Tucker v ANZ Banking Group Ltd

[1997] HCATrans 285

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 3504
  A  28.10.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M81 of 1997

BETWEEN:  MOIRA FRANCES TUCKER

-and-

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

HAYNE J (In Chambers)

AT MELBOURNE, FRIDAY THE 17TH DAY OF OCTOBER 1997

AT 10.30 AM

MRS S.L. MARKS:  I appear on behalf of the respondent (instructed by Corrs Chambers Westgarth).

HIS HONOUR:   Yes, Mrs Marks.  Ms Tucker, you are appearing for yourself, are you?

MS TUCKER:   Yes, your Honour.

HIS HONOUR:   Would you be good enough to come forward to the bar table, please, Ms Tucker?   Now, Ms Tucker, you are appearing for yourself this morning, is that right?

MS TUCKER:   Your Honour, I ask leave that I may have a next friend.

HIS HONOUR:   I am terribly sorry, Ms Tucker.  I just could not hear.

MS TUCKER:   I ask leave - sorry. 

HIS HONOUR:   No.

MS TUCKER:   I ask leave, please, that my next friend may come to assist me.

HIS HONOUR:   Yes, by all means. 

MS TUCKER:   There must be a way of doing it ‑ ‑ ‑ 

HIS HONOUR:   You cannot work - you cannot work ‑ ‑ ‑ 

MS TUCKER:   There must be.

HIS HONOUR:   No, you cannot work without your papers, Ms Tucker, I know that.  Now, Ms Tucker, again in accordance with practice I would propose to set time limits for the presentation of the argument.  Again I would propose to impose limits of 20 minutes.

MS TUCKER:   Your Honour, firstly, I ask that I be allowed to hand up an affidavit.

HIS HONOUR:   Yes.  Has Mrs Marks seen it yet, Ms Tucker?

MS TUCKER:   No.  I would like to make some further comment about the affidavit in a moment if you do not mind.  I also ask leave to hand up a very draft copy of an application, summary of argument.

HIS HONOUR:   Yes.

MS TUCKER:   It is missing holes in it, for instance cases cited and things because I had exactly two days to make it.  I hand that to you only.

HIS HONOUR:   The affidavit should go to Mrs Marks.

MS TUCKER:   I ask ‑ ‑ ‑ 

HIS HONOUR:   And - yes?

MS TUCKER:   ‑ ‑ ‑ to make a comment on it before I hand it.  I would like to make a submission.  I would like to make a submission that the deponent that the knowledge of the identify of the deponent be kept from the respondent.

HIS HONOUR:   That is a bit difficult I am afraid, Ms Tucker.  Ordinarily speaking at least, firstly, the Courts do their business in public and secondly, the Courts do their business with both parties knowing what is happening.

MS TUCKER:   I have no objection ‑ ‑ ‑ 

HIS HONOUR:   Why should - yes?

MS TUCKER:   ‑ ‑ ‑ and it will be by implication it will be obvious, the general - it is the actual name of the person I wish to have withheld.  Who they are will be apparent.

HIS HONOUR:   Does it - why should the name of the deponent not be apparent?

MS TUCKER:   Because the respondent to date has been harassing my tenants.

HIS HONOUR:   Well, Mrs Marks, what do you say about my looking at the affidavit, at least in the first instance and see where we get to from there?

MRS MARKS:  I have no difficulty with that, your Honour.

HIS HONOUR:   Yes.  Perhaps if you would hand it up, Ms Tucker.  As to the outline of argument, Ms Tucker, that undoubtedly should go to Mrs Marks, should not it?

MS TUCKER:   That is not a problem, if I can find it.

[11.21am]

HIS HONOUR:   Well, I have looked at the affidavit, Ms Tucker.  Without, for the moment, going to who the deponent is, as I understand it, it is an affidavit which would go to the importance of your remaining in the premises, not simply for yourself but for others.  Does that capture the nub of it?

MS TUCKER:   Yes.

HIS HONOUR:   Well, again, I think it would be useful if, for present purposes, we assumed: (1) the property is unique; (2) it is where you live; (3) it is property the only source or at least the substantial source of any income you may have, and if the property is sold you lose your home, you lose your income, and you lose everything that goes with the word home.  Does that capture the essence of that sort of point?

MS TUCKER:   Yes.  I am quite happy to accept that and not argue.

HIS HONOUR:   Right.  Well, I do not think I need the affidavit to persuade me at the moment of any of those matters and if you want to press the question of the affidavit we might deal with it but I think for the moment could you focus for me on why it is the special leave application would likely succeed?

