Taylor v Commonwealth Bank of Australia

[2007] HCATrans 198

[2007] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No M14 of 2007

B e t w e e n -

MELVYN GREGORY TAYLOR

Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Summons for reinstatement

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 MAY 2007, AT 12.01 PM

Copyright in the High Court of Australia

MR M.G. TAYLOR appeared in person.

MR R.D. SHEPHERD:   If the Court pleases, I appear for the respondent.  (instructed by Gadens)

HER HONOUR:   Again, you are requiring an extension of time, Mr Taylor?

MR TAYLOR:   Yes, your Honour.  I am waiting on a reply back from the Victorian Bar Council.  I have applied to send them further documentation on about 15, 16 April and that is what I am waiting on.  I require another 28 days, please.

HER HONOUR:   Yes, yes.  Yes, Mr Shepherd.

MR SHEPHERD:   Your Honour, the application is opposed.  We have already just taken you to the principles upon which I opposed the last application so I will not waste the Court’s time by rehearsing that, but as a matter of courtesy to the applicant I have a copy of the decision in Gallo v Dawson.

HER HONOUR:   Yes.  Thank you, Mr Shepherd.

MR SHEPHERD:   Now, in relation to the matters that his Honour Justice McHugh considered relevant in respect of the application in Gallo, the history of the Supreme Court proceedings, in my respectful submission, has been redolent with delay on the part of the applicant.

HER HONOUR:   Just how long has that been continuing, that litigation in the Supreme Court?

MR SHEPHERD:   It was issued in 2005.  It is an application for possession and debt made by the Commonwealth Bank as mortgagee and at present, your Honour, we are still getting to the point where we have not got a trial date.  Perhaps in certain circumstances one would look at the matter and say, “Why is that?  Is it delay on the part of both parties?”  In my submission, it is clearly delay caused by the several applications to which Mr McCleave refers in his affidavit.

HER HONOUR:   What was the order made then by Justice Hollingworth?

MR SHEPHERD:   The order made by Justice Hollingworth, which was the subject of the appeal to the Court of Appeal, was that the application by the applicant, Mr Taylor, to set aside the order of Justice Gillard be dismissed with costs to be paid by the defendant to the plaintiff and ‑ ‑ ‑

HER HONOUR:   What was Justice Gillard’s order?

MR SHEPHERD:   Justice Gillard’s order was that the appeal of the applicant be dismissed with costs.

HER HONOUR:   And that was an appeal from?

MR SHEPHERD:   From the decision of Master Evans at the very first instance, if one can use that expression, which was the refusal of three applications made in the applicant’s summons of 19 December 2005 which were on any view hopeless applications, as the Court of Appeal found, because what was sought in them could not be granted.  If I may emphasise the point, in this case as a result, the application for special leave has no prospects of success and ‑ ‑ ‑

HER HONOUR:   When you say “could not be granted,” they were seeking relief which was not available or what?  Just let me understand the particulars of that.

MR SHEPHERD:   Certainly, your Honour, if I may assist your Honour.  Exhibit JMC-2 to the affidavit of Justin McCleave sworn 15 March 2007 ‑ ‑ ‑

HER HONOUR:   Just give me a moment to find that exhibit.

MR SHEPHERD:   Certainly, your Honour.  Sorry, it is JMC-1.  I apologise, your Honour.  That is the copy of the summons of the applicant which was returnable for the Master.  The relevant orders sought, your Honour, were (1) that the whole of the order of Master Evans on 21 October 2005 be set aside.  That was an order for substituted service of the writ and the applicant had filed an appearance to the proceeding which was not an unconditional appearance.  So accordingly, that was a hopeless application.  He also sought in paragraph 3 that there be an order made that leave be granted to the defendant to allow the files, documents and material referred to in proceedings No V204 of 2001 in the Federal Court Registry at Melbourne, Victoria, to be adduced into these proceedings.  So what he was seeking was in Supreme Court proceedings access to documents which were in another proceeding in the Federal Court.  Accordingly ‑ ‑ ‑

HER HONOUR:   But you would approach the Federal Court for leave, would you not, under Columbia Records, I think is the name of the case.

MR SHEPHERD:   Yes, and naming those persons in that proceeding as respondents.  So accordingly, again, that was hopeless from the outset.

HER HONOUR:   Have the merits of the case ever been determined?

MR SHEPHERD:   No.

HER HONOUR:   So that if the application for extension of time is refused today, Mr Taylor at some time in the future will have whatever appeal points are available in relation to the merits of the case?

MR SHEPHERD:   Yes, he can ‑ ‑ ‑

HER HONOUR:   These are all interlocutory matters of one sort or another.

MR SHEPHERD:   They are, absolutely.  They are interlocutory applications.  He can continue to ‑ ‑ ‑

HER HONOUR:   They could be reserved, could they not, as appeal points when a determination on the merits is made?

MR SHEPHERD:   All of his appeals have been dismissed, so all of the interlocutory orders that were the subject of appeals have been dismissed.  So when it ‑ ‑ ‑

HER HONOUR:   All of them.  I see, yes.

