Stankiewicz v Plata

[2001] HCATrans 51

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 interlocutory relief

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 28 FEBRUARY 2001, AT 10.34 AM

Copyright in the High Court of Australia

MR B. STANKIEWICZ appeared in person.

HIS HONOUR:   Now, Mr Stankiewicz, I understand you have some people who are here to assist you, is that right?

MR STANKIEWICZ:    Because my English is limited.  I very pleased Mr ‑ ‑ ‑

HIS HONOUR:   Mr Gebart and Dr Williams is here as well.  Now, Mr Stankiewicz, who is to speak on your behalf?  Is Mr Gebart to speak on your behalf?

MR STANKIEWICZ:    Together, yes.

HIS HONOUR:   Yes.  Thank you very much.

MR L.P. GREEN:   Your Honour, I appear on behalf of the respondents.  (instructed by Rigby Cooke).

If I could indicate from the outset, your Honour, that the second‑named respondent, Joe Cascone, is the trustee and neither supports or opposes the applicant’s application today.

HIS HONOUR:   Yes, thank you.  Well now, Mr Gebart, would you be good enough to tell Mr Stankiewicz, and Mr Stankiewicz can hear me say it, that I have now just been handed, firstly, an affidavit by Lionel Peter Green of 28 February and an affidavit of Mr Cascone of 27 February.  Have you seen these affidavits?  Has Mr Stankiewicz seen these affidavits?

MR GEBART:   Yes.  Your Honour, both affidavits were actually given to me today just before we started so I was not able to really read the second one.

HIS HONOUR:   No.  Well, I have not read either of them yet.  So, what I would suggest we do, before we start, if you take some time to read them both or whichever of them you have not read; I will read them both and then we will see where we go from there, but let us start just taking a little time to read them if we could.

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   Well now, Mr Gebart, have you had a chance to read that?

MR GEBART:   Yes.

HIS HONOUR:   Do you want to have any time to discuss the matters that are said there with Mr Stankiewicz?

MR GEBART:   Not yet because we assume that both affidavits actually are related to the core of the matter, to the specific case of bankruptcy which is going to be heard by the court in due time.  So, as I understand, your Honour, today, according to this summons we received, we are basically meeting to discuss the matter of prevention of the sale of the applicant’s home before the final judgment in this case.

HIS HONOUR:   Yes.

MR GEBART:   So, this is the comment, your Honour, I wanted to make about it.

HIS HONOUR:   Yes.  Now, all I am concerned to do though is when you receive papers like this at the last minute, sometimes it happens that there are things there which you need to discuss with, in this case, Mr Stankiewicz, and if there were things that you wanted to discuss, I wanted you to have time to do it.  If you are happy to go on, let us go on.  If you want time, I want you to say so.

MR GEBART:   Your Honour, my idea is that we should probably concentrate on this particular goal which was basically formulated for today.  The affidavits are relating to the entire case.  We are not meeting here to discuss the entire case, we are meeting here to - - -

HIS HONOUR:   The issue before me, as I understand it - - -

MR GEBART:   Issue, which is interlocutory remedy.

HIS HONOUR:   As I understand it, the issue before me is whether I should make an order that would prevent the trustee going ahead with the sale of the house.

MR GEBART:   Yes, your Honour.

HIS HONOUR:   Now, it seems to me that I should approach that – I should come to that sort of question with this set of considerations in mind.  I should start from this base:  first, if I do not stop the sale, the real point of Mr Stankiewicz’s application for special leave to appeal to this Court goes away.  There is not much point in him going on with his application for special leave if, in the meantime, the house has been sold.  That is point one.  Point two then is, if that is right, if the application for special leave really becomes useless to him or of not much use to him if the house has been sold, the question then is has he enough chance of persuading the Court on the application for special leave to grant special leave, that I should now stop the sale of the property.

So, it seems to me that the real question that we have to look at this morning is what are his chances of getting special leave to appeal.  If he has no chances or very slight chances, why should I intervene?  If he has a chance, or reasonable chance of getting special leave, if I do not intervene his special leave application is not worth much to him.  Now, that seems to me to be the area for debate.  It may be that there are other aspects of the matter that you think I need to take into account.  But for the moment, at least, I think the real area we have to focus on is what are his chances of persuading this Court to give special leave to appeal.  Do you follow that?

MR GEBART:   Yes, and I would like to attract your attention, your Honour, to the fact that basically we were not informed that today’s meeting is about the special leave of appeal.  So, my understanding was, and our preparation follows this line, that we are going to concentrate on the interlocutory remedy.

