Shields & Anor v CBFC Ltd

[1995] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S148 of 1994

B e t w e e n -

ISAAC JOHN MACKAY SHIELDS

First Applicant

JENNIFER MARGARET SHIELDS

Second Applicant

and

CBFC LIMITED

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 12.35 PM

Copyright in the High Court of Australia

MR R.G. FORSTER, SC:   May it please the Court, I appear for the respondent in this matter.  (instructed by L.E. Taylor)

BRENNAN CJ:   Mr Shields, you are seeking leave to appear in person?

MR I.J.M. SHIELDS:   Yes, your Honour, and this is my wife.

BRENNAN CJ:   And Mrs Shields, are you appearing for yourself, or are you asking Mr Shields to represent you?

MR SHIELDS:   We will be operating together.  I have not had a very good schooling so anything to be read my wife will be reading it, so we will be working together.

BRENNAN CJ:   Why should we grant you permission to appear in person?

MR SHIELDS:   Because I do not have the money to buy somebody to appear for me.

BRENNAN CJ:   Very well, Mr Shields, you have between you 20 minutes.  That is the rules of the Court in relation to applications for special leave to appeal.

MR SHIELDS:   Do they need to, because my wife has a sore leg, do they need to bring that microphone over here?

BRENNAN CJ:   I do not think so.  I think if your wife speaks from where she is, that is quite satisfactory.

MRS J.M. SHIELDS:   It would appear that all the judges have joined forces and the applicants have ‑ ‑ ‑

BRENNAN CJ:   The papers have been read, so what you need to do is concentrate upon showing that there is some particular question which justifies this Court in intervening.  We do not usually hear appeals just because they are brought; we only hear appeals which raise a special question of importance for consideration.  So it is that special nature of the question that you  have to demonstrate within the 20 minutes that you have.

MR SHIELDS:   I believe we have.

MRS SHIELDS:   We, the applicants, have been severely disadvantaged in preparing ourselves for today by the Commonwealth Bank, the opposition, harassing us in the worst possible way by serving us with a notice to vacate the house we are renting without delay.  This has hindered us at a critical time in preparing our case.  This could undermine the public confidence in thinking that an injustice would occur.

It is accepted that your Honours have read the application book and the written case.  The applicants refer your Honours to page 3, paragraphs 10, 11, 12 and 13 of the applicant’s written case.  The applicants ask your Honours to mentally underline and highlight this section.  We all must be tried fairly.  It must be remembered that we, the applicants, are a very small minority that have the courage to come here to the courts.  All the other victims go away claiming the courts are only for the rich.  If the courts do not take notice of page 3 of the applicant’s written case, then your lives, mine and our children’s lives are in danger.  This is anarchy.  That is why the applicants refer to the international treaties.

The incapacity No 1 and 2 on the first page of the written case is section 72(ii) of the Constitution. In relation to finding of facts in the respondent’s written case, the authority Devries v Australian National Railways Commissioner points out all the dangers of relying on finding of facts in the lower court.  This matter, in actual fact, supports the applicants.  It states:

Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions.

I would like the Court to take particular notice of this matter. If the finding of fact argument is taken too lightly, you are then denied an appeal and this runs foul of section 73 of the Constitution.

The non-legally trained litigant in person is, in fact, the same as if it were the general public as he or she is not going to talk about his dealings in the courts with the legal community as he is not a member of the legal community and does not have the interest in protecting the law as he has been wrongly treated because of bias by the law and feels that the law must be made answerable.  The only way left to him is to tell all, as he cannot have the problem dealt with in the courts.  This puts the court system in jeopardy.  This is not good.

The applicants have been endeavouring to defend themselves in the courts, but only come up to a barrage of discrimination and denial of natural justice.  It would appear that all the judges have joined forces and the applicants have passed the stage of ever being able to get a fair and public hearing by a competent, independent and impartial tribunal established by law.

The judges in the Court of Appeal below and the single judge erred at law in not checking the evidence before them properly.  The judges erred at law in not reading the contract with an open mind.  The judges erred at law in not looking at the words “would” and “should” with an impartial mind.

In the respondent’s written case the respondent has failed to produce any points of law that the applicant’s application for special leave to appeal does not comply with section 35A of the Judiciary Act.  The opposition is just waffling on. 

