Stankiewicz v Plata

[2002] HCATrans 34

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2000

B e t w e e n -

BRONISLAW STANKIEWICZ

Applicant

and

FRANK PLATA and JOE CASCONE

Respondents

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 11.50 AM

Copyright in the High Court of Australia

MR B. STANKIEWICZ appeared in person.

MR M.J. GALVIN:   If the Court pleases, I appear for the respondent.  (instructed by Rigby Cooke)

GLEESON CJ:   I understand there is going to be an application for somebody to appear as McKenzie friend, is that right?

MR J. GEBART-EAGLEMONT:   Yes, precisely.

GLEESON CJ:   Is that application opposed?

MR GALVIN:   No, your Honour.

GLEESON CJ:   Yes, you have that leave.  Go ahead with your submissions.

MR GEBART‑EAGLEMONT:   Your Honours, the case is considerably complicated, although it started with a very simple matter.  The facts are, and the facts are not questioned on…..that a person had been bankrupted.  The important element of this bankruptcy, however, your Honours, is that he has been bankrupted in his absence.  In such a situation he was really not allowed to present his case.  There are obviously some other aspects of inability of the appellant to present his case at different levels of our justice system, to which I will return in a moment, but I would like to stress the important element that…..at the last stages, which was Federal Court and Full Federal Court, the applicant was not able to present his case at all.

Coming back to the facts, the person has been bankrupted in his absence.  The debt at the very beginning was quite moderate.  It was precisely $5,411.67.  Now, the applicant at this moment was still in the possession of his house and considerable assets and, therefore, in the case of having been given any opportunity to respond to the debtor’s demands and any opportunity to discuss the entire situation, he would probably be able to solve the entire situation in a completely different matter.

The appellant presented to us in a profound and overwhelming feeling that he is a victim of an extreme injustice.  He attempted to fight on for many years, submitting appeal after appeal; the entire matter goes for at least four years, as I understand it.  All his attempts have been so far futile.  One can pose the question why it could happen, why there was no proper consideration of this case at any stage.  A spontaneous question may be raised:  therefore, logically, is this person completely and utterly insane or we are really dealing with some serious deficiencies in our justice system?

I tried to understand this case from the perspective of the third person, to some extent, the third party, because my presentation in this case is solely on basis of a voluntary interest in justice.  I am not involved at any stage and I do not have any vested interest.  I do not have any personal agenda.  My participation is completely voluntary, so I was trying to understand the case.  I was trying to analyse the case, and to find the core of the problem here.  In my attempts to analyse the situation in a holistic and unprejudiced way, I will try to concentrate on several aspects of the entire case, and mainly the person of the appellant; the second one, the origins of the debt; the third one the reasons for a court order to bankrupt a person in absentia without giving him a chance to offer any solutions to the problem of the moderate debt.

GLEESON CJ:   Now, you are seeking leave to appeal from a decision of the Full Court of the Federal Court given on 22 August 2000?

MR GEBART‑EAGLEMONT:   Precisely.

GLEESON CJ:   What is the error in the reasoning of the Full Court that you say warrants the grant of special leave?  Where do we find the error?

MR GEBART‑EAGLEMONT:   I am not a lawyer, because I am appearing here just as a McKenzie friend, so I can present on the natural justice approach to the case and obviously I am not going to attempt to use any legalistic and professional approach.  In my understanding, there was a breach of nature justice in the sense that the appellant was not allowed to present his case properly in the sense that he was absent during the initial bankruptcy, and it has not been considered properly by the Federal Court at both stages.  The fact that he was not allowed to present his case logically leads us to the conclusion that there was something wrong and the situation has not been remedied in some positive way.

It can have consequences for other immigrants because I think the core of the situation here is that the immigrant was not informed very well about the procedures in Australian courts.  He was not able to find proper legal representation, therefore there was an accumulation of different cultures which finally resulted in this difficult situation.  This difficult situation is that the appellant is sure that he was right appealing at any stage of the process.  His belief is grounded on basically, as I understand him, two major grounds, that the debt was generated in a way which represented a breach of professional ethics by a solicitor who was expected to represent him in the initial Family Court case.  Secondly, there was some amount of duress exerted on him to demand more money by the solicitor, and the entire situation led to a horrible development which resulted in bankruptcy.  May I continue, your Honours?