HIS HONOUR:   Yes.  There is no doubt we will concentrate on that but it seems to me there is no point my making an order stopping the sale if the application for special leave were hopeless.  If the application for special leave had real prospects of success, then there seems to me to be, at the moment at least, a lot of reason to stop the sale, because if I do not stop the sale, the point of the application for special leave just goes away.  There is nothing to fight about if the house is sold.

So, it seems to me to focus on does he have an arguable case for special leave to appeal.  If he does, then I understand you would say there are powerful reasons to stop the sale; if he does not have an arguable case, then why should I prolong the agony?  That is how I approach it at the moment but now is your chance to either tell me I am wrong or tell me why I should get to one rather than the other answer in the questions I have posed to you.

MR GEBART:   His application of special leave to appeal was basically based on grounds of natural justice altogether and I think that there are strong indications that some elements of natural justice has been violated in this case because the applicant was not allowed to participate in the original proceedings leading to the bankruptcy because he was in hospital in this particular day and he was able to present a medical certificate that he was not able to come which, I think, is reducing his chances to present any other options for financial solutions.  The debt at this time was about $5,000 at the very beginning.  I do not remember the precise digit but it was something about $5,000.

Assuming that the applicant’s assets were calculated as $40,000 by the Federal Court last time, we should at least be able to give the applicant a chance to present his case or his representation.  Because he was ill in the hospital at this moment, obviously there was no possibility of presenting his case to the court.  Another element is related to lack of consideration at the lower level concerning the applicant’s difficulties in communication in English and communication in the court altogether because the applicant has been working his entire life in a factory, so therefore he was not able to really learn much about Australian law and, in fact, he failed to learn the language, which is the major reason that we are trying to help him, because we consider he is disadvantaged.

So, in our understanding, this disadvantage has not been properly addressed at the lower levels and there was a sort of important element of breach of natural justice.

HIS HONOUR:   Sorry, I missed the word:  “there was a” - - -?

MR GEBART:   Important element of breach of natural justice, in the sense that the applicant was not allowed to present his case.  So, therefore, my argumentation follows the line that because there was a breach of natural justice, the chances of the applicant, at least, to present his case should be given to him.

HIS HONOUR:   Can I just stop you there and go back and make sure that I understand the points that you are making.  It seems to me there are three points that you have just made.  First, you focus initially on the hearing at which he was made bankrupt, where he was not there and you say that that was a denial of natural justice because, you say, he was unable to attend. 

The second point you make is that at that point his assets exceeded his liabilities.  He had more assets than he had liabilities.  The third point you make is the point of the disadvantages he suffers by reason of his difficulties of communication with and understanding of the court processes.  Now, is that the nub of the three points you have just made?

MR GEBART:   Yes, your Honour.

HIS HONOUR:   Yes, go on.

MR GEBART:   So, therefore our argumentation would be that application for special leave to appeal should be granted because it will represent a situation in which the applicant, with our help, will be able to present his case and this particular element of the entire affair was not addressed properly at the previous stages.  Therefore, I would rather ask your Honour to consider this application for interlocutory remedy because in the case of the sale of the house the situation of the applicant can be even more disadvantaged.

HIS HONOUR:   I understand that.  I understand that if I do not stop it there is no point fighting.  It is as hard as that, is it not?  If I do not stop the sale, there is no point fighting on in this Court because there is nothing left to fight about.

MR GEBART:   Your Honour, I would argue that there are three independent points here because application for special leave to appeal was not linked to the sale of the house at any stage.

HIS HONOUR:   I understand that but the house, like anybody’s house, is fundamental and the loss of the house is fundamental, and if the house is lost, then maybe not all the point but much of the point of going on with the application for special leave disappears out the door.  That is the nub of this aspect of the point, is it not?  The house is terribly important, I understand that.  You do not need to persuade me of that.  The real point that worries me – and I want to come back at the three points you have made so far – is whether he has an arguable case.  Now, you have made three points and, as I say, I want to come back and talk to you a bit about each of those and we can discuss those and explore those a little, but is there any other aspect of the matter other than those three points that I need to be alive to at the moment?

MR GEBART:   Yes, your Honour.  I think that the sale of the house will probably not change the applicant’s position in the case of application for special leave to appeal because this is the matter of general justice and also has some social justice implications as it was noted in the leave – in the document specifying – asking for leave to appeal.  So, if the applicant loses his house, it actually does not change his attitude, as I know from him, in respect to special leave to appeal.

There is also another sort of pragmatic aspect, if your Honour allows me to talk about this.  Mr Cascone actually told applicant that he is trying to sell the house at lower – at the price which is below the market value and this is the verbal information given to me today.  The market value of the house is around 130,000 and Joe Cascone actually told the applicant and give something in writing that he is trying to sell this house for 80,000.

HIS HONOUR:   Is it going to auction?

