von Risefer & Ors v Permanent Trustee Company Ltd & Ors

[2005] HCATrans 635

[2005] HCATrans 635

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 2005

B e t w e e n -

EUSTACE VON RISEFER

First Applicant

ELIZABETH VON RISEFER

Second Applicant

GOLD COAST BARRAMUNDI PTY LTD TRADING AS SATOR AUSTRALIA PTY LTD

Third Applicant

and

PERMANENT TRUSTEE COMPANY LIMITED

First Respondent

LA TROBE HOME LOANS OF AUSTRALIA PTY LIMITED

Second Respondent

MacGILLIVIRAYS SOLICITORS

Third Respondent

ROBERT EDWARD HALL

Fourth Respondent

ELIZABETH MARY HALL

Fifth Respondent

DEPARTMENT OF NATURAL RESOURCES AND MINES

Sixth Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 AUGUST 2005, AT 9.36 AM

Copyright in the High Court of Australia

__________________

McHUGH J:   This is an application for special leave to appeal from the decision of the Court of Appeal of the Supreme Court of Brisbane, dismissing an appeal against the primary Judge’s determination adverse to the present applicants.  The original dispute concerned proceedings initiated by the applicants for the recovery of possession of property at Helensvale of which the first defendant was the mortgagee.  Those proceedings were commenced because the applicants had defaulted on repayments of the loan secured by the mortgage.  The applicants sought special leave

to appeal to this Court in relation to those proceedings.  On 12 September 2003, Kirby and Hayne JJ refused that application.  Their Honours concluded that any grant of special leave would be “futile” in light of the facts of the case.

The applicants then commenced proceedings in the Supreme Court of Queensland.  The applicants were granted three adjournments, and were also given the opportunity to replead and put their Statement of Claim in a form which disclosed a cause of action.  They failed to do so.  Atkinson J held that the allegations contained in the Statement of Claim were scandalous, embarrassing and failed to disclose a cause of action known to law.  Several of the claims amounted to an attempt to re-open litigation which had already been determined in the Court of Appeal.  Some of the allegations were ‘obviously absurd’.   Pursuant to r 293 of the Uniform Civil Procedure Rules, her Honour entered judgment in favour of the respondents.  

The applicants appealed to the Court of Appeal of the Supreme Court of Queensland.  That Court upheld Atkinson J’s reasons and orders and dismissed the appeal, finding that the applicants’ submissions were “significantly marred by the same deficiencies as the statement of claim”, and that the appeal was “without discernible merit of any kind”.  The same is true of the applicants’ submissions in support of the present application.  They contain scandalous and incoherent allegations.  They reveal no question of law.  Accordingly, special leave is refused.

The application for special leave is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 9.36 AM THE MATTER WAS CONCLUDED