Roy v Maddocks

[1997] HCATrans 389

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 1997

B e t w e e n -

JOHN MAXWELL ROY

Applicant

and

MARGARET ANITA MADDOCKS and RAE ROY

Respondents

Application for special leave to appeal

TOOHEY J
GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 1997, AT 12.54 PM

Copyright in the High Court of Australia

MR J.M. ROY appeared in person.

MR I.G. HARRISON SC:   If the Court pleases, I appear with my learned friend, MR H.M. SILVESTER, for the respondent.  (instructed by Laurence & Laurence)

TOOHEY J:   Yes, Mr Roy.

MR ROY:   Your Honour, the Court of Appeal refused my case on the grounds, essentially, it appeared to me, on the question of accounts.  So I will, for a few minutes at least, to deal with the - - -

TOOHEY J:   I take it you understand, from having been in Court, and you would otherwise have been told, that you have 20 minutes in which to present your case.

MR ROY:   Yes, I understand that, yes.

TOOHEY J:   Go ahead, please.

MR ROY:   Your Honour, in this particular case, in our particular business, it was impossible, in all the circumstances, to be able to do accounts.  What happened - and, of course, this is in the documents and in the application book.  One of the reasons I was asked to, in front of Justice Hodgson, produce certain records and documents which, of course, I was unable to do because my brother, with the aid of a locksmith, had broken into our Chubb strongroom which we built when we built the new building and he removed quite a few of the documents, and actually the Court of Appeal said that he stole the documents.  I have never ever said he stole them.  He removed them is what I said.

Now, when I found the safe opened the morning after he had broken into it, I spoke to my brother, very amicably, and he was, if I could say so - he seemed very remorseful of the fact of what he had done.  He told me that he had done it.  He told me the name of the locksmith and he told me that it took about four hours for them to open the safe.  I did not ask him to give me back the records.  I thought, “Well, he’s entitled to have them”.  The only thing he should have done was to ask me for the keys at any time prior to that in the commencement of our business and I would have given him the keys, naturally, of the safe.  He was entitled to have them.  But it was unbelievable to me that he did obtain a locksmith to help him break into the safe.  That, of course, is only one reason why it would be not practical to do an accounting in the business.

The question for your Honours to decide, of course, is not to decide those questions - well, possibly, you will take those into consideration.  The cost of actually doing accounts, I think, would be - and particularly, I have been told - I have had no experience with this, of course - if accountants have to come into it and go into all sorts of records, well, the cost would be unbelievable.  The present position, as far as the financial affairs are concerned, is this:  on January 1st 1987, Justice Hulme ordered that accounts be taken from 1 January 1987.  Les broke into the safe on 11 May 1987.  But the position now is, after 60 years of business in partnership with Les, there is nothing left now.

TOOHEY J:   It seems a very sad thing this has gone on as long as it has, Mr Roy.  Is it not possible of resolution even now?

MR ROY:   I have tried, your Honour, only a few weeks ago.  I have tried from day one to have this matter settled and Mr Ryan told me he would talk to the girls but he did not get back to me.  But from day one I have spoken to my brother and he - I suppose I am not saying the right thing when I say my brother never wanted litigation.  I am completely satisfied on that.  Naturally, when he was recommended to solicitors, well, he took their advice the same as I took advice, when, eventually, I did go to solicitors. 

When the question came up before Justice Hulme, they retied just before the last - 9.30 directions hearing before Justice Hulme.  Now, I was representing myself at that stage.  I asked Justice Hulme to just give me a little time further to put matters before him which I considered that he should know.  But he refused that.

TOOHEY J:   You understand, Mr Roy, I think, that this is an application for special leave to appeal. 

MR ROY:   I understand.

TOOHEY J:   That there must be some question of general principle or something that warrants this case going beyond the Court of Appeal before the High Court.

MR ROY:   That is right, I understand that.  The thing I would probably be mainly - I know your Honours have the application book.  I suppose I could talk for a week on that, but I am not going to talk of things that your Honours have before you.

TOOHEY J:   You can take it that we have read the material in the application book.

MR ROY:   Yes, I understand that now.  I will say this, your Honour, in the 60 years that we were in business, the only time we went to court was when my brother took out a 66 application for the building to be sold.  I think, if I can, your Honours should see - and I understand I might be able to present those to you and show Mr Harrison a copy, and one for the Court, if I can - am I allowed to do that, your Honour?  I think it is a vital part of the ‑ ‑ ‑

GAUDRON J:   Except that the order for the sale of land is not an issue in these proceedings.

MR ROY:   I understand that but the partnership is an issue.

TOOHEY J:   Well, not even that, is it, it is really the order for the non‑taking of partnership accounts.  Is that not the order that you are seeking leave to appeal against?