MR GEBART:   It was not explained to the applicant and this is, your Honour, a sort of very disturbing element on the entire situation, that Joe Cascone was pretty unco-operative and I can even say hostile because I witnessed one of the discussions between the applicant and Joe Cascone and I witnessed a pretty hostile attitude of Mr Cascone; hostile, and I would say, discounting the applicant which is difficult.

HIS HONOUR:   I can readily accept that the relations between a trustee in bankruptcy and the bankrupt whose estate he is administering are never happy.  It is not a happy relationship, I know that, and each of them will inevitably see the one event and walk away with two very different views about what happened.  I understand that.  I do not think we are going to find it profitable to stay and examine that.  Bankrupts and their trustees never get on.

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   Yes.  Can I come back at these three points that you have made because I want to explore those a little.  First, the application for special leave is an application for leave to appeal from the decision of the Full Court that was made on 22 August last year in the annulment application.

MR GEBART:   Yes.

HIS HONOUR:   It is not directly an appeal against the order making him bankrupt, it is an appeal against the order refusing to annul the bankruptcy.

MR GEBART:   Precisely.

HIS HONOUR:   Now, that brings in, indirectly but only indirectly, what happened at that hearing where he was made bankrupt.  The Full Court dealt with that in a way which depended on their understanding of the material that was before the registrar.  The Full Court, I believe, said, did they not, that the medical certificate that was sent to the court in March 1998 was a medical certificate that he was unfit for work, not that he was unfit to attend court.  I am referring to paragraph 23.

MR GEBART:   Precisely.

HIS HONOUR:   Yes.  Now, in those circumstances, the Full Court said that they did not think that what happened was a departure from natural justice and they then went on to consider assets and liabilities, which is your second point, and decided that because of the nature of the orders which had been made in the Family Court, orders which I know Mr Stankiewicz has separate grievances about, his equity in the house could not be realised quickly.  Although on paper he had equity, it was paper equity rather than equity he could realise quickly.  Now, that is my understanding of what the Full Court said about that.

Then, on the third point, the question of his disadvantage:  any litigant in person, even if English is his or her first language, starts in court at a disadvantage.  I mean, you have only to sit as a judge for about 10 minutes to understand that a litigant in person starts at a disadvantage.  If English is not the first language of a litigant in person, those difficulties are not added to, they are multiplied.  They are multiplied by a very considerable factor and, again, you have only to sit in court for about 10 minutes to realise that that has happened.

Can I tell you thing that strikes me about the Full Court judgment?  They go through the various points about should the bankruptcy order have been made; should they have gone ahead without Mr Stankiewicz being there; they go through the complaints he made about Mr Plata’s conduct and they then go on to this question of assets and liabilities on the basis that this was not a point that Mr Stankiewicz had raised himself.  They say:

We should mention one issue that was not raised by the bankrupt either before the trial Judge or in his written submissions, but was referred to by the Court in oral argument on the appeal. 

I am reading from paragraph 26, page 7.  Have you got that?

MR GEBART:   Yes, thanks, your Honour.

HIS HONOUR:   What strikes me about that is that you have then a court that is trying to deal with the arguments that have been raised but also is doing its own search through the papers, saying, “Well, now, look, we have a man here who is not a lawyer.  We have a man here who is not only a lawyer, but we have got a man whose first language is not English.  We can’t expect him to find the points for himself because of that.  Well, let’s look at the papers ourselves and see if we can see that there is something there upon which he ought to be relying.”  And they, therefore, raise a point that he did not.

The point that strikes me about that is that you have a court then which, at least in its reasons, has done its best to try to get in under whatever Mr Stankiewicz has been able to communicate, try to get in under it and get to the hard core of the problem to see if there really is a point that he ought to be making.  Now, you have then the communication difficulty.  Almost inevitably, whatever happens in court, with a litigant whose first language is not English, that litigant goes out of court with much of what has happened having passed him or her by.  The grasp of English is not sufficient to enable the litigant to really be sure that they have understood everything that has been said.

Now, therefore, that being so, what struck me is, “Well, let’s have a look at the results.  Let’s have a look at what the court did.  Did they really try to burrow in and try to find out what was going on in this case?”  And that struck me when I read it, that they had tried to discover was there a real cause for complaint.  They got to the answer “no”.  Now, in those circumstances, is there an arguable case that this Court will take the case on on special leave to appeal.  I have tried to identify the points so that you can have a chance to answer them, to bring my attention to things that worry me or concern me so that there is that opportunity to say, “No.  What about this?”  “No.  Look at it from this angle, not that angle.”  Now, your turn.  I have done a lot of talking.