MR SHEPHERD:   When it got to the point where on 1 December 2006 the Court of Appeal was considering an application for leave to appeal out of time, that was only against the orders of Justice Hollingworth made on 29 September 2006, one of which was just to get the proceeding going, to expedite that.  Secondly, seeking to set aside the order of Justice Hollingworth, who had refused the application to set aside the order of Justice Gillard when the applicant did not appear.  So they are all interlocutory matters.  The applicant can fairly get on to defend the proceeding to the extent he can if he complies with the rules and complies with the orders of the Court.  So I return to my main point, which is there is absolutely no prospect of success.  They are the matters which I wish to submit.

HER HONOUR:   Yes.  Mr Taylor, I was just asking Mr Shepherd some questions in order to establish that if your extension today is refused, that you would still have ‑ ‑ ‑

MR TAYLOR:   I would be in a very awkward position.

HER HONOUR:   You would still have an opportunity to appeal whatever final decision is made on the merits of the application, as distinct from expending money and effort on interlocutory matters.

MR TAYLOR:   See, if I can get legal advice and get – like here today in this thing there is a lot of complex situations.  If I can get this pro bono I should be able to have my submissions in in 28 days.  So it was about 15 or 16 April I sent it, so they generally take about a month.  So I should have that and I should be able to have time to get that done.  It has been going a long time, your Honour, so 28 days is not going to make very much difference.

HER HONOUR:   Is it contemplated that you will then appear for yourself on the special leave application?

MR TAYLOR:   No, I want pro bono.  That is what I am waiting on, the pro bono application to rely on.

HER HONOUR:   In circumstances where the pro bono assistance is not forthcoming, what would you be proposing to do, Mr Taylor?

MR TAYLOR:   I would have to try and put some submissions together myself, but the letter I got – I have not got it with me today.  I think I left it with Justice Williams, but they seemed pretty keen.  They wanted to help me.  I just supplied the chronology, my financial situation and various other documents and I already sent that off, so I am just waiting on that.

HER HONOUR:   This is an application for special leave requiring an extension of time.  The applicant seeks special leave to appeal against the judgment of two judges of the Supreme Court of Victoria who dismissed the applicant’s application for leave to appeal out of time against interlocutory orders made by Justice Hollingworth. 

The applicant asserts that it was a denial of natural justice in the light of the fact that he was unrepresented and the respondents had legal representation.  Mr Shepherd appeared as counsel for the respondent and contended with considerable force that the applicant has pursued numerous appeals in respect of interlocutory rulings in his litigation in the Supreme Court in circumstances where such appeals had little real prospect of success.

Mr Taylor submitted orally that he has approached the Victorian Bar Council and believes he has good prospects of receiving pro bono assistance.  He asks for an extension of time until 8 June 2007 in which to comply with the Court’s Rules.  No other excuse was proffered by Mr Taylor in relation to his need to seek an extension of time.

In all the circumstances it appears appropriate to order:

1.If on or before 4.00 pm of 8 June 2007 the applicant files his draft notice of appeal and written case in support of his application for special leave, the application for special leave is not to be deemed abandoned.

I should indicate that it seems appropriate to further order in the circumstances here that the respondent’s costs of today should be paid by the applicant.

MR TAYLOR:   You cannot reserve that in the special leave to appeal like in the previous case?

HER HONOUR:   Mr Shepherd, can you give some assistance here?

MR SHEPHERD:   Certainly, your Honour.

HER HONOUR:   The costs could be reserved to be costs in relation to the application for special leave, which does not deny but rather postpones your present application.  There has been no real excuse proffered by Mr Taylor which makes this application different from the previous application.  Nevertheless, that is a possible course of action which he is asking me to follow.

MR SHEPHERD:   I would oppose that, your Honour.

HER HONOUR:   Because?

MR SHEPHERD:   The applicant, with respect, just barely got over the line, looking at his affidavit in support.  All he basically said was who he was and his position.  He really did not explain the delay.  So it was appropriate that we come before the Court to oppose this application.  It was also a matter in which, in my respectful submission, your Honour is in the best position to consider the argument about costs, so for that reason there is really no basis upon which your Honour should reserve them to the costs of the appeal.  There is nothing we could have done to avoid it in all the circumstances.  So I seek the costs and that there be a certificate for counsel.

MR TAYLOR:   Yes, your Honour, getting back to – this goes back past Master Evans’ order.  Now, these people come and stole my house on somebody else’s possession order.  Now, I went back and took the house back, back in 2004.  I have been there for three years and they knew where I was all the time and they went and got substituted service.  Before that they tried to get possession before Justice Finkelstein on a defunct rule.  The rule was repealed back in 1984 or 1987 and it is what you call a restoration possession order.

HER HONOUR:   I should tell you, Mr Taylor, it is not appropriate for me to hear the merits of the case.

MR TAYLOR:   No, this is not the merits.  This is why – and it has made it very hard.  They stole my house and it is my hardship and I have been ill and that is why I want my costs reserved because this is a very special case, this one.

HER HONOUR:   Yes.  Having heard from both Mr Shepherd and Mr Taylor I propose to order that the respondent’s costs of today should be paid by the applicant and if necessary I would grant a certificate for counsel.  Thank you, Mr Taylor.

MR SHEPHERD:   If your Honour pleases.

AT 12.22 PM THE MATTER WAS ADJOURNED