MR ROY:   Your Honour, without the taking of partnership accounts, if the Court decided, “Well, okay, there is no way that anything can be decided without the taking of partnership accounts”, it is impossible to do it.  I would not suggest there is probably nothing in the law that says if something is impossible to do - and I can prove that it is impossible to do - then I cannot see how a court cannot give me leave to go to the High Court to put before the Court other matters that are relevant to the position with our business, including the fact that accounts are impossible.  Would your Honours give me permission ‑ ‑ ‑

TOOHEY J:   What is the material that you are wanting to ‑ ‑ ‑

MR ROY:   All I want to do is show you a photo of our building which Les and I built, we designed.  That the land for this building - although that is not the issue here - this is where it is relevant.  It is relevant for your Honours to know, in my view, just what happened in our business.  I will make that very brief.

TOOHEY J:   We probably do not need a photograph for that purpose.

MR ROY:   No, it is a letterhead, your Honour.  No writing; just a letterhead.  If I can just file that with the Court.

TOOHEY J:   All right, let us have it.

MR ROY:   Thank you, your Honour.  The question, of course, that I want leave to appeal to the High Court is a question of justice.  Your Honour, at the end of 60 years of working a successful business with no difficulties with my brother at all, and co‑operation and discussion with him - the land for this building was bought in 1934, $250 deposit and $20 a month, and it was in 1939, after spending about three years on and off designing the building - it was a custom‑made building - in discussions with Les we worked on designing it and then the result was a very, very nice building which was designed for our own purposes.  To think, as you said, it is very sad that it has got to this stage - it is not of my making, your Honour.

There is plenty of evidence that I can put to the High Court that Les was not the one that was interested in litigation.  Les did not want litigation.  In fact, it was mentioned by Mr Harrison that promises were not enforceable.  What Mr Harrison calls promises were not promises; they are agreements with Les and myself.  The whole basis of our business was done by agreement and discussion with Les and myself.  After he broke into the safe he was most co‑operative with me.  I spoke to the locksmith and, to make a long story short, Les co‑operated with me and we fixed up the damage ourselves.

But, the matter to go before the High Court is the injustice of the fact that I have nothing out of all my life’s work in the business with Les, which was co‑operation between us, and good feeling.  It is just unbelievable that this has gone on for 10 years.  I cannot understand that this is justice.  When this matter first went before Justice Bryson, and that is documented, he did not give me time to even put my case.

GAUDRON J:   But you have not appealed that decision.

MR ROY:   I did not appeal, no, because Les told me - and I always relied on my brother - that he was going to call off the trustees.  I tried to point out to Les the vast costs that would be involved with trustees, although I did not know the full extent of the costs, and Les told me later that his solicitors did not tell him about the costs and the ramification of trustees.

But, getting back to the trustees, the Court of Appeal - I think it was Justice Powell, said had he been the trial judge he would not have allowed the 66G application.  He said, “You should go away and talk about it.”  Of course, that was the right thing to do.  Nevertheless, it went ahead, and as the result of the vast costs involved in that, well, there is nothing left.  The only thing is the position now is the executrixes have a property that has been sold that Roy Bros paid for - the partnership paid for that property - but, because of the way, or because of the decision of Justice Hulme, he dismissed the fact of there being a resulting trust.  That is another point for the High Court, I submit

Justice Hulme said clearly Les did not carry out the agreement, which your Honours, of course, will have the agreement.  They will have all those documents.  Justice Hulme said that Les did not carry out the agreement that we made for Les to have the farm and me to have his half share in The Strand.  This was commented on by the Court of Appeal that, to use their own words, I gave a concession to Les that he could have his other half that he transferred to me, or was to transfer to me, restored if the property was sold and the amounts paid that we owed on the mortgage paid off.  I did not look at it as being a concession.  I expected, and I anticipated that Les and I would settle our problems between ourselves.  The only problem was Roy Bros paid for the farm and I was to have Les’s half share, and I was going to restore that, which is in the agreement, or give Les the opportunity to have his half share back.  Then, had that been done, we could have sold; we had plenty of buyers wanting the property.  It is a very beautiful building, and a building that is capable of being used for any purposes. 

The position was this:  that, as I say, everything has been lost because of the legal action and it is not because I have not tried.  Mr Ryan has sent me letters which I could produce to the High Court saying that I - or the usual thing was, as your Honour pointed out -  does that mean that I have ‑ ‑ ‑

TOOHEY J:   No, it means you have a few minutes, yet.

MR ROY:   I am running out of time.

TOOHEY J:   Well, you are running out of time, but you have not run out of time, Mr Roy.

MR ROY:   No, I can understand that.

TOOHEY J:   There is a warning light and then a red light tells you when you have reached the time.