MR GEBART:   Thank you, your Honour.  I was trying to summarise your argumentation and I repeat these two points of my understanding, trying to have some clarification from your Honour.  The first point was basically made about the medical certificate which was supplied to the court and which was basically specifying the inability to work for an applicant.  The second argument is related to the calculation made by the court, as your Honour noticed, made by the court itself on some studies of the presented documentation.

So mainly I will concentrate on the first point first.  I think that the Court should follow rather the letter of law, not the particular small technical differences between, for example, the statement by the doctor that the person is not able to attend work, and between the statement that the person is not able to attend the court.  The fact is in this particular situation that Mr Stankiewicz was in hospital with the heart attack.  So I would say if we will try to follow the letter of law and to disregard – because I can see the point of the specific certificates – so if we disregard the fact that the certificate was actually not mentioning the inability to appear in court, my appeal to your Honour would be to consider the letter of law and the fact that the applicant was actually in bed and he was not able to attend anything.

I can understand why this sort of certificate has been issued, because, again, there was some problem in communication.  Probably the doctor did not know what Mr Stankiewicz wants and, therefore, the goal or the objective for issuing a certificate was not clear to the doctor, but nevertheless it was stating that he is in the hospital and there is a huge documentation which was shown to me several times by Mr Stankiewicz that he was obviously with the heart attack in the hospital so he could not attend anything.  Is this explanation satisfactory, your Honour, concerning the point one?

HIS HONOUR:   Well, that is the explanation you put forward.  Let us move on from there.  I am not going to give a quote as I go along.

MR GEBART:   Yes, thank you, your Honour.  So the second point was basically related to calculation made by the court that the costs, legal costs, which is mainly creditors claims, legal costs and so on, the trustee remuneration.  So most of these elements in the calculation are actually coming from the administration itself, as we concede, and all this unsecured costs and creditors, that is amounted to 20,000, to 20,000.  The half share of the house was calculated as having a net realisable value of 99,000 and, therefore, at the end of the paragraph 26 the court stated:

It follows that the bankrupt’s assets as at the date of the trustee’s report exceeded his liabilities –

most of which related to costs and the remuneration of the trustee.  So if you are looking at this statement, it is – according to my understanding of logic, it is very contradictory because why we can bankrupt the person who has obviously more assets than liabilities and why we can – is the second question and this is why we should it to the person who – whose debts are actually created by the situation itself, because most of this ‑ ‑ ‑

HIS HONOUR:   The difficulty lies in paragraph 27, in the last sentence in paragraph 27, whether the bankrupt’s equity in the home was realisable within a relatively short time, is, however, a different matter.  That is the bite.

MR GEBART:   This is a very good remark, your Honour.  Can I make a comment about this?

HIS HONOUR:   Yes.

MR GEBART:   So I think that it brings us in our observation of the case even further in the past and it actually links your statement with the fact that the applicant was not allowed to participate in the original session of the court because tentatively or hypothetically I would say if he were allowed to participate he would be able to offer some other solutions.  He would be able to pay this 5,000 because the debt was – at this stage was only 5,000 and if he would know, if he would have been informed by the court properly, “That if you don’t pay this debt, then this and this is going to happen to you and the house will be taken from you.”

Because the applicant was in a very bad state in the hospital he simply could not even think at this moment about any legal matters I suppose, especially the legal matters which were not properly explained to him and he was even not informed about the proceedings of the court.  So I think if you are touching this matter of costs, liabilities and the assets, we should consider the situation that in this original situation in which the applicant was deprived of his right to appear in the court and present some other solutions because, as I understand Australian law, in the bankruptcy situation the applicant has a right to present some other solutions:  “I can maybe borrow this 5,000.  I can ask my friends to give me 5,000, pay this off and there is no problem any more.”

In this particular specific situation to which his bad health contributed he was simply not able to do anything and he was not even able to go to the court.  So I entirely agree with your Honour’s remark that we should go back in the entire situation because it gives us back – for which I thank your Honour because it actually clarified my line of argument quite well, that we should look at the initial situation of bankruptcy, which was also, according to my understanding, a breach of natural justice.  The applicant was not given a chance to present his financial situation and also his options for solving the situation.

HIS HONOUR:   Yes.

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   Yes.  Yes, is there anything else then that you want to say, Mr Gebart?

MR GEBART:   If your Honour has specific questions I will ‑ ‑ ‑

HIS HONOUR:   There is nothing else I wanted to raise, but if there is anything else you wanted to say, now is the time.

MR GEBART:   I think that I will still speak in support of the application for interlocutory remedy because the case is very convoluted, as your Honour said to us, that it is convoluted.  It actually involves different complicated aspects at different levels and, therefore, in my understanding it would be prudent to really stop this final step and to wait for the final solution presented by the Court.

HIS HONOUR:   Yes.

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   Yes.  Sorry?

