Von Schulz & Anor v Moriello

[2000] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B32 of 1998

B e t w e e n -

KARL AND THERESIA MARTHA CITRA VON SCHULZ

Applicants

and

VALENTINO AND GERARDA MORRIELLO

First Respondents

GRANT CURRIE AND CURE ALL PEST CONTROL PTY LTD

Second Respondents

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 9.36 AM

Copyright in the High Court of Australia

MR K. VON SCHULZ:   I respectfully ask your Honour ‑ ‑ ‑

GUMMOW J:   We are only taking the appearances at the moment. Do you seek leave to appear on behalf of your wife, as well as yourself?

MR VON SCHULZ:   Yes, sir.

GUMMOW J:   Yes, thank you.

MR M.M. STEWART:   May it please your Honours, I appear on behalf of all the respondents.  (instructed by Gadens Lawyers and instructed by Minter Ellison Lawyers)

GUMMOW J:   Yes, Mr Von Schulz.

MR VON SCHULZ:   May I ask your Honours, respectfully, if I could sit down while I am – I cannot – I am poisoned with arsenic and my joints – my legs does not stand up for a while.

GUMMOW J:   Yes.  The only question is whether the television camera can reach you when you are seated, and the microphone.

MR STEWART:   Yes, it will, your Honour.

GUMMOW J:   Yes.

MR VON SCHULZ:   Thank you, your Honours.

GUMMOW J:   That is better.  Now, before you start, Mr Von Schulz, you understand we have a system whereby you have no more than 20 minutes to address us, orally?

MR VON SCHULZ:   This is what I want to ask your Honours, respectfully, because I am a lay person and this is a case for which we never had a trial in the Supreme Court or the Court of Appeal and I would be very grateful, your Honours, if you could extend a little bit of more time.

GUMMOW J:   No, your task – no.

MR VON SCHULZ:   It is impossible for me to present all these cases – these facts here to the –in 20 minutes.

GUMMOW J:   No, just listen to me.  We have a considerable amount of written material which we have looked at.  Now, the ordinary rule ‑ ‑ ‑

MR VON SCHULZ:   I cannot hear you, your Honour.

GUMMOW J:   The ordinary rule is there is 20 minutes and no more.  We have a considerable amount of written material which we have looked at and your task is to assist us by explaining why you say the Court of Appeal was wrong, not to recapitulate the whole history of the matter.

MR VON SCHULZ:   All right.  The Court of Appeal was wrong because they relied on a terms of settlement – particularly on the terms of settlement which is forged by the solicitors for the respondents and on supplementary page 129 A and B your Honours will find that these terms of settlement is not signed by our solicitor or counsel.  Also, your Honours, the court ‑ ‑ ‑

GUMMOW J:   What page is that?

MR VON SCHULZ:   Page 129 and 130 in the supplementary.

GUMMOW J:   Yes.

MR VON SCHULZ:   Also, your Honours will see an affidavit from our solicitor.  On 163 you will find the original signatures on page 1 and page 2 from our solicitor which does not appear on the terms of settlement.  Also, the mediator’s certificate is a forged certificate because we were not allowed and were not present for five and a half hours in this mediation, and, also the first respondent, Mrs Morriella, was in Italy.  She was not even in Australia.  But, the mediator conspired against us with the solicitors for the respondents and gave a falsified – this mediator’s certificate.  We, therefore, ask your Honours to give us a hearing so we can present all the documentation, if necessary.  And, affidavits were also falsified.  The respondent is giving false affidavits to this effect to the terms of settlement – Jim O’Brien – 21 January 1998, page 175.

Your Honours can see he clearly states the terms of settlement was signed by our solicitor, which it is not.  And, also, on the top of this, 175, there was a conspiracy between the lawyers and the respondents and he admit - your Honours can read:

on 27 September 1997 I agreed with Ms Joan Boughton of Messrs Hemming & Hart to engage Ms Wilson a substitute for Mr Hanger ‑ ‑ ‑

Mr Hanger was, by Mr Justice Fryberg, appointed as the mediator on 24 November, so two months before this they already agreed that their friend, Ms Wilson, will be the mediator, and they came with the excuses and say Mr Hanger was not available.  Mr Hanger was available but they conspiracy – they agreed all in advance and just use excuses, so, we rely, in particular, on the falsified terms of settlement and falsified mediator’s certificate – forged.  Forged.  And, other material, Grant Currie affidavit, he clearly admit using arsenic trioxide and poison us with this arsenic trioxide, page 160, line 55 in the supplementary your Honours can read.

