Ofria v Micallef

[1999] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S201 of 1998

B e t w e e n -

ROLAND OFRIA

Applicant

and

GERALD MICALLEF and NORMA MICALLEF

Respondents

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 1999, AT 9.52 AM

Copyright in the High Court of Australia

GLEESON CJ:   Is there any appearance for the applicant?

MR O. BURATTI:  Yes.  My name is Oswald Buratti.  I am the nephew of Mr Ofria.

GLEESON CJ:   You seek leave to appear?

MR BURATTI:   That is right, I have, your Honour. 

GLEESON CJ:   Is that leave opposed, Mr Tyndall?

MR TYNDALL:   It is not opposed, your Honour.

GLEESON CJ:   Yes, you have that leave go ahead.

MR BURATTI:   Thank you.

MR L.R. De V. TYNDALL:  May it please the Court, my name is Tyndall.  I appear for the respondent. (instructed by John Burrell)

GLEESON CJ:   Yes, Mr Tyndall.

MR BURATTI:   I have written this so that it will help me to read it out.  As I said, my name is Oswald Buratti.  I am the nephew of the applicant, Mr Roland Ofria and one of the respondents, Mrs Norma Micallef.  I am here to speak on behalf of Mr Ofria.  What I will be saying is essentially what Mr Ofria would like to say but as his English can sometimes be hard to comprehend, he has asked me to speak for him. 

Mr Ofria understands that in order to be granted special leave to appeal to the High Court of Australia, an issue of public importance must be established.  The issue here is that a family man who has worked hard for 40 years in this country since he migrated here as a young man can lose everything he has worked so hard for, including his home, his business, his shop, all his possessions, and then be left destitute at an age when he should be looking forward to retirement.  Why?  Not because any documented evidence presented to the Court proved him guilty of any wrongdoings, your Honour.  Not because anybody other than the two respondents testified against him, but because the findings of the acting judge were based primarily on the demeanour and truculent behaviour, and I quote, “of this man whilst on the stand”.  No consideration was given to the fact that most other people placed in the position of Mr Ofria would have reacted in a similar manner when faced with the prospect of unjustly losing everything they had worked for.

Now, crucial evidence in the form of bank statements was deemed unimportant.  Whilst the respondents were represented by a team of competent lawyers, Mr Ofria, ignorant of the processes of the law and not having the resources required to seek top legal help, opted for the services of an inexperienced solicitor who took it upon himself to cancel a previous attempt by Mr Ofria to plead the Statute of Limitations Act, and then told his client to deny owing any money instead.

When Mr Ofria asked if a barrister was required, this solicitor assured him that it was a cut an dried affair, and there was no need for a barrister until just before the commencement of the proceedings.  Consequently, the barrister, although competent, was not familiar with the case and when the proceedings started, he had been briefed only a day before the thing started.  In addition, in a crucial stage of the proceedings Mr Ofria’s solicitor did not arrive in court until late in the afternoon to assist the barrister who urgently needed him at the time.

Another point that must be made is that a second set of proceedings is being brought against Mr Ofria by the respondents in relation to owed rent.  Now, this case is so closely related to the first one that it is in the interest of a fair decision for these two cases to be heard simultaneously.  After all, I think a fair decision in any court of law should be a matter of public importance.

In the Court of Appeal Mr Ofria was represented by another firm of lawyers who, at best, did not understand the facts as explained by Mr Ofria.  Again, crucial evidence in the form of bank statements, although subpoenaed, was not considered worthy enough for inspection.  On the other hand, the respondents’ principal piece of evidence was a copy of a document edited from the original in such a way as to conceal a signed admission of receipt of $8,000 plus interest by the respondents.  If your Honours could please look at pages 59 and 60.  Page 59 shows the submitted piece of evidence the respondent put in court.  Page 60 shows the original piece of evidence which has that little addition, “P.S. The loan of $8,000 was paid in full, plus the interest”.

Now when the respondent was asked in court what happened with that little addition, he really had no explanation for it.  He mumbled and stumbled, and if you notice the signature – Mr Ofria’s signature – where it says “Yours truly”, if you look at page 60, the bottom of the signature happens to be attached to the top of the little “e” of the “the”.  Now, in editing that part, the respondent could not take off the top of the “e”; it has a little hook on it; and they also changed the little circle of the bottom, they filled it in because when you photocopy it – I know because I sell photocopiers – when you photocopy that bit the whole thing comes off.  You cannot just take that bit off.  Okay, that is the problem with that one.

When confronted on the stand with a true copy of the document, as I said, the first respondent, Gerald Micallef, stumbled to find an acceptable explanation.  However, the incident seemed to have little effect on his credibility in the opinion of the acting judge who believed the respondents’ version of events.  Now, the Court of Appeal also found the respondents to be honest witnesses.  Two witness, Oswald Buratti, that is myself, and Sylvio Ofria who is Roland Ofria’s brother and Mrs Micallef’s brother who testified that Mrs Micallef admitted to them receiving cash money from Mr Ofria, were deemed ‑ ‑ ‑

GLEESON CJ:   The notation you have just been telling us about ‑ ‑ ‑

MR BURATTI:   Yes.

GLEESON CJ:    ‑ ‑ ‑ is the one referred to on page 6 at line 26, is it?

MR BURATTI:   That is it, yes.

GLEESON CJ:   Thank you.