Under the Constitution, section 75(iii), the High Court is the correct Court to go to as this is the Commonwealth, see Inglis.  At all relevant times all the shares are owned by the Commonwealth Bank of Australia with the exception of four, and they are owned by three employees of the Commonwealth Bank. 

The following has occurred against the applicants, (a), transcripts not automatically available, page 67, paragraph 3.9 of application book; (b) misleading and deceptive conduct; (c) fraud; (d) procedural unfairness; (e) denial of natural justice, and (f) discrimination.

The workload for judges has not decreased over the years but increased and for the transcripts not to be in the file ready for judges when he is writing his or her judgment is overtaxing the judges and this, the applicants feel very strongly about. The transcript should be made available to all judges and to also the parties that cannot afford them. If not, then it must run foul of section 73 of the Constitution of Australia. You must not be tried unfairly: the Human Rights and Equal Opportunity Act 1986, article 14, article 16 and article 26.

The applicants have been involved in a number of other matters in the Federal Court and High Court of Australia as you may well know. We feel that it is one discrimination on top of another. The applicants also feel that the club is closed to all non-legally trained litigants in person. This is prohibited by the Australian Constitution and the world courts. Section 73 of the Constitution of Australia installs the High Court as an appellate court, therefore there may not be a right to a fair trial but you must not be tried unfairly: see Jago and Dietrich.  The continuation of processes which will culminate in an unfair trial can be seen as a misuse of the court process which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial, page 50, lines 24 to 31.  The applicants feel that it is a disgrace that they have to refer to international laws to get any sort of justice. 

With the biased way Justice O’Loughlin has written his judgment against the applicants, it is discrimination against a non-legally trained self litigant.  I would like to point out that all the applicants’ investigations that involved Justice O’Loughlin that had any sort of connection with Laurence Hoynes showed that Justice O’Loughlin has ruled against those people.  It was shortly after Laurence Hoynes was in the High Court that the discriminative order 69A rules 13 and 14 was brought into being.  It matters not if Laurence Hoynes had anything to do with it or not.  It is still discriminative. 

If ordinary people find it difficult to remember things 12 months or more after the event, why is the judge’s brain different to anyone else’s and would not have the same difficulty in remembering things 12 months later.  The transcripts of 20 September 1993 have never been ordered.  That is as at 23 November 1994.  If the transcripts had been supplied automatically then the outcome may well have been greatly different as what actually happened on 20 September 1993 was a great deal different to what was written in the judgment, the date of which was 6 September 1994.

Misleading and deceptive.  Interest rates.  Misleading or deceptive conduct.  The contract was not what the applicants were led to believe and the respondent engaged in conduct that was misleading or deceptive or was likely to mislead and deceive, see pages in the application book for interest rates, page 17 lines 43 to 44; page 20 lines 16 to 22, paragraph 18; page 22 paragraph 26; page 23 paragraph 29; page 49 paragraph 2.1 to 2.2; page 50 paragraph 2.4; page 54 to 55 paragraph 2.18 to 2.20. 

It is very clear from the above that Justice Morling showed bias, (a) interest rates have been changed a number of times; (b) the contract does not show the interest rates, therefore allowing the respondent to change them at will without the applicants’ consent or knowledge.  This is wrong; (c) applicants had no way of knowing about the interest rates until the applicants had subpoenaed the respondent; (d) Justice Morling failed to see that the respondent had broken the contract or hire purchase agreement as the contract states, “If any moneys payable become overdue on demand pay thereon interest at a rate of 20 per cent”.  This would also confirm that the interest rates were less than 20 per cent.  This would also mean that the respondent was in breach of contract as the interest rates were in excess of 20 per cent; (e) a fair minded observer would conclude that the judge would have read the contract or hire purchase agreement and would have known about the above (d).  The contract or hire purchase agreement was read.  It is exhibit B.  A fair minded observer would conclude that the judge had prejudged the matter and nothing was going to change it, ANI v Spedley Securities.

In Australia, although it was formerly necessary to demonstrate a probability or real likelihood that a reasonable observe would apprehend bias by prejudgment on the part of a judicial officer concerned, such is not now the case in this country.  By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is whether the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved.