The Professor Barry Smithurst clearly states at page 65 – he say:

it is considered to be the most dangerous of all the arsenical compounds, apart from the gas arsene –

which these people be exposed to.  So, it is clear – we can prove to this honourable Court arsenic is a deadly poison and we are poisoned for life.  Further, poisoning – also on the 19th in his affidavit – he admit on 19.8.97, page 156 – using this arsenic without relocation, without informing us, without any – they just sneaked in in our home and disguised as carpenters to give a new door and window frames which that was eaten by the termites.  So, they lied to us and poisoned us with arsenic and we have been exposed for 77 days to this arsenic and we are now very ill and suffering and need urgent treatment, but there is no treatment in Australia.

Also, your Honours see in A and B there is two – they tried two falsified terms of settlement.  There is A and B, your Honours can see forged, because one is written on the top “Hemming Hart” and the other one is “Hemming & Hart”.  So, what they did they just falsified the signature of our solicitor and just simply putting “Hemming & Hart” on top, that is all.  And, then they all signed it, Gaden Lawyers, and Ian Briggs for Minter Ellison.

So, honourable Justices of this honourable High Court of Australia, please take notice of our supplementary book, page 115 to page 123.  We, the applicants, tell our Brisbane Supreme Court and Court of Appeal the story of traumatic and painful experience.  Please realise the Queensland Attorney-General and other high respectable law personalities admit this generally common bias miscarriage of justice which happened to us and “hostility” et cetera, in our supplementary book, particularly page 120, page 121, page 122 and page 123.  Please read all this from line 5 to 55 and it is no wonder we have been unscrupulously deprived of our democratic legal rights for a full trial.  We never received a trial.  It all was dodged because they denied by abuse and bias for each other – cover up for each other.

And the blood tests – we have blood tests and urine tests.  Your Honours can find in the supplementary – in the new bundle, yes, the last pages.  In all the blood tests we have a high content of arsenic in our body system and it stayed there for many years, according to the toxologist and doctors and professor, and slowly cause cancer, renal failure, shock and death and it stays there up to nine years.  So, we urgently need treatment but we have no money and there is no treatment in Australia, we have to go overseas.

The solicitor, in his affidavit, James O’Brien, in his – page 185 – he clearly states:

“Terms of Settlement” signed by Ms Boughton on behalf of the appellants –

which is wrong.  This is perjury.  There is no – as your Honours can see on page A and B of these terms of settlement – there is no signature of our solicitor and the original signature is on her affidavit and on the details of settlement something which she wrote on the 18th but she was sacked already on the 3rd – and admits that she forged this document here, she had no legal rights, she had no…..authority to act on our behalf at all.  That was all done very quickly and organised, though, to deceive us and defraud us, as your Honours can see, and we rely on the terms of settlement and the mediation certificate which are forged.

In our supplementary book, the affidavit on page 62:

“Professor Barry A. Smithurst”
Medico-Legal Associate, say:

in particular at page 65, lines 5 and 15 clear say:

arsenic trioxide which these people were exposed to, it is considered to be the most dangerous of all the arsenical compounds, apart from the gas arsene –

We have been exposed to this arsenic and we have doctor’s certificates that we are injured very badly and we have photographic evidence to this part.  If your Honours allow us a hearing then we will produce all this evidence to the Court but I believe we should have here a judgment against the respondents because of the falsified terms of settlement which was a decisive document and he used this arsenic probably illegally because he never showed a licence.  And, he admit in his affidavit using pure arsenic on page 160, line 50 to 55:

The only material I had used in Unit 4 –

in our unit –

was Arsenic Trioxide –

It is clear, your Honours, beyond reasonable doubt that we have a good case here and we live on these vitamin pills here which cost us $50,000 already.  There is no cure in Australia.  We have to go overseas.  And, also, on drugs and it is getting worser and worser.  We are living from one day into the other.  I am sorry, your Honours, but it is a very painful experience and before the 14th, before this arsenic business, they poisoned us, I was fit, jogging, swimming.  My wife and I are very happy persons.  Now we are suffering daily pain and on page 3, it is the new one, the doctor reports.  You can read all the doctor reports again.  I would stress it was arsenic trioxide and he says here:

I understand that with both patients an offer was made to treat them, but it was recommended by an academics at the university –

and also in hospitals:

that the treatment was probably more toxic than the arsenic.

Well, there is a new system in the USA, in America, and probably in India, so we can go and distract this arsenic from our body.  We have only – because it causes cancer and we have pain in the joints, muscle pain and – thank you, your Honours.  The arsenic sits in the body for many years, up to nine years.

GUMMOW J:   Mr Von Schulz, you have another three minutes – we will say another five minutes, and what you have not addressed yet is the legal questions as to where the Queensland Court of Appeal committed a legal error in principle, in the way it disposed of your motion seeking to reinstate your appeal.  You do not do that by rehearsing the whole history of the matter, it has got to focus on the legal issue.