MR GEBART:   Mr Stankiewicz wanted to make a comment.  Is it possible, your Honour?

HIS HONOUR:   Yes, Mr Stankiewicz.  Probably irregular that do you so but let us have it.

MR STANKIEWICZ:    Mr Gebart explain.

MR GEBART:   Stop at this moment because there are three points and maybe I will make a quick translation of this.

HIS HONOUR:   Yes, Mr Gebart.

MR GEBART:   There are three points.  The applicant tries to attract our attention to the fact that at the very beginning the debt was about $1,000.  The costs were growing because there no proper processing by different legal instances of his case.  So at the very beginning there was $1,000 which was in dispute between the applicant and Mr Plata.  The applicant refused to pay this $1,000 because his understanding of the situation was that it was not correct to pay this money to Mr Plata because the applicant says – this is the second point – that Mr Plata somehow presented him with a handwritten or scribbled – rather scribbled document agreeing to 50:50 without explaining the applicant the agreement was in 50:50, whereas the applicant’s de facto did not ask for 50:50 because she asked for return of her input, which was something like $7,000.

So the situation was complicated, your Honour, from the very, very beginning because there was this sort of misunderstanding that the applicant should not be acted against by his own solicitor.  The solicitor should actually represent the interests of the applicant and asking and arguing for return of 7,000, to which the applicant agreed without any problems and he actually agreed to pay all costs and also the bank – how it is called – my English is also sometimes not extremely good ‑ ‑ ‑

HIS HONOUR:   You have done very well, Mr Gebart.

MR GEBART:   So in the sense the applicant was not allowed to really progress properly in this initial – we are going even further into the past.  This is this miserable document which was presented by Mr Plata to applicant and even I have difficulty in reading what is it, what is it about and what are the statements actually ‑ ‑ ‑

HIS HONOUR:   Can I say this, Mr Gebart.  By the time you get to this level of the court system we deal only with the issue of whether the Full Court was wrong.  We do not take fresh evidence.  We deal only with, “Was the Full Court on the material before it right or wrong?”  I need no persuasion that there lies behind this dispute, this immediate dispute, a very long history, a very long history in which I suspect Mr Stankiewicz feels that he has been very hardly done by.  Others may take different views of whether that is right or wrong.  In a sense, it is beside the point.  But I have

no doubt he thinks that he has at successive points along the way been dealt with very hardly.

MR GEBART:   Yes, your Honour.

HIS HONOUR:   At the end of the day I have to make a decision on what I have in front of me and to decide it according to principle, but I do not need any persuasion that his feelings are very deep and he thinks very well founded.

MR GEBART:   Thank you, your Honour.  If I can make a very small comment.

HIS HONOUR:   Yes.

MR GEBART:   This evidence is not new evidence.  It was actually presented by the defendants in the last affidavit.  So it was presented at this particular court.

HIS HONOUR:   This is the orders in the Family Court, is it?

MR GEBART:   Yes.

HIS HONOUR:   I have read that, yes, and I see what you say about that document.  It is a handwritten document with the imperfections that you point to.  Yes.

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Gebart.  Yes, Mr Green.  Assume for the purposes of your argument, Mr Green, that I approach it from the standpoint that if orders are not made the application for special leave is either worthless or worth far less than it otherwise would be.  It seems to me that the real area for debate is prospects of success in the application for leave.

MR GREEN:   Yes, your Honour.  Your Honour, might I just clarify one point in regard to the sale of the property.  I refer to paragraph 11 of Joe Cascone’s affidavit where he states the property is to be auctioned so as to realise – he also states in that affidavit that an estimate of the value of the property at $130,000.

HIS HONOUR:   Yes.

MR GREEN:   Your Honour has referred to the three points that Mr Gebart has made on behalf of the applicant in regard to the issues at stake, being the non‑attendance of the applicant at the hearing in March 1998, assets exceeding liabilities as at that date and lack of English or understanding of the legal system.  It is my submission, your Honour, that the documents filed by the applicant in respect of the application for special leave take the matters no further than were dealt with by either Justice Heerey or the Full Court in their determinations of these matters.  I do not know whether your Honour has actually referred to the various documentation lodged ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GREEN:   ‑ ‑ ‑ but there are general terminology used along the way of that natural justice has not been accorded to Mr Stankiewicz and that the fact that he has difficulties with the English language and in the notice of appeal further goes on to say that there is the issue, which has already been raised, as to non‑attendance at the hearing and the surplus of assets.

HIS HONOUR:   Just as to the surplus of assets, the position now revealed in the trustee’s affidavit is that there is a deficiency of only some 3,000 and yet at the time of the Full Court and its reference to September 1999, with a much less value of the house, it was thought that there was an excess of some 20,000.  The figures are a little striking, are they not?