GLEESON CJ:   Yes.

MR GEBART‑EAGLEMONT:   So concentrating on the appellant’s personal – he is an immigrant from a non‑English speaking background which puts him in a difficult situation altogether in any legal situation.  He has no additional Australian education and his original education from his country of origin is quite limited.  He could not develop language skills due, as I understand it, to his characteristic situation of having worked for many years in a factory, and failed to learn English, or develop English skills, due to the same aforementioned circumstances.

If I jump now quickly for just two or three minutes to the question of the origins of the debt.  The initial debt of $1,000 had been magnified as a result of an unsuccessful complaint to the Legal Professional Tribunal.  Why it had happened, why the debt was actually growing instead of the solution of the case, our system somehow failed to provide the elementary justice.  My attempt to understand the situation led me to some temporary conclusions.  The appellant was not able to properly present his case.  At all stages he was unrepresented.  He was not able to find a legal representation because he was fighting against the lawyer, and obviously most of the legal practitioners he was trying to contact were rejecting him on this basis.  Therefore, there was no proper investigation, no proper consideration of the case.  The case has been dismissed at the level of the Legal Professional Tribunal.

The reasons for a bizarre bankruptcy in absentia, I would ask your Honours to consider this situation in terms of a major violation of the principal arm of natural justice, audi alteram partem.  In this case, one of the parties has not been heard properly at all.

GLEESON CJ:   This matter is dealt with on pages 15 and 16 of the application book, in the reasoning of the Full Court.

MR GEBART‑EAGLEMONT:   Yes.

GLEESON CJ:   Have you any comments to make on that reasoning?

MR GEBART‑EAGLEMONT:   As I said, we can only look at this situation from the point of view of elementary justice.  I am not able to present any legalistic approach to the situation because, as I mentioned at the very beginning, I am not a lawyer.  I am trying to understand the situation as a psychologist.  My strong belief is that there should be at some stage an opportunity at least for an appellant to present his case and to investigate the entire situation, which led to a disastrous development because his life has been completely destroyed.  His house was taken from him, sold.  His house was also arsoned before.  He was subjected to many verbal threats as well, and the situation led to a total destruction of his health because he suffered heart attacks and also at the end it led to a total destruction of his financial and material viability.

I have interviewed the applicant several times and have tried to analyse the considerable amount of legal correspondence in his case, in my attempts to understand the core of this entire bizarre situation.  If we go through the sequence of events leading to the initial debt, there was a Family Court case, considerably simple Family Court case.  According to the appellant, the solicitor, Frank Plata, failed to represent his client’s interests.  Everything is included already in the existing correspondence.  The problem is that no one at any stage listened to the appellant.

The solicitor, Frank Plata, used then, I would call it, a deceitful trick to mislead his client because he gave him only one page to sign without explaining what the document was about, without even showing the rest of the document which, as we found later, was actually containing five pages.  Therefore, the applicant was given only the last page.  No information about the deed was presented on this page.  He was forced to sign.  He trusted his solicitor.  So this, in short, describes the unusual situation.  According to the appellant, then Frank Plata placed his client in a situation of duress, attempting to obtain more money from his client.

Now, the client felt that he was not obliged to pay in such a situation.  His understanding of the basic principles of justice commanded him to refuse any payment and he understands this refusal as his tiny and weak demonstration of protest against injustice.  He was outraged.. He attempted to extend his tiny and weak protest.  Having complained to the legal professional tribunal, no one listened to him.  After his complaint he received verbal threats and his house has been arsoned.  In his stage of high distress he automatically linked these events to the circumstances of his complaint.  We do not know whether they were actually linked or not, in a causal link, but nevertheless this was his understanding which obviously led to more distress and, as a result of these events he developed a serious heart condition which further incapacitated him and made his efforts to rectify the case even more difficult.

What is important in this entire development, at all stages he went to the courts unrepresented.  It is obvious that all his appeals were completely condemned from the outset.  There was no representation and there was no ability to express himself.  There was no ability to point out the major points.  There was no ability to organise the evidence of - in a sense, as I understand the entire legal correspondence, the evidence was not presented or organised in any proper way.  Therefore, obviously, the evidence had been ignored.