MR VON SCHULZ:   Yes, but, your Honours, see on ‑ ‑ ‑

GUMMOW J:   Now, do that as shortly as you can, please?

MR VON SCHULZ:   The legal issue – the Court of Appeal relied absolutely on the terms of settlement and the terms of settlement you can see on page 32 of the application book, 15, 20.  They clearly say:

agreement to settle the action and relevant…..“Terms of Settlement” signed by the respective solicitors for the parties and further documents, signed there -

Now, it is clear this is absolutely wrong because the terms of settlement was not signed by our solicitor.  Our solicitor has no ostensible authority to sign anything at all and we were removed smartly from the mediation room and could not argue the case.  That was all a set up and the solicitor’s signature, your Honours can see, does not appear on the terms of settlement.  Now, as far as legal are concerned, his Honours, in the Court of Appeal, are in very great error and it say here:

materially have paid by full amount required to pay under the settlement.

There was no settlement.  Attempts of settlement is void, invalid.  It is forged by the solicitors for the respondents and the mediator by conspiracy and therefore we have a good case and prove that his Honours in the Court of Appeal clearly relied only on these terms of settlement, when your Honours read the judgment.  They did not take any notice of the arsenic poisoning, they just go by a court process.  They did not worry about the truth or facts which we presented to the court and we gave him all the evidence and all the – you see, and our solicitor and the solicitor told us, we get $40,000 for economic loss.  Now, that was clearly agreed to economic loss only and the injury will be negotiated later but we never received any money for the injury.

GUMMOW J:   Mr Von Schulz, you had better wind up your submission, now.  You are nearly out of time.

MR VON SCHULZ:   Finally, to start our healing process overseas and under the very serious emergency, it is clear, with respect, the respondents forged the terms of settlement on the documents, therefore, we respectfully ask the respondent, the honourable Justices, for immediate judgment against the respondents because of the emergency.  We need urgent healing.  We have got to start our healing process.  And, very important is, we rely on the fact that the signature of our solicitor does not appear on that terms of settlement.  Your Honours can see the terms of settlement is a forged document.  And, she also got the sack for this.  She was dismissed by the firm Hemming & Hart.  Immediate judgment against the respondents who have no defence, according to our claim, writ of summons No 5486 of June 1997.   We ask $3 million to go overseas and get our health back.  Thank you, your Honours.

GUMMOW J:   Yes, thank you, Mr Von Schulz.  Yes, Mr Stewart.

MR STEWART:   It would appear that the criticism levelled at the judgment of the Court of Appeal is that the members of the court failed to take into account evidence that what is submitted to be one of the crucial documents, the terms of settlement, was affected by fraud in that the signature on it which purported to be that of the appellant’s solicitor was a forgery.  It is true that the Court of Appeal did not deal with that and the explanation for that fact is that it was not a matter which was raised before the Court of Appeal.  It has been raised here for the first time.

I do not wish to repeat what is set out in the written summary of argument except to submit that the applicants have failed to demonstrate any error in the reasoning which resulted in the six conclusions which one finds summarised in the outline of argument commencing at page 71 of the record, neither have they shown that any novel or controversial question of principle arises.

GUMMOW J:   So, you say the application should be refused, with costs?

MR STEWART:   I do.

GUMMOW J:   Yes.  Thank you.  Yes, Mr Von Schulz.  You have a very short reply.  Yes.

MR VON SCHULZ:   Yes.Your Honours, it is clear we rely on it.  They have no defence, as the barrister just said because the judgments of all the judges in the Supreme Court and the Court of Appeal did rely on the terms of settlement which is a forged document and the signature of a solicitor which is clearly different from what is on Hemming & Hart which definitely was put there on the top just the firm Hemming & Hart by the respondent’s solicitors and Margaret Wilson, the mediator, and, therefore, your Honours, we have a case, and as I said before, there is no doubt the respondents are very wrong and in very great error and they are responsible for this forgery.  Thank you, your Honours.

GUMMOW J:   Thank you.

The applicants brought a motion in the Queensland Court of Appeal designed to reinstate a notice of appeal dated 5 May 1998.  The Court of Appeal dismissed the notice of motion on the footing that the appeal which the applicants sought to pursue had no chances of success.  No error of principle is apparent in the decision of the Court of Appeal. 

This morning the applicants emphasised what they say are the merits of their underlying claim, the subject of a settlement document which they challenge.  These questions are not questions which could be considered in this Court if leave to appeal were given. 

The conclusion is that an appeal to this Court against the decision of the Queensland Court of Appeal would have no prospects of success.  Accordingly, special leave is refused with costs.

AT 10.03 AM THE MATTER WAS CONCLUDED