MR GREEN:   They are, your Honour.  The reason for that being the substantial increase in the trustee’s remuneration and legal expenses incurred by the trustee in respect of the various proceedings commenced by Mr Stankiewicz.  When your Honour is also referring to the deficiency in the bankrupt estate, I should also point out that my instructions are that there are further expenses which have not been noted there, including the government charge of 8 per cent on receipts.  So it could well be that the estimated deficiency is even higher than that noted in Mr Cascone’s ‑ ‑ ‑

HIS HONOUR:   Which would make the movement all the more remarkable.

MR GREEN:   Yes, your Honour.

HIS HONOUR:   What strikes me is the amount of movement.

MR GREEN:   Yes, your Honour.  Well, your Honour, I cannot take that matter further other than that there is, as you are aware, a long history associated with this administration and therein lies the reason for the movement in the costs incurred.  Your Honour, it is my submission, talking only in respect of the application for special leave, that on the basis of the documentation and the grounds relied upon by Mr Stankiewicz, that the probability of a grant of special leave, in accordance with section 35A of the Judiciary Act, would appear highly improbable.

HIS HONOUR:   Do I understand that to be then a proposition that there is no point of general application and the interests of justice do not require it?  I think that the application for leave is put not as a point of general application.  The application for leave is put as the interests of justice in the particular case.  Circumstances for the grant of leave in such cases are, of course, impossible to define with any real clarity but in the end we need to bear in mind that it is special leave.  There must be something special about the case to attract the attention of the Court given the demands that the Court has.

MR GREEN:   Yes, your Honour, and your Honour has already referred to the judgment of the Full Court in which they have considered the various points which have been raised by Mr Stankiewicz in this further application.

HIS HONOUR:   Well, the question would be whether it was arguable whether the Full Court is wrong or, if that be not established, is it arguable that there was some want of procedural fairness, some denial of natural justice in those proceedings or underlying those proceedings?  Those are the questions.

MR GREEN:   Yes, your Honour.  I cannot take the matter further, your Honour.

HIS HONOUR:   Yes, thank you, Mr Green.  Now, Mr Gebart, is there anything you want to say in answer to what Mr Green has submitted?

MR GEBART:   Of course, some of…..actually indicated the fact that most of this costs which are counted – which had been counted in the previous proceedings are generated by the trustee and this is something like 70 or 80 per cent, therefore, showing that this costs are actually a core of the matter, at least as to some sort of strange circular logic that at the beginning there was an applicant with $1,000 of debt, then if the trustees were generating costs on the basis of his inefficiency to present to the case to the courts and also on his bad health grounds and then the costs generated are actually being used as an argument against him now.

So this is sort of striking example for me of circular logic, where the cause is actually presented as a result and there is a misdirection of argumentation in the sense of mixing up causes with results.

HIS HONOUR:   Yes.  Is there anything else you want to add?

MR GEBART:   Thank you, your Honour.

HIS HONOUR:   I think Mr Stankiewicz wishes to say something to you.  Yes.

MR GEBART:   I will translate.  The applicant is actually quite disturbed because he says that if he is able to sell this house he will be able to pay all these debts, which, again, is the argumentation which is very similar to the argumentation used by the Federal Court at the lower stage, that they said that assets are basically exceeding liabilities and the applicant made actually this remark in his emotional state, I would say, that he will be able to sell this house for 130,000, return all the costs and there will be no problem and he will be even left with some – several hundred – thousand – with several thousand dollars for his further life.

HIS HONOUR:   If that were to be done – just a moment, Mr Stankiewicz, just a moment - Mr Gebart, the point that that raises – and you may need to take a moment to just pause and explain this to Mr Stankiewicz.  That is an argument in favour of selling the house.  We are here debating whether I should stop the sale of the house.  If Mr Stankiewicz is right, then by selling the house, he can repay it all and there will be a surplus, fine, but we are debating whether the house sale should be stopped.  I understand why Mr Stankiewicz says this, but I do think we need to understand that.  You might just take a moment to translate, if Mr Stankiewicz feels it necessary, just what I have said.

MR GEBART:   So I will translate.

HIS HONOUR:   Yes, please.  Yes, Mr Gebart, if there is anything else that you want to say to me, now is the chance to say it.  I do not ask you to translate the communications with Mr Stankiewicz.  It is a question of whether there is anything more that you think ought to be said on his behalf.

MR GEBART:   Well, I think it would be all.

HIS HONOUR:   Yes.

MR GEBART:   Thank you.

HIS HONOUR:   Thank you.

The applicant seeks an interlocutory order that will prevent the sale of his interest in a house property at Werribee pending the hearing and determination of his application for special leave to appeal to this Court from an order of the Full Court of the Federal Court of Australia made on 22 August 2000. 