There was no one to speak on his behalf and he was unable to speak for himself, considering his multiple disadvantages.  Now, one can pose a rhetorical question.  Can it happen to other immigrants with the same characteristics?  As a member of the organisation, which is Australians Against Ethnic Discrimination, we know that it happens to other immigrants in similar situations.  They are, to some extent, deprived of the opportunity to present their cases, to act in their cases because of the multiple disadvantages and sometimes in many situations by a very reluctant attitude of the courts to listen to them at all.

The other important rhetorical question which can be posed in this situation is:  is there a question of the proper and objective administration of justice?  Again, I would submit that your Honours consider the situation, that we are dealing with circumstances which are interfering…..with the proper and objective administration of justice.  Australia has a huge immigrant population.  A large part of this population has limited language skills and limited acculturation in the sense of understanding of the legal processes and legal systems.

Does this case involve a question of law that is of public importance?  Again, I would humbly submit to your Honours to consider this question, that if we have a large population of immigrants - members of this population in many situations are disadvantaged and are not able to avail themselves of the proper legal procedures.  Each presents a disadvantage which precludes them from any opportunity to avail themselves of the benefits of the legal system.

The next rhetorical question I would like to pose here:  can such bizarre situations be prevented in the future?  If we reject entirely or dismiss this case, of course the possible opportunity to apply what we are learning from this case will be completely excluded.  So again, I will humbly submit that we should consider this aspect in order to avoid any legal problems of this type we should analyse this case in its full extent, conduct proper investigations and collect evidence from the applicant’s point of view as well.

As an Australian citizen I was profoundly ashamed and very much alarmed, I would say, hearing about the applicant’s case, especially after having found that the applicant’s statements were not taken into account at different levels of our justice system.  Of course, the explanation of this is that they were not taken into account because they were not properly organised, they were not properly put together, they were not properly written, they were not properly sworn.  So, therefore, the evidence was basically not presented in the proper form.

As an Australian citizen, I repeatedly asked myself whether there are any potential remedies for this case, and similar situations.  From my point of view I was highly interested in a general situation, general situation of an immigrant in our country, and I would like to again submit humbly that we should have a closer look at the entire situation in a preventive aspect.  You should be able to find some potential remedies in order to avoid similar situations in future in our country.  Some of the situations represent a violation of international treaties which are signed by Australia.  Therefore, they can be interpreted as violations of human rights and, therefore, we should really look at this case also from this perspective.

I am enormously grateful to your Honours for giving us an opportunity to present this convoluted case in the High Court.  I entirely understand that the case is strange and it was not presented in a typical legal way because, as I said, I am not a lawyer and I am just trying to act as a McKenzie friend.  I would like to indicate that most of these errors at different stages of our legal system were errors of omission.  I would say that there was an error of commission at the beginning by solicitor, Frank Plata, and knowing the situation and knowing the evidence, because now I am in the possession of the sworn evidence in this case, it is quite clear for me that there were some major violations of professional ethics by Frank Plata.

What happened then were some errors of omission, lack of proper remedies, lack of proper analysis of the case, to some extent neglectful approach to the case at different levels, marginalisation of the immigrant, of the appellant, and in many situations, quite offensive and unpleasant treatment of his person through the legal system, exclusion of his evidence.  If you are looking at the elementary arm of natural justice, which is audi alteram partem, the courts should actually try and attempt to find the core of the truth, find the core of the case.

GLEESON CJ:   Thank you.

MR GEBART‑EAGLEMONT:   Thank you very much.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Galvin. 

The is an application for special leave to appeal from a decision of the Full Court of the Federal Court of Australia given on 22 August 2000.  That court, in turn, was dealing with an appeal from a judge of the Federal Court who had dismissed an application by the present applicant for annulment of a bankruptcy. 

No reason has been shown to doubt the correctness of the decision of the Full Court of the Federal Court and the application for special leave to appeal is dismissed with costs.

AT 12.11 PM THE MATTER WAS CONCLUDED