MS TUCKER:   Your Honour.  Thank you.  Might I suggest that with the spelling mistakes and grammatical errors and holes it may ‑ ‑ ‑ 

HIS HONOUR:   If I read this?

MS TUCKER:   Yes.

HIS HONOUR:   I will sit and read this and Mrs Marks has the summary of argument does she?  Yes, I have read that thank you, Ms Tucker.  Now, the nub of it is perhaps twofold Ms Tucker.  The Court of Appeal said, as I understand their reasons, that on the question of unconscionability there was no evidence at the trial that the bank knew of any of the difficulties that you say you were labouring under at the time the mortgage was made.  There was no evidence of your circumstances before the Master.  There may or may not have been before the judge.  But on the assumption that it was before the judge, there was nothing to show that the bank, in effect, knew that they were taking advantage of you?

MS TUCKER:   That is obviously, I would argue, not true, your Honour.  If you look at the bank's own evidence - I am afraid I haven't got it all.  In the - some of the evidence which was put into court, into the Appeal Book, there was a particular diary entry which I questioned.  I asked to see the original.  I have never seen it.  However, in that diary entry, which I may have, it talks of my being of having a sickness benefit at the time.  The bank did know of my personal circumstances.  They knew my family.  They knew my husband.  They knew myself.  And they have never given any argument that they didn't know of these circumstances, your Honour.  There is in fact a mistake in the transcript of Kenny, Winneke and ...(indistinct)... JJ judgment, which I have raised with the Court of Appeal, which I understand is to be fixed.  It says that at that stage I had been sick for a few weeks, not that I had been actually sick seriously for quite some time and been hospitalised.  The bank however did know this.  There was no argument that the bank did know this.

HIS HONOUR:   Well, the second part of the difficulty which I think you must confront is - first part being - is there evidence of all this?  But the second part is whether that raises any question of general importance or otherwise raises a case that is appropriate for this court to deal with?

MS TUCKER:   I do believe it is and I do believe, your Honour, that it is particularly for the area of the High Court to deal with.  The lower courts are, I believe, not as willing as the High Court or not as able as the High Court to actually explore new areas and it is in precisely this area which I seek for the court to examine the case in an area of - as far as I am able to find - looking at a special disability in terms of the illness.  And this is exactly what it was and special circumstances arising from my own - and I may be incorrect - I find no legislation exactly in that area.  But I do believe that the legislation and the law to date point to the direction that that should be an area which is considered.

For instance, your Honour, the Trade Practices Act talks about areas of special disability but there has only been, as far as I can see, tested in very limited circumstances.  I do not claim to be illiterate, uneducated or have English as a second language.  I do however claim that at the time that this mortgage - which was a re-write of an original mortgage which you will notice - I was in no fit state to decide what to have for lunch.

HIS HONOUR:   Yes.

MS TUCKER:   So please - I've - allow me to at least present my argument for special leave.  Thank you.

HIS HONOUR:   The present application is only the one about stay?

MS TUCKER:   Yes.  If I do not ‑ ‑ ‑ 

HIS HONOUR:   I am not going to ‑ ‑ ‑ 

MS TUCKER:   ‑ ‑ ‑ yes, what I am trying to say is, please - also as you notice in that draft, I have been to court - I can't remember - 12 times I think.  And each time I have come ‑ ‑ ‑ 

HIS HONOUR:   Once every three weeks I think you said.

MS TUCKER:   Yes, it was getting a little - and each time I've come to court obviously I have had to file documents, I've had to serve things, which may not sound particularly difficult, but I do live in the country.  I have very limited means and I really am unwell.  It has been an extraordinary battle so in fact probably what has happened is on my previous occasions I probably have been nowhere near as well prepared as I should have been.

HIS HONOUR:   I would not condemn yourself in that way, Ms Tucker.  No-one who has ever been associated with the courts will deny the proposition that there are many costs of litigation, most of them financial, but most importantly also, very significant emotional costs.  Anyone who has ever had anything to do with the law recognises that fact and I certainly do not need persuasion of it.  It is very large.

MS TUCKER:   I am sorry?

HIS HONOUR:   It is very large.

MS TUCKER:   Yes.  And I think possibly to some extent, certainly from the affidavit I handed up to you, you can see part of my motivation.

HIS HONOUR:   Just as to the affidavit; I think if you are to insist upon the name of the deponent remaining confidential I would not receive the affidavit.  I might add however, Ms Tucker, that I have looked at it.  It is, I think, a subject matter which does not loom large in my consideration at the moment.  I do not think you will either advance or retard your case according to what you do.  But if you wish to maintain the confidence of this person I should return the affidavit to you.   Now, is there anything else you would wish to add in support of your argument that the special leave application has substantial prospects of success?