On 22 December 1992 Justice Morling gave the respondent possession of the equipment without a hearing.  What sort of justice was that?  There was no prearrangement to sign the documents or contract for the lathe.  If there was a prearranged time for the contracts to be signed, why has there been no documentation produced by the respondent.  It is a well known fact that banks and finance companies document everything.  Where is the documentation for this?  There was no prearranged time.  The applicants believe that the respondent did know that they were misleading the applicants and they did it deliberately and with malice aforethought.  The applicants were told by the broker, John Gordon, that the contract was true to the phone conversation with CBFC.  This was 19 per cent interest rate and would be adjusted to the current rate in two years time.  This would have been about 10 to 12 per cent.  The applicants had no time to check on the phone conversation - this is confirmed by a video that was shown in court - the applicant, Isaac Shields, had with the respondent when he agreed with the 19 per cent interest rate and it would be adjusted to the current rate in two years prior to the signing of the contract.

Upon such warranty the applicants signed the contract.  The applicants relied on the said contract as being correct and lawful.  In relying on the said contract the applicants’ children have suffered emotional and psychological disturbances along with the applicants, and the applicants have also suffered damage.

“Would” and “should”.  As to the words “would” and “should” it is very clear from all the documents, including a letter from the Prime Minister’s Department that the word ‘would” was the word used.  The only document that did have the word “should” was an affidavit of Isaac Shields of 14 January 1993 and that was a typographical error.  In that same affidavit was also another typographical error.  It is quoted. (a) After two years I reminded Mr Paul Higgs - it should have read Anthony Higgs - a caller from CBFC, of the promise to reduce the interest rate to the current interest rate after two years which was one of the main reasons why I agreed to accept the money.  At the same time, three pages on in the same affidavit is quoted, “The contract is not what I agreed to.  I agreed to the interest rate being 19 per cent and to be adjusted to the current interest rate after two years.  That is what I agreed to.”  What more positive could you have than these two above.

The other documents accompanying the affidavit showed the word “would” and this included a number of letters to the respondent. On the cross-examination of Isaac Shields on 8 February 1993 it was very obvious that the interest rates would be adjusted down in two years time. This leaves the applicants to conclude (1) there was real bias by Justice Morling; (2) if the Full Bench cannot overturn Justice Morling’s finding, then the appeal court is nothing but a joke, irrespective of what authorities the respondent may come up with: section 73 of the Constitution of Australia; (3) as the Full Bench did not have the transcripts of the appeal the judges had in fact forgotten what the case was all about; (4) the judges concerned in the appeal made their judgment on Justice Morling’s reasons for judgment only; (5) by virtue of the transcripts not being produced automatically to the judges, bearing in mind that the judges’ workload is increasing and not decreasing, the applicants were, in effect, denied an appeal; (6) the transcripts must be provided to the judges automatically; (7) a fair minded person at the back of the court would be disgusted that the judges are not automatically provided with the transcripts.

A judge is employed by the Commonwealth. Therefore, any action against the judge or his judgment on bias by the judge comes under section 72(ii) of the Constitution. Also, if there is bias, then the applicants have been tried unfairly: section 73 of the Constitution. This complies with section 35A of the Judiciary Act 1903.

As to the words “would” and “should” it is very clear from pages 63 and 75 of the application book that Justice Morling showed bias.  The respondent knew all the relevant facts of which the applicants were ignorant of and were uninformed.  The applicants and their children lost their family home as a direct result of what the respondent did and, consequently, have been forced into an inadequate standard of living whereby the applicants and their children are constantly relying on welfare for food, clothing, dental care, health care and electricity.  The applicants and their children have also been forced into rental accommodation and so do not know from time to time where they are going to live.  This has created in the minds of the children a state of anxiety.  The applicants feel that this is in breach of the Convention of the Rights of the Child signed by Australia 2 August 1990, ratified on 17 December 1990 and adopted by the General

Assembly of the United Nations on 20 November 1989, also referred to in the High Court matter dated 7 April 1995, see Teoh.

