Valassis v Bernard

[1999] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S163 of 1998

B e t w e e n -

DENNIS VALASSIS

Applicant

and

ERIC BERNARD

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 1999, AT 10.45 AM

Copyright in the High Court of Australia

MR D. VALASSIS:   I appear in person, your Honour.

MR M. ORLOV:   May it please the Court, I appear for the respondent.  (instructed by Gray Perkins)

GUMMOW J:   We thought there was going to be no appearance, but there obviously is.  Yes, Mr Valassis.

MR VALASSIS:   Thank you, your Honour.  These proceedings was a tenancy matter and we have been before to the Residential Tenancy Tribunal.

GUMMOW J:   Yes.  We have read the papers, Mr Valassis.  Now, the matter got before Justice Dowd in the Supreme Court on a question of law, is that right?

MR VALASSIS:   Yes, sir, and we penalised to the Court of Appeal.  The Residential Tenancy Tribunal, your Honour ‑ ‑ ‑

GUMMOW J:   Now, you needed leave to appeal to get to the Court of Appeal, is that right?

MR VALASSIS:   Yes.

GUMMOW J:   And that was refused?

MR VALASSIS:   Yes.  I have been to the Court of Appeal, yes.

GUMMOW J:   Yes.

MR VALASSIS:   Well, what I have to say, your Honour:  this matter is really a small matter and involves small money and we should never come in in the High Court of Australia, but the reason which I come in here, your Honour, is there is an intention to demonstrate your Honours were not impartial to the applicant.  I am not allowed to bring witness to prove the case and also in every respect the Sheriff statutory declaration and these proceedings before the Residential Tenancy Tribunal was a disadvantage for the applicant and this forced me to appeal to the Supreme Court.  Also, the Tribunal, they refused to bring witness and refused the statutory declaration of the Sheriff and advised me to appeal to the Supreme Court.  This was not a matter – and advised to go to the Supreme Court.

Now, your Honour, I have to…..to the foundation on this matter, your Honour, how the Tribunal handled this particular matter and we have analysed them here which was completely in the wrong.  Now, on 24 September ‑ ‑ ‑

GUMMOW J:   Now, what you are saying would be to the point, Mr Valassis, if you had obtained the special leave and this was the hearing of an actual appeal, do you follow me, but you have to persuade us that you should get the case here.  To do that you have to persuade us that the Court of Appeal of New South Wales was wrong in refusing you leave to appeal from Justice Dowd’s decision and what is the error that the Court of Appeal made in misapplying its rules as to when it grants leave to appeal, you see.

MR VALASSIS:   Your Honour, this is the end of the matter.  I have to say the reason which I appealed from the Tribunal, and this is the evidence which I have to say to the Court, your Honour, and, please, with your permission, I want to start talking of the case.

GUMMOW J:   Well, I am just telling you what is on my mind which I should do.

MR VALASSIS:   I realise that but I feel, myself, necessary to report to the Court, your Honour, what happened in the Tribunal and why I appeal against this particular decision.  Now, on 24 September 1997 we had been to the Tribunal before the Registrar of the Tenancy Tribunal.  The Registrar terminated the tenancy agreement on 13 September.  The documents they say, with consent.  This was without consent and the Registrar – I have no idea how she make this particular day, 13 September 1997 because the lease for six months was from 5 March 1997 to 3 September 1997.  Now, at this particular day ‑ ‑ ‑

CALLINAN J:   Mr Valassis, you had to show that there was a point of law when you applied to the Court of Appeal.  Now, in what way do you say that the Court of Appeal failed to have regard to a point of law that you say arose and to which the Court of Appeal should have had regard?  Not facts, but law.  What point of law?

MR VALASSIS:   I have on my ‑ ‑ ‑

CALLINAN J:   No, just tell me what point of law?

MR VALASSIS:   The points of law, your Honour, I have on my books and is on 107 of the Residential Tenancy Tribunal 1987.

CALLINAN J:   Yes, but what was the point of law?  You cannot just tell us about an Act of Parliament.  What did the Residential Tenancy Tribunal get wrong by way of law and not fact?

MR VALASSIS:   That is why I started the case why the Tribunal make wrong, your Honour, and if you see the page 49 I have in writing all the laws which the Court of Appeal erred in law.  Page 49.

CALLINAN J:   All you have got there is there is reference to a number of sections.