MS TUCKER:   I do not know what I have written where now.  Really, to reiterate that as far as I understand, special leave application will be considered for the reasons in Bundy v Royal.  The only thing - are you asking me to give you further reasons why I think that special leave application will be granted or why you should give me a stay?

HIS HONOUR:   At the moment, why special leave should be granted, because unless the application has a substantial prospect of success then principle suggests that the stay should be refused.

MS TUCKER:   I believe it has got a substantial prospect of success for the grounds stated, that it is an area of law which is clearly identifiable.  It is clearly obvious in - it is clearly obvious to me that there are areas of the legislation which are applicable.  It is certainly of public interest.  There was an error in that the lower court could have - should have ruled differently. 

HIS HONOUR:   I think I understand the argument you advance, Ms Tucker.  Can I just say this to you?  It is important that you understand it.  Every person who has ever appeared in court walks out of the courtroom and according to their constitution, either within the first five minutes after they have walked out or in the case of some of us, more likely at three in the morning, next morning, will think of what should have been said.  Do not let yourself fall for that trap.  I understand what you are telling me.  I understand why you are telling it to me and I have listened carefully of course to what you have said.  But I have also read carefully the papers.  But is there anything else you wish to add?

MS TUCKER:   Can I suggest there is about a three o'clock ...(indistinct)... when I have had the obligatory red wine to cheer myself up.

HIS HONOUR:   That is something I will not go into, Ms Tucker.  Yes, thank you very much.  Is there anything else?

MS TUCKER:   I really think not.  I would however ask that I can draw your Honour's attention to a particular case?

HIS HONOUR:   Yes, which is?

MS TUCKER:   And if I could find what I have written in relation to it it would do even better.

HIS HONOUR:   Which is the case for a start?

MS TUCKER:   I will have to take my glasses off so I can read.  I am sorry.  It is the High Court of Australia.  It is Jago.

HIS HONOUR:   Yango Pastoral?

MS TUCKER:   No.  Jago, J-a-g-o.

HIS HONOUR:   Yes.

MS TUCKER:   I only brought one copy I am sorry.

HIS HONOUR:   Yes.

MS TUCKER:   It was before the High Court, before Mason, Brennan, Deane, Toohey and Gaudron JJ.

HIS HONOUR:   Yes.

MS TUCKER:   In October 89.  And it was actually a man seeking a stay - he was actually seeking a permanent stay but it was in relation to criminal proceedings.  However, I feel that the reason - that the arguments that were put forward are in fact valid in this case if you wish to hear them?

HIS HONOUR:   Yes.  If you read me the passage on which you rely.

MS TUCKER:   The reasons that I do feel - I think I feel - have a right to apply to the - I have a right to apply for special leave.  The court decides if I may appeal.  However, if a stay is not granted until special - until the special leave application is heard the subject matter will disappear because it becomes damaged.  It would therefore be an abuse of the process if the stay were not granted.  The court is here for the jurisdiction of justice and it would be an injustice.  And this is basically what it says.  It says:

It is clear that Australian Courts possession inherit jurisdiction to stay proceedings which were an abuse of process.   Subject to statutory provisions to the contrary a court also possesses the power to control the said ...(indistinct)... proceedings brought to its jurisdiction and that power includes power to take appropriate action to prevent an injustice.  But it may be an injustice in the context that have limited meaning.  The power is not to be confined to closed categories.  The criteria for determining the amount of injustice in the civil case will obviously differ from that of a criminal case.  The note to the proceedings, not their formal classifications, is what is important.  The court has not yet decided - the court has to decide whether the power to prevent abuses of process extends to power to prevent unfairness generally.

And this is what I actually feel ...(indistinct)...

HIS HONOUR:   Yes, thank you, Ms Tucker.  Yes, I will not trouble you, Mrs Marks.  Moira Frances Tucker applies for a stay of a judgment of the Supreme Court of Victoria pending the hearing and determination of her application for special leave to appeal to this court.  On 24 August 1995 the Australia and New Zealand Banking Group Limited commenced an action in the Supreme Court of Victoria seeking to recover possession of some land at 16 Gibson Street, Moe.  That land comprises not only the home of Mrs Tucker but also some other parts of the property are let by her as a source of income to her.

Australia and New Zealand Banking Group alleged that Ms Tucker had mortgaged the land to it by an instrument dated 20 November 1991, and had not paid all that was due under the mortgage.  Summary judgment was given in the action on 10 February this year by a Master of the Supreme Court.