It is necessary to say something of the history of events and proceedings that lie behind the present application.  Some years ago, the evidence before me does not reveal exactly how many, the applicant retained the first‑named respondent, Mr Plata, to act as his solicitor in proceedings in the Family Court of Australia.  In 1995 those proceedings were settled but the applicant was, and still is, dissatisfied with the circumstances in which they were settled and he then made, and still makes, a number of complaints about Mr Plata’s conduct in that regard. 

The applicant pursued those complaints in the Legal Professional Tribunal of Victoria but in September 1997 that Tribunal determined to reject all of the claims that the applicant had made.  On 11 September 1997 it ordered the applicant to pay Mr Plata’s legal fees together with interest and costs.  Those orders of the Tribunal were registered in the Magistrates Court at Melbourne in October 1997.

Soon after registration of the orders in the Magistrates Court, the first respondent, Mr Plata, issued a bankruptcy notice with which the applicant did not comply.  That bankruptcy notice claimed an amount of $5,411.67 as the amount due in respect of the order of the Magistrates Court. 

In December 1997, Mr Plata issued a creditor’s petition based on the alleged act of bankruptcy of the applicant’s failure to comply with the bankruptcy notice.  That petition first came on for hearing in February 1998 but the applicant wrote to the court asking for an adjournment of the proceedings and he sent with the letter a medical certificate about his then medical condition.  The petition was adjourned to 11 March 1998.  Again, the applicant did not appear but he submitted a medical certificate which, so the Full Court found, recorded that he was unfit for work.  The certificate, according to the Full Court, said nothing about whether the applicant was fit to attend court.  A sequestration order was made on 11 March 1998, and the second respondent to the present proceedings, Mr Cascone, is the applicant’s trustee in bankruptcy.

Thereafter, there have been several proceedings to which the applicant and either Mr Plata or Mr Cascone have been parties.  During 1999 the applicant commenced proceedings in the County Court of Victoria against Mr Plata making complaints about the settlement in the Family Court.  Those proceedings were struck out.

In May 1999, Mr Cascone as trustee in bankruptcy, commenced proceedings for recovery of possession of the applicant’s interest in the property at Werribee.  The trustee obtained judgment in default in those proceedings and in June 1999 he issued a warrant for possession.  During the succeeding months the applicant sought to set aside that judgment for possession.

In the meantime, in August 1999, the applicant applied to the Federal Court of Australia for an order annulling his bankruptcy.  On 21 September 1999, Justice Heerey dismissed that application.  The applicant appealed from that judgment to the Full Court of the Federal Court.  The appeal was instituted well out of time but an order was made granting the necessary extension.  The appeal to the Full Court was dismissed on 22 August 2000.  It is from that order of dismissal that the applicant seeks special leave to appeal.  Thus it is from an order dismissing an appeal from an order refusing to annul the bankruptcy that the application for special leave is made.

In its reasons for judgment. the Full Court considered the matters which had been urged by the applicant in support of his contention that his bankruptcy should have been annulled.  Those considerations centred largely, though not entirely, upon the refusal to grant a further adjournment of the petition.  In addition, consideration was given to a number of the complaints that the applicant made about Mr Plata’s conduct in connection with matters which were said to have given rise to the judgment debt.  The Full Court decided that there was no reason to conclude that the Judge had erred in declining to grant an annulment.  Particular attention was given, in the court’s reasons, to the circumstances in which the sequestration order was made and to whether the court should have proceeded, as it had, to the making of an order of sequestration in the absence of the applicant.

In addition to considering these matters, the Full Court examined an aspect of the matter which had not, it seems, been urged by the applicant but which it considered relevant to the application for annulment.  There was some material before the Full Court which suggested that the value of the applicant’s equity in the house property on 13 September 1999, after the making of the sequestration order, exceeded the amount that the applicant then owed his unsecured creditors.  The court concluded, however, that this did not, in the particular circumstances of this case, constitute reason enough to annul the bankruptcy because the applicant was, in the court’s opinion, not in a position to realise the equity he had in the real estate within a reasonable time.  That was because of the nature of the orders that had been made in the Family Court proceedings in August 1995.  It is not suggested that this finding was wrong.

The application for special leave to appeal to this Court is largely directed to a contention that the applicant who, at all stages of the various proceedings I have mentioned, other than in the Family Court, has appeared without legal representation, has laboured under difficulties of communication and understanding for which the courts have made insufficient allowance thus leading to his being denied procedural fairness.  The application for special leave to appeal might be read as also seeking to agitate the issues that had been agitated in the Full Court, and I am content to deal with the present application on the basis that that is its intention.