The applicants can take their matter to the international courts: see Optional Protocol to the International Covenant on Civil and Political Rights, Article 1 and Article 2; International Covenant on Economic, Social and Cultural Rights, Article 11. The applicants were unfairly tried and the applicants have complied with the requirements of section 35A of the Judiciary Act.  The applicants ask this honourable Court to grant the applicants leave to appeal, keeping in mind that the applicants are not lawyers and ultimately would have made a number of errors in this application and ask this Court to overlook any errors that there may have been made.  Thank you.

MR SHIELDS:   In Justice Morling’s judgment he played a lot of emphasis on the words “would” and “should”.  That is why we have covered it fairly well on there.  We feel that to make a judgment on the words “would” and “should”, especially when it was only one case that the word “should” was referred to, and that we claim and we sincerely believe that it was a typographical error.  It was the word “would” and that was the reason why I accepted the contract.

Also on the back of the contract there is a limit.  So, in other words, this contract is limited to 20 per cent.  It therefore follows that the moment they signed and accepted it, it was in breach.  They were in breach of contract.  The interesting point about it, I signed the contract on the 4th - I forget which month - and CBFC signed it on the 6th and changed the interest rates.  Now, in the application book I had a number of documents there that showed where the interest rates had been changed and they are in the application book of all the different interest rates were changed. 

So what has happened, I have signed the contract, believing that it was going to be 19 per cent and in fact when they rang me up and told me they were going to give me the loan the first thing I wanted to know is what the interest rate was.  He waffled on for a while and he said - I think it was 20 per cent - and I said “That’s too high”.  And he then came down to 19 per cent and I said, “Well, that’s still too high”.  He then said to me, “This loan will drop down to the current rate in two years”, and it is that that I accepted this contract.  But when you read on the back of the contract, it has got a limit of 20 per cent anyway - sorry, it is a limit of less than 20 per cent.  So even though the contract does not say it on the front, and I believed it was 20, by them changing to above 20 they are in fact in breach of their own contract.

Then I feel, looking to the Judiciary Act, section 35A(a), I feel we have complied with that in changing the contract and the interest rates changing also. In (a)(i) I feel that we have complied with that by being tried unfairly. I sincerely believe we have and with the information we got there I think - I do not think, I know we are - and (a)(ii), the findings of the facts and transcripts. The finding of facts is a very important thing and we have complied with that one on that one.

BRENNAN CJ:   Thank you, Mr Shields.  We need not trouble you, Mr Forster.

The grounds advanced by the applicants for special leave in this case raise no question of general importance which warrants a grant of special leave.  The suggestions of bias are not supported by any material.  Regrettably it seems that the applicants have interpreted adverse decisions in the courts below as indicating bias and/or that they have not had fair hearings.  There is no reason for that belief.  In the circumstances there is no option but to dismiss the application for special leave.  The application for special leave is accordingly refused.

MR SHIELDS:   Then I have to proceed to the international court because breaking a contract has got to be wrong.

BRENNAN CJ:   You may take whatever course you may be advised, Mr Shields.

MR SHIELDS:   But is not breaking a contract complying with the Judiciary Act?

BRENNAN CJ:   Mr Shields, we have disposed of the application.

MR FORSTER:   I ask for an order for costs.

BRENNAN CJ:   Have you anything to say as to whether or not an order for costs should be made, which is the usual order that follows?

MR SHIELDS:   Your Honour, you have heard we read out in the first one the Commonwealth Bank are throwing us out of the house we are renting.  My wife is on crutches, we are supposed to be out on Thursday.  We have no money, we have no place, we have got small children and we have been destroyed by the Commonwealth Bank, the ANZ Bank and then backed by it on another part which is the Commonwealth Bank and the ANZ Bank.  We are renting a place and the place we are renting we are not in default.  The landlords are in default and we are the victims.

BRENNAN CJ:   Yes, Mr Shields, we understand that these are the problems that arise when litigation comes here and when it is unsuccessful, but we have no option but to follow the ordinary rule which is that when an application of this nature is brought and fails, the application for special leave must be refused with costs.

MR SHIELDS:   Is there anything that this Court can do in allowing us to have a little bit more time to get out of the place we are in, seeing it is also the Commonwealth Bank?

BRENNAN CJ:   No, there is nothing this Court can do about that, Mr Shields.  The Court will now adjourn to a date to be fixed.

AT 1.00 PM THE MATTER WAS CONCLUDED