Ms Tucker appealed to a judge but that appeal failed.  She then appealed to the Court of Appeal.  That appeal, too, was unsuccessful.  She applied to the Court of Appeal for an order staying execution of the judgment pending application for special leave, but that application for stay was refused. 

The jurisdiction of this Court to order a stay pending hearing and determination of an application to it for special leave is undoubted.  It is, as I said earlier this morning, in connection with another matter, a jurisdiction that has been described as "an extra-ordinary jurisdiction which will only be exercised in exceptional circumstances".  Gerah Imports Pty Limited v The Duke Group Limited, 119 ALR 401 at 403 per Dawson J.

In deciding whether to grant a stay pending application for special leave it is important to consider whether the application enjoys a sufficient prospect of success to warrant that step.  For present purposes I am prepared to assume that the property which is the subject of this judgment is unique and of unique value to Ms Tucker.  If execution is not stayed possession of it will pass to the bank and presumably the bank will proceed to sell it. 

I am, however, not persuaded that this application for special leave does have sufficient prospects of success to warrant the granting of a stay.  Ms Tucker's application for special leave seeks to raise seven grounds;  namely:

"(a)the ANZ Bank acted unconscionably at the time of the execution of the mortgage of 20th November 1991.  The bank knew of Mrs Tucker's disability, including her illness and personal circumstances, and acted for their own gain with no consideration for that which is fair and equitable.  The mortgage therefore should have been seen as no contract and void;

(b)the Bank abused a position of trust and expertise;

(c)the Bank wrote a contract which it knew to be impossible for Mrs Tucker to comply with.  It was aware that the financial commitment was beyond the resources of Mrs Tucker to meet, and wildly exceeded the bank's own guidelines;

(d)the mortgage documents were improperly executed;

(e)the mortgage repayments were not in arrears at the time possession notice was served;

(f)the evidence tendered by the bank was inadmissible;

(g)the bank did not proceed according to the Supreme Court Rules."

As it emerged in the course of argument this morning, the principal point which Ms Tucker seeks to agitate by her application for special leave is the question of unconscionability that is mentioned in grounds (a), (b) and perhaps (c).  These matters were dealt with by the Court of Appeal when in the course of the reasons for judgment it was said, after considering whether a particular affidavit was before the judge who heard the appeal from the Master:

At best that affidavit provided some evidence that prior to executing the mortgage Mrs Tucker had been suffering from depression and that members of her family were ill or elderly and frail.  There is, however, no evidence that the bank has been guilty of conduct which would make it unconscientious for it to rely on its rights under the mortgage.

There are in the light of that holding by the Court of Appeal two significant hurdles in the way of a conclusion that the point which Ms Tucker seeks now to agitate is a point likely to attract the grant of special leave to appeal.

First, as I would understand the reasons for judgment of the Court of Appeal, the contention of Ms Tucker that the bank acted unconscionably was rejected in part, perhaps wholly, on the basis that there was no evidence of such lack of conscientious behaviour.  It may be then that the case is one which turned entirely on its own facts as revealed in the evidence which was adduced.  But even if the factual basis which Ms Tucker would seek to contend for were to be found, there would, in my view, still be a further significant hurdle to the success of any application for special leave;  namely, that the appropriate principles have been the subject of consideration by the Court in relatively recent times.

Ms Tucker said all that could be said in support of her application for special leave.  Her documents about which she was less than flattering were documents that identified with care and commendable precision the point which she sought to agitate.  The difficulty for her is that in my view no point of principle is sought to be raised by any of the grounds of the application for special leave.  Most, perhaps all of them, raise purely factual questions which were resolved against the applicant in the Courts below.

In the circumstances I am of the view that there is no substantial prospect of the application for special leave succeeding.  That being so, I am of the view that the application for stay of execution should be refused.  The application will therefore be dismissed.  Mrs Marks?

MRS MARKS:   Your Honour, I seek costs of that application, they follow the event.

HIS HONOUR:   Yes.  Ms Tucker?

MS TUCKER:   Your Honour, I seek that you order that the costs be held in Court until at least my special leave to appeal is heard.

HIS HONOUR:   Yes.  The costs would ordinarily follow the event, Ms Tucker, and there is in my view no reason why they should not.  If some question were later to arise about the fixing of those costs and their taxation before the special leave application were to come on, if it is to come on, then those are matters we may perhaps have to confront at that point.  For the moment I will order that the application is dismissed with costs.  I will certify for the attendance of counsel.

AT 11.49 AM THE MATTER WAS ADJOURNED
INDEFINITELY