortgagees, which just happened to be my family and I got the impression that it suddenly fell into place in his own mind, but nothing was actually put on the – there is no transcription of that hearing.

In the matter that has become matter 202, M202, I was having the same argument with Justice Mandie before the Court of Appeal and Justice Mandie said, “Well, they can’t be at fault because they didn’t sign” – I said they lost their priority - “They can’t be at fault because they didn’t sign that variation”.  As soon as I tried to take him back to three or

four years previous when they actually did lose their priority, Justice Mandie – I was becoming quite - asserting myself, I suppose, and Justice Mandie – and I have mentioned that, if you have read the Court application book – became quite agitated and would not allow me to get that sentence out, when they actually did lose their priority status.

So basically for those two reasons - in the judgment of the Court of Appeal of the matter that has become 202, the judgment reads that – something about an alternative motivation, the reason for doing it, which I just cannot find at the moment, although it is highlighted here.  In that matter, if criminal charges are brought against a party and those criminal charges comply with the terms of the Crimes Act, and the police are not interested in doing anything about it, so one has to – and they are indictable charges – it is also an indictable offence to know of indictable charges and not do anything about them.

So I personally laid those criminal charges on four different people, the principal one being David Fawell, who was the principal of Cuthberts – Lydiard Financial Services at the time.  Although the Court of Appeal said to me that I had ulterior motives in bringing these charges, in his affidavit David Fawell, instead of allowing it to go to the Magistrates Court to be dealt with in the normal course of events, collectively went to great expense to have a writ, an injunction issued on me to prevent me from laying any further criminal charges in the Magistrates Court until the trial of that matter.

In his own affidavit, David Fawell states as one of his reasons for not going to the Magistrates Court he was fearful that after 38 years in practice in the city of Ballarat it may have been reported in the local newspaper if he appeared at the Magistrates Court, and yet I was the one, by the Court of Appeal, that was told that I had ulterior motives for certain of those charges.

They are the basic points that I wish to get across to your Honours.  I have not had an appeal.  All the matters – they have gone – the affidavit material that was before the court and the – I should not say in the court, I am not a solicitor, but to me what appears to me to be a twisting of the facts to give almost a false impression of reality, to have the decision that was brought down and I would strongly urge you to allow the special leave so that all aspects of the matter can be aired and determined on proper grounds.

HAYNE J:   Thank you, Mr Moran.  We need not trouble you in either matter, Mr Marantelli.

There are before the Court two applications for special leave to appeal against orders made by the Court of Appeal of Victoria in separate proceedings.  We have heard the two applications together, despite the different issues that are said to arise in each.  In neither matter does the applicant demonstrate any arguable ground of error in the decisions of the Court of Appeal of Victoria. 

In each matter accordingly, special leave is refused with costs.

AT 11.41 AM THE MATTERS WERE CONCLUDED