Von Risefer & Anor v Permanent Trustee Company

[2000] QCA 374

[2000] QCA 374

COURT OF APPEAL THOMAS JA

No 5162 of 2000  EUSTACE VON RISEFER and

ELIZABETH VON RISEFER                 Applicant/Applicant

and

PERMANENT TRUSTEE COMPANY           Respondent/Respondent

BRISBANE

..DATE 13/09/2000

JUDGMENT

HIS HONOUR:  The applicants who have been represented by Mrs Von Risefer in person have a pending appeal against a judgment of Mr Justice Byrne dated 9 June 2000.        That judgment was given after a lengthy trial and it granted judgment against the applicants for possession of their property at Helensvale.

Applications for stay of that judgment were brought before both the trial and appeal divisions of this Court on 16 June 2000. The relevant background and reasons for dismissing the application which came before a single Judge of the Court of Appeal were carefully stated in the reasons for judgment of Mr Justice Pincus given at that time.

Notwithstanding those dismissals a further application for a stay of the same judgment was brought before three Judges of this Court on 30 August 2000.     The allegedly new matters on that further application were deal with and mentioned in the reasons at pages 5 to 6 and they included such matters of the Foreign Acquisitions and Takeover Act and of the Banking Act.    That application was again refused.

There is, of course, an obligation on any litigant to bring forth all matters on which he or she relies on the one occasion.    A certain tolerance is appropriate in the case of litigants who have no legal representation but that position has been severely overused by the present applicants.

A number of matters were raised in an affidavit filed on

behalf of the applicants and still further matters in the rather lengthy oral submissions to which I have listened today. I shall mention some of them in case the applicants ever see fit to try to bring forward the same matter again. Some of them are contained in Mrs Von Risefer's affidavit sworn on 7 September 2000 and by a further affidavit filed on 12 September.

The allegations are not particularly clear or coherent and there may be some allowance needed to be paid for language difficulties. The allegations are, in some respects, becoming more extreme. There are general allegations of illegality and of alleged presentation of two different forged copies of the mortgage and which are said to bear different dates.

Similar points, however, seemed to have been raised at the trial and disposed of adversely to the applicants.     Other matters include an alleged denial of natural justice by refusal of an adjournment in relation to the primary decision.  This and other matters, now advanced, may or may not be relevant in the ultimate appeal which seeks to attack the judgment given by Mr Justice Byrne but they do not raise any good reason to alter the decisions that have already been clearly given in attempts to obtain a stay pending the present appeal.

Another matter that has been raised before me is that Mr Justice Byrne wrongly allowed late amendment to the

claim.  That seems to have been dealt with before and it seems to be adequately explained by the reasons advanced by Mr Drysdale in argument.    Certainly, it does not appear to be a promising basis adding any strength to the applicants' position.

Mrs Von Risefer submitted a number of times that it would only be a few more months until the Court of Appeal decides the appeal and she asserts that she will win this case. However, this point and these assertions seemed to have been made and considered on previous applications, and the Court has answered, "No." I understand Mrs Von Risefer's desperation to avoid being dispossessed but she does not seem to be prepared to take "No" for an answer.     It needs to be emphasised that repeated applications seeking the same relief cannot be brought in this fashion.

I note that there has been no offer to make payments under the mortgage as a condition of granting the stay.    Nothing has been paid under the mortgage for a considerable time and, at least, not since April of 1999.

Another matter raised was a complaint about pleadings at the trial.  Apparently an amended defence was permitted by the learned trial Judge to be filed on behalf of the applicants raising, for the first time, forgery, fraud and that the plaintiff was not the true mortgagee. Those issues appear then to have been litigated.        I have difficulty in comprehending how this point advances the position of the

applicants in the present application.

APPLICANT:  Your Honour, if I may-----

HIS HONOUR:  No, just a moment, please.

APPLICANT:  Only for the propositions please-----

HIS HONOUR:  I am giving reasons for judgment.

APPLICANT:  Only for the propositions I can start doing anything I said and my-----

HIS HONOUR:  If you will not abide by the rules you will not be permitted to remain.

APPLICANT:  Your Honour, I was only to say that I can do any proposal with payments. Only that.  Not to argue all around.        Because I did say in - and there is transcribed - that I am prepared to do anything it takes so that property will be available take it to the Court of Appeal.  That was my only argument now.        I hate to interrupt. But I said that before I can do anything.

HIS HONOUR:  I have listened to lengthy submissions, some of which have a degree of the theatrical, some at times hysterical, and nearly always irrelevant.               The position has been reached where I must say that Mrs Von Risefer has not listened to what the Courts have told her on previous occasions and she is plainly abusing the process of the Courts.           This application is an abuse of that process. It is only compassion for litigants who face eviction from their home that induces me to refuse the respondent's

13092000  T25/PMD18 M/T 7799/2000 (Thomas JA)

application for indemnity costs.

The application for stay is refused and the applicants are ordered to pay the costs of the respondent to be assessed.

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