For the purposes of argument, I informed the parties that I was prepared to assume that unless an interlocutory order was made restraining the proposed sale of the property, the subject matter of the application for special leave to appeal would have gone and the application would therefore be rendered either worthless or far less than otherwise would be the case.  It by no means follows from that consideration alone, however, that this is reason enough to grant the interlocutory relief which is sought.  No relief should be granted if, as the first respondent contended, the application is doomed to fail. 

It is necessary to approach that submission about the prospects of success of the application for special leave to appeal bearing well in mind that the applicant is not legally represented.  For the purposes of the present application he has been assisted by two persons, one of whom, Mr Gebart, has spoken on his behalf, but it is necessary always to bear at the forefront of my mind that the arguments that have been assembled and presented on behalf of the applicant have not been prepared or assembled with a background of legal training that might ordinarily be encountered in such applications.

It is then necessary to recall that the Full Court’s decision depended in part – perhaps a very large part - upon findings of fact which it is not open to the applicant to challenge.  I say that it is not open to challenge the findings of fact in this Court because those findings upon which the Full Court acted depended upon their understanding of matters of documentary record which are unchallenged.

It is, in my opinion, not fairly arguable that on those facts, the Full Court was wrong to conclude that it was not shown that the primary Judge had erred.  In particular, I do not consider it fairly arguable on the facts found by the Full Court that the circumstances in which the sequestration order were made were such as to require the Full Court to conclude that the Judge erred in declining to annul the applicant’s bankruptcy.

So far as questions of procedural fairness or natural justice are concerned, it is, in my opinion, of considerable significance that the Full Court examined not only the matters to which the applicant pointed as demonstrating reasons for an annulment of his bankruptcy but also considered a question which had not been agitated in the course of argument but which might have been said to go to the question of annulment.  In these circumstances, I consider that the prospects of the applicant succeeding in his application for special leave on this or the other grounds that I have mentioned are such that no injunction should go.

Before parting with the matter, however, mention should be made of one aspect of it to which the applicant referred in his summons but in respect of which oral argument was not further developed.  The sale proposed by his trustee will occur a little over three years after the making of the sequestration order.  It appears, however, that by that time the provisions of the Bankruptcy Act 1966 (Cth) providing for automatic discharge from bankruptcy will not have operated because the time for automatic discharge runs from the time of the bankrupt filing his statement of affairs. This he did not do until 1 March 1999. Nevertheless, even if, by the time of the sale, the applicant had been discharged automatically from his bankruptcy, that fact would not affect the entitlement of the trustee to dispose of an asset which was vested in the trustee upon the applicant becoming bankrupt.

For these reasons, in my opinion, the application should be dismissed.

Yes, is there any other application?

MR GREEN:   Your Honour, I would seek an order for costs in this matter.

HIS HONOUR:   Why should you have it?  Why should you add to the burdens of the unsecured creditors already standing in the bankruptcy?

MR GREEN:   In this case, there has been a history of applications made by the bankrupt to various courts which the trustee and the petitioning creditor are bound to defend and in the normal course of events, in the event that the applicant is not successful, costs generally flow to the successful party.

HIS HONOUR:   As costs recoverable in the bankruptcy?

MR GREEN:   Yes, your Honour.

HIS HONOUR:   Yes.  Not against the applicant personally?

MR GREEN:   In the bankruptcy, your Honour.

HIS HONOUR:   In the bankruptcy and the estate is deficient now, so it is a question of diminishing the dividend otherwise payable across the board.

MR GREEN:   I accept that it may well appear somewhat academic, your Honour.

HIS HONOUR:   Yes.  Well now, Mr Gebart, an application is made for costs.  Is there anything you can say against it?  It will be costs that will be ordered in the bankruptcy and they will simply take their place amongst other unsecured creditors.  It is not against the applicant personally today, as it were, it is against his bankrupt estate.

MR GEBART:   May I speak?

HIS HONOUR:   Yes.

MR GEBART:   The only argumentation which can be presented here is that the applicant met a series of unjust decisions made by different courts and I would appeal to your Honour to consider that he has been ruined completely, and he is an old man on the pension.  So, as it was discussed before, all these costs and all the bankruptcy matter was actually created by the other party because at the beginning there was only $1,000 debt.  I would ask your Honour to consider the possibility of not allocating the costs on the applicant.

HIS HONOUR:   Yes, thank you, Mr Gebart.

The respondent seeks his costs.  Costs ordinarily follow the event.  To order costs will, in the applicant’s view, simply heap further injustice upon a series of unjust decisions.  Nevertheless, in all the circumstances, there is, I think, no choice except to order that the summons be dismissed with costs.  I will adjourn.

AT 11.58 AM THE MATTER WAS CONCLUDED