MR VALASSIS:   Yes, well ‑ ‑ ‑

CALLINAN J:   What do you say the Tribunal misunderstood or misapplied in relation to those sections?

MR VALASSIS:   Well, the Tribunal has completely missed out all these points of law and was completely not impartial to the applicant and also did not allow to bring witness to prove my case and also, your Honour, if we are going to the page 1 of the application book is the warrant.  The warrant – we discussed this matter with the Registrar of the Tribunal and the Registrar advised me – she is going to give an order to issue a warrant and then the Sheriff is going to give me a possession.  Now, this happened on 24 September.  On 25 September issue the warrant and on 26 September the Sheriff give me possession.  Please, your Honour, on 24 the tenant was there in the court with me and we discussed this matter and the Registrar direct me – give direction for warrant.

Now, later on the member of the Tenancy Tribunal he reject the Sheriff’s report and he asked me for a statutory declaration which was not necessary.  Also, myself, I offer to bring witness to prove the date which I have vacant possession and he refused, but completely I can say, your Honour, it was not necessary to have even witness not even statutory declaration because before the court on 24 September we spoke and discussed this matter with the Registrar and the tenant was on the premises.  All of this matter, your Honour, is completely incorrect.  All of the reports of the member of the Residential Tribunal is incorrect which start from page 4 to page 11 is completely incorrect.

Now, your Honour, the Supreme Court and the Court of Appeal, they work on this particular basis on the report of the Tribunal, date 11/12/97, page 11.  This particular report, your Honour, was the first day we had been to the - for the hearing of this matter after 24 September we had been – on 28 October, and on this particular day the form which I received was , “Bring witness this day” and further down they say, “Don’t bring witness on the first day”.  Well, I tried to have inquiries from the Residential Tenancy Tribunal – unsuccessful – but if we say this was my fault I have never witness this day, your Honour, the matter did not complete on this particular day and on the end of the day I applied to the court to adjourn the hearing for later day to have the opportunity to bring witness.

And, the court continued the next day and advised me if I am not satisfied to appeal to the Supreme Court of New South Wales.  Well, this forced me, your Honour, to come in up to the High Court of Australia.  It was not a matter to the member of the Tenancy Appeal Tribunal to tell me what I am going to do after the hearing and before was the hearing ever finalised.  This particular matter, your Honour, before the Tribunal was – and they suggest to me they are going to be disadvantaged before they finalise the hearing to tell me I have the opportunity to appeal to Supreme Court.  This matter continued on 29 – on 29 – and make this particular order.  This particular order, your Honour, which is in page 3 of the application book.

GUMMOW J:   Yes.

MR VALASSIS:   Well, this particular order made on 29 September 97 - well, this particular order was completely incorrect, your Honour, because what he ask me to bring, a statutory declaration from the Sheriff, he refused to bring a witness and also I can say to the High Court of Australia, was not necessary to bring a statutory declaration from the Sheriff nor even witness because the Registrar he knew all about it.  I asked the officer to be in touch and discuss this matter with the Registrar.  Unsuccessful.  Well, after this happened, your Honour, I bring the statutory declaration from the Sheriff.  He did not allow me to bring witness, and coming before the court on 17 November.  I give the application.  The respondent ‑ ‑ ‑

GUMMOW J:   Now, Mr Valassis, you are narrating the history of it.  You have got limited time.  You have not got to explain anything, yet, why the Court of Appeal was in error in doing what it did to your application.

MR VALASSIS:   That is what I saying, now, your Honour, the foundation which I say to the Court was completely incorrect and the Court of Appeal erred in law in paragraphs I have in page ‑ ‑ ‑

GUMMOW J:   Have you got your application book there?

MR VALASSIS:   Yes, page 49.

GUMMOW J:   Just listen to me for a minute??  The particular problem, I think, is at page 43.  Just look at page 43 for a minute.  That is part of the judgment of the Court of Appeal.  Can you see the sentence beginning, “To the extent” in line 3 on page 43?

MR VALASSIS:   Page 43.  I am in 43.

GUMMOW J:   Yes.  Well, you have to explain to us why the Court of Appeal was wrong in that paragraph, the next paragraph, and its concluding ‑ ‑ ‑

MR VALASSIS:   Which are you on, paragraph - - -?

GUMMOW J:   Just go to page 43.  You are on page 43?

MR VALASSIS:   Yes.

GUMMOW J:   Line 3, right?