MR BURATTI:   All right, I will go back to the two witnesses, me and Sylvio Ofria.  We testified that Mrs Micallef admitted to them receiving cash money from Mr Ofria.  We were deemed to be honest witnesses by the acting judge.  The testimony, however, was not accepted.  Now, on one hand, we have one person altering evidence with the obvious intent to conceal information having his testimony accepted; and on the other hand, we have two honest witnesses as deemed by the judge having their testimony rejected.  Now, there seems to be some degree of confusion, to say the least, in the assessment of these people by the learned acting judge, your Honours.

The respondents claim that the money they withdrew from payment of their share of the property came from ANZ accounts, yet they could not produce evidence of that.  However, the withdrawals from the St George Building Society books, if you would like to look at pages 54-57, Exhibits “U”, “V”, “W” and “X”, these four exhibits show the exact amounts, accurate to the cent, that were required for payment of the property, as shown in the Law Society document on page 58, Exhibit “S”.  If you notice on the bottom of page 58 on the right-hand side, those handwritten entries were written by the Law Society people.  Those amounts are exactly the same amounts that were withdrawn from the Micallefs’ St George Building Society books.  They were exactly to the cent.  It is a little bit hard to deny that that is where the money came from and the ANZ books that were never available from the Micallefs.

It is painfully obvious that Mr Ofria’s case was not understood at all well by anybody.  Mrs Micallef claimed, while sobbing on the stand, that she would never go against her brother.  She was the main instigator in sending the sheriff’s officers on numerous occasions – this is around Christmas, mind you – to her brother’s home to seize his furniture which fetched nothing at auction, next to nothing, I mean, peanuts, obviously not the act of a loving sister.

It should be a matter of public importance that when dealing with any dispute the whole of the evidence available must be inspected in order to arrive at a just decision.  One common belief is that there is one law for the rich and one for the poor.  Mr Ofria has come to this High Court representing himself as he cannot afford legal representation.  He has no money left, yet he is armed with a conviction that he has been unfairly treated and will fight legally to the end to prove his point.  You know, his passionate and sometimes truculent manner, which I admit does exist, has been misrepresented as a mark of dishonesty.  Mr Ofria believes ‑ ‑ ‑

GLEESON CJ:   Is that quite right?  If you have a look at page 5, line 50 in the reasons for judgment of the primary judge, you will see her reference to the subject you have just been talking about.

MR BURATTI:   Fine, okay, page 5, line 50.  That is right, that is the judge’s opinion.  That is what I am getting at, basically, that her opinion of him was that he was like that.  She took it into consideration.

GLEESON CJ:   No, she said she had made allowance for it, actually.

MR BURATTI:   She made allowances for it.

GLEESON CJ:   Yes.

MR BURATTI:   Fair enough.

GLEESON CJ:   You told us a few minutes ago that she had regarded it as a badge of dishonesty. 

MR BURATTI:   Well, it did because she basically went against him, while the others actually forged documents.  Is that not some sort of dishonesty?  That is how I feel

Mr Ofria believes that in this democratic society in which we live, it must be a matter of public importance that a person not acquainted with the legal process and jargon, handicapped by a poor grasp of the English language, should have the right to have his case determined by the weight of the evidence at hand, and not by his demeanour and inability to be understood. 

Now, maybe this little case is not a big deal in the High Court of Australia, but I think there are so many Roland Ofrias who could find themselves in similar circumstances.  This man has raised five children, supported a wife for 40 years, he has paid the penalty for his inability to communicate properly in the legal system, poor choice of legal representation, limited resources and his demeanour in the court.  He wishes to be judged primarily on the evidence, all of the evidence that is available, which was not given to him.  We are not basically asking for you to decide he is right, but I think the whole thing should be started all over again with a view of all the evidence, including the bank statements which were never looked at in the lower courts.  He has come to the most honourable court in the country, the High Court of Australia, pleading for justice.  That is it.

GLEESON CJ:   The Court of Appeal gave reasons for their decision.

MR BURATTI:   Right.

GLEESON CJ:   Mr Acting Justice Fitzgerald gave the principle reasons.  Do you suggest that there is any error in those reasons and, if so, where do you say we find it?

MR BURATTI:   We suggest that the counsel for Mr Ofria was not aware of all the circumstances.  They were made aware by Mr Ofria.  However, when he showed them all the evidence, they did not submit it or they did not fight hard enough in the appeal for Mr Fitzgerald to look at the evidence.  I am not blaming the court system at all, either the Court of Appeal or the other judge, but does Mr Ofria have to pay the penalty for his inability to express himself at such a high costs?  I mean, it is a man’s life we are talking about.  It is not a company that can go bankrupt the next day.  This guy is 62 years old.  What is he going to do?  I think he deserves another chance in the first – in the equity court, together with the rents, with all the evidence showing.

GLEESON CJ:   Is there anything else you wanted to add?

MR BURATTI:   Not really.

GLEESON CJ:   All right, thank you.  Take a seat.  We do not need to hear you, Mr Tyndall. 

In this matter, the Court is of the view that there is no reason to doubt the correctness of the decision of the Court of Appeal and for that reason the application for special leave to appeal for the decision of the Court of Appeal is refused.  Can you resist an order for costs?

MR BURATTI:   Yes.

GLEESON CJ:   On what ground.

MR BURATTI:   On top of everything, he has to pay costs as well for this?  We would rather that he did not, obviously.

GLEESON CJ:   All right, thank you.  Do you press an application for costs.

MR TYNDALL:   Yes, we do. 

GLEESON CJ:   The applicant must pay the respondents’ costs of the application.

The Court will adjourn for a short time to reconstitute.

AT 10.08 AM THE MATTER WAS CONCLUDED