MR ROY:   Yes, your Honour.  There is so many questions that, in the interest of justice, I want to put before the High Court.

GAUDRON J:   Mr Roy, you are seeking leave to appeal against the decision of the Court of Appeal.

MR ROY:   That is right.

GAUDRON J:   That is all you can do is to seek leave to appeal.  And, that does not involve the 66G application before Mr Justice Bryson.

MR ROY:   No, I understand.  Yes, I understand that.  I am not pressing that point but, as Justice Powell made his remarks on that, which is all in your application book.

HAYNE J:   And nor, I am afraid, Mr Roy, does it involve any of the other, perhaps, wider issues that may lie behind this:  questions of family relations and the like.  We cannot get into them.  We have to decide it according to law.

MR ROY:   I understand.

HAYNE J:   How others deal with those is matters for them.

MR ROY:   Yes, I understand that, but the question of justice, I think, is very important.  From what I have read, the High Court is very strong on the question of someone getting justice.  I realise in this - take, for example, a note I had here that Les, in his bedside court - he was not cross‑examined in the bedside court, just asked to explain certain things - the document Les said that he signed was not an unfair document.  It is in page 82, your Honour, Les said it is not an unfair document.  I think there was mentioned of Les signed letters under duress.  That was not the case.  Les and I had discussions which are all admitted over quite a period of time and there was no question of duress at all.

Yes, I realise at the time - I have read that discretion is a very, very important thing as far as the High Court is concerned.  Possibly as far as any court is concerned.  I am asking to be given the opportunity of putting my case to the High Court.  It might not be that if leave is granted that I will do it myself.  I might get some legal fellows at Canberra or something to do that.

If it became a question of your Honours refusing, or thinking of refusing this appeal, I would ask you to take into consideration Mr Ryan at part VI of his summary of application has envisaged suing me for costs.  I have nothing left.  Everything that I had is lost in legal and interest.  The position with the Citibank now is I owe them approximately $230,000 which my wife guaranteed Citibank to give me the money to pay out Westpac.  It was said that I kept that alive for my own benefit, the Westpac mortgage.  That is not right.  I never kept it alive.  I had no money to pay them out.  Every money that I had has been gone in legal expenses and interest.

TOOHEY J:   Mr Roy, I am afraid your time has expired.

MR ROY:   Can I just tell you this:  it is most inequitable, and that is another reason why I want to go to the High Court.  Thank you, your Honour.

TOOHEY J:   And thank you very much.  We need not trouble you, Mr Harrison.

Notwithstanding everything that has been said by Mr Roy, there is no point of general principle or any other basis that would justify a grant of special leave to appeal from the orders made by the Court of Appeal.  The application must therefore be refused.

MR HARRISON:   May it please the Court, I am instructed to seek costs.

TOOHEY J:   I was rather hoping that that application would not be made.

MR HARRISON:   It is improper for me to put to your Honours any matters that are not in evidence, and I understand your Honour’s expression of that view.  The application is not made lightly.  It is perhaps made in the face of facts that this Court does not have before it.  It would be improper for me to adumbrate that in any more detail.

TOOHEY J:   Yes.  Thank you, Mr Harrison.  Mr Roy, you have heard Mr Harrison ask on behalf of the respondents for an order for costs in connection with this application.

MR ROY:   Yes, I heard that.

TOOHEY J:   The practice of this Court, generally, is to make such an order.  Whether the order is implemented, whether it is even capable of being implement is another matter but this Court is being asked by counsel to make an order for costs of the application.  Do you want to say anything about that?

MR ROY:   Your Honour, there is so much costs that I have been charged in this application, even in the question of - the parties agreed before Mr Justice Sheller that the money would be paid into a trust account with Laurence and Laurence but the money was paid to a firm of stockbrokers and costs concerning that have been charged on to my account.  I am not suggesting that that is improper or anything like that but I do not think that a stockbroker should be handling this money which I estimate at least as $240,000, especially too, the correspondence and the accounts concerning them are charged to me.

TOOHEY J:   But what I am asking you is whether you can offer the Court any reason why the usual practice of the Court which is to grant costs in the event of an application being refused should not be followed on this occasion?

MR ROY:   Your Honour, I think - yes, my answer to that is there has been so much injustice in the whole matter and I am not given permission to appeal to the High Court, that as far as costs are concerned, I think that is a further injustice or I suggest it is if you order costs against me.  The respondents have the money that is left in the stockbrokers and I have got nothing and I ask that costs be paid by the other side.

TOOHEY J:   Yes, thank you.  There being no apparent reason why the ordinary practice of the Court should not be followed on this occasion, the application is refused with costs.

The Court will now adjourn.

AT 1.22 PM THE MATTER WAS CONCLUDED