MR VALASSIS:   Well, the ‑ ‑ ‑

GUMMOW J:   Now, you have to explain to us why the Court of Appeal was wrong in that paragraph and the next paragraph on page 43.

MR VALASSIS:   Yes, your Honour.  They say in number 5 the – they say in the second paragraph, the Court – it is not matter for appeal.  How it can be no matter for appeal, your Honour, which the lower court never give me attention and never give me permission to have witness and refuse the Sheriff’s application is completely incorrect.  That means I have to disagree.  The court erred in law according to the points which I point out earlier in this – in 49 – Residential Tenancy Tribunal erred – they are 107 of the Act 1987.  Well, that is the errors of law, your Honour, they made which was a clear matter.  Was not confused matter at all. 

They say further there is nothing before the court in evidence.  What more evidence I can have, your Honour?  The evidence was available all in the court, from the lower court, and also is the proceedings before the Supreme Court start 3.45 and with a short cut I start to prove to the court this matter should be set for hearing in Supreme Court for the reasons which I did explain earlier, your Honour.  Well, this matter has come in, your Honour – the applicant is equal citizen and the court is equal to the applicant, your Honour.  I have to say this, this matter was completely disadvantaged on purpose from the Tribunal and create this particular proceedings.  I have the entry, now, your Honour, to the paragraph 6 of page 58.

Well, your Honour, in there I have six proceedings, which all of these proceedings – I do not know if you have been familiar with these, your Honour please.  These particular proceedings – one of them started from 970 and I have been disadvantaged, victimised and discriminate from

my own legal representative, from the Attorney-General Department and from the courts.  Now, to finalise all these matters, your Honour, I want the honourable Court of Australia at this particular time to study these matters and give me not only permission this matter should go back to Supreme Court for a full hearing.  Also, the other matter - - -

GUMMOW J:   No, we could not possibly do that, Mr Valassis.

MR VALASSIS:   You received my – this book?

GUMMOW J:   Yes.  You have got a decision of the New South Wales Court of Appeal.  That is all we are here to deal with.  We cannot have some roving inquiry into a number of other matters.

MR VALASSIS:   Well, your Honour, as I say earlier, this matter is no High Court matter of Australia but I coming in here because the court has been disadvantage on purpose.  Thank you for your time.

GUMMOW J:   Yes.  Any submissions for the respondent?

MR ORLOV:   There is nothing I want to add to the written submissions, your Honours, unless there any matters your Honours want me to address specifically?

GUMMOW J:   No, thank you. 

The applicant seeks special leave to appeal from the New South Wales Court of Appeal.  That court refused him leave to appeal from a decision of Justice Dowd.  His Honour had found that there was no error of law raised respecting the decision of the New South Wales Tenancies Tribunal of which the applicant complains.  The proceeding in the Supreme Court before Justice Dowd was, under the relevant legislation, limited to questions of law.  The New South Wales Court of Appeal refused leave to appeal because it saw no error of law in the decision of the Tribunal or of Justice Dowd.  It appears to us that the matters of which the applicant complains in particular are substantially matters of fact rather than law.

In any event, no question of general public importance is raised respecting the construction of the New South Wales legislation, nor respecting the principles of procedural fairness.  Accordingly, special leave to appeal is refused.

MR ORLOV:   We seek costs, your Honour.

GUMMOW J:   I do not think you can resist that, Mr Valassis.  Refused, with costs.

MR VALASSIS:   Your Honour, regarding to the costs ‑ ‑ ‑

GUMMOW J:   Do you want to say anything as to costs?

MR VALASSIS:   Yes.  Regarding to the costs, I say I should be not responsible for the reasons on the Tribunal I have been looking for damages over $5000.  The court allowed $350, plus the rent until I have vacant possession and I agree.  There are ‑ ‑ ‑

GUMMOW J:   No, what I am asking, your Honour, Mr Valassis, ordinarily, you having been unsuccessful in your application here, you would pay costs.  That is the ordinary rule.  Is there any reason why that rule should not apply, that is what we want to know.

MR VALASSIS:   Well, I have to…..and I have no opinion.  I might have to start this particular matter from the Supreme Court with a new summons against – to the respondent to call – to give evidence – the Registrar of the Residential Tribunal and also the member of the Residential Tribunal which create this matter.  Thank you.

GUMMOW J:   Leave refused, as I indicated, with costs.

AT 11.07 AM THE MATTER WAS CONCLUDED