Yap v Granich & Associates

[1998] HCATrans 384

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P46 of 1997

B e t w e e n -

YAP CHENG SEE

Applicant

and

GRANICH & ASSOCIATES

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 3.45 PM

Copyright in the High Court of Australia

McHUGH J:   Ms Yap, you are the applicant?

MS C.S. YAP:   Yes, I am.

MR B.S. DODD:   May it please the Court, I appear for the respondent, with DR S.E. IVEY.  (instructed by Mallesons Stephen Jaques)

MS YAP:   Your Honours, I have some documents that is referred to in my affidavit which ‑ ‑ ‑

McHUGH J:   Ms Yap, you have a number of problems.  First of all, this Court does not take new evidence, but you have a fundamental problem that you have to get over.  You did not file your application until 105 days after the decision of the Full Court and that is contrary to the requirements of the Rules of this Court, in particular Order 69A, rule 3(1), which requires such an application to be filed within 28 days.  In addition, another subrule requires an application to be accompanied by the judgments in the courts below.  Your application, even when filed, failed to comply with that rule.  You have given no explanation for your delay.  There is no sworn explanation for why you have failed and, unless you can persuade us that we should extend the time for hearing this application, we will have no option but to dispose of your case on that basis.

MS YAP:   On the basis that - your Honour, can you please repeat?

McHUGH J:   Yes.  You did not file your application for special leave to appeal to this Court until 15 weeks after the Full Court gave its decision.

MS YAP:   Yes, I will deal with that.  Your Honour ‑ ‑ ‑

KIRBY J:   This point is taken in the respondent’s arguments.  They raise the point in the very first argument.  They say, “The application is incompetent” because it “was not filed within time”.  All courts in the country have to stick to times.  That seems to be a problem that you have in understanding.

MS YAP:   Your Honour, at the Full Court of 85 of 1996 the respondent succeed in one of prosecution.  One of the reasons they canvass was to prosecute the Local Court action.

KIRBY J:   You are not addressing the question that Justice McHugh asked of you.  He asked, “Why should we hear your application to this Court because you are required to file your application to this Court within a certain amount of time?”.  You have not done so, you have no explanation as to why you have not, and it is part of a pattern of your just not worrying about the rules of the courts.

MS YAP:   Your Honour, it is not that I – oh, I am very worried.  It is just ‑ ‑ ‑

KIRBY J:   You might be worried but you do not do anything to conform.

MS YAP:   Yes, I did.  I tried – I have no understanding of there is a possible appeal to the High Court.  It is when the prosecution was dismissed, I immediately tried to remit the respondent’s Local Court action because that is what - they say they will be prejudiced if one, the prosecution is not granted.

KIRBY J:   Do you say that you did not know the time limit to appeal to this Court?

MS YAP:   Yes, I did not know.  I did not know at all.  So I want to remit, so I make an effort to remit the respondent’s Local Court action to the Supreme Court.  Just the day before the hearing of the Supreme Court before Master Bredmeyer, the respondent immediately promptly discontinued the action.  In the meantime they were trying to bankrupt me in the bankruptcy notice.  Now, that last chance that the Full Court gave to me to pursue, I acted.  I strenuously raised $1,000 to get a good solicitor who has got two firms, Mr McKerlie of Colin McKerlie.

McHUGH J:   You are out of time.  We will not rule on it at this stage.  Would you go on with your principal argument at this stage.  You have given an explanation.  You say, “I didn’t know about this”.

MS YAP:   Yes.

McHUGH J:   Would you move on with the substance of your application.

MS YAP:   All right.  Your Honour, before I move to my substance of application, I have filed with my affidavit documents.

McHUGH J:   I appreciate you have filed those documents.  This Court does not hear new evidence.  You have to deal with the case as it was before Commissioner Martin and before the Full Court.  We are not here to take new evidence from you.

MS YAP:   It is not new evidence.  It is the extract of the trial, the extract of the trial before the Commissioner.  That is what I am trying – you see, it was a Friday I came to file, and evidently the transcript was missing.  Monday was a holiday, so I asked the Federal Court, Miss Elena, “What shall I do?”.  I could not go back and she says, “You can file it on Tuesday”.  So early in the morning on Tuesday I brought those materials, and it is not out of time.  It is still within the time that I am allowed.  But this was just evidently missed.  So I panic and went - the respondent’s solicitor objected to a meeting, but in my affidavit I have quoted a lot.  I have referred a great deal to the transcript.  So these documents which the respondent’s solicitor objected to are extracts from the transcript of the trial held before Commissioner Martin.

KIRBY J:   I understand these things are very difficult for lay people, but we are here to correct mistakes or errors in the Full Court.  Do you understand?  So what we need is your help on what you say is the mistake that the Full Court of the Supreme Court of Western Australia made.  Do not worry about everything that went before.  Just concentrate on that.

MS YAP:   Which one first?  Before Commissioner Martin?

KIRBY J:   No, the highest court in the State of Western Australia.

MS YAP:   Full Court.

KIRBY J:   That is the appeal to us.  We sit here to correct them.

MS YAP:   Yes.  The one mistake is that Mr Ainslie, who is the respondent’s counsel, he concealed the whole of the first application, my application dated 7 July 1992.  That is the only application that the respondent did on my behalf and that application is where the respondent omitted 62,490 in the CSY-1, the schedule CSY-1.  I think I have – in my affidavit it is page 126.  If you see CSY-1, page 126, that is what the – the fundamental - my special point, your Honour, is that the respondent - Mr Peter Smallbone of the respondent, right, he knows how to tell me I need evidence.

McHUGH J:   But this is a point that was never raised, was it?  This is the first time you have raised this point.

MS YAP:   No, it is in the transcript, yes.  The cheques – I got the cheques on the 26th, all the cheques.  Now, you see, but Mr Smallbone as my solicitor did not require the plaintiff of the action, to provide all cheques they paid to us.

McHUGH J:   Look, the problem you have in this case is, to be quite blunt about it, Commissioner Martin said he did not regard your evidence as reliable where it was not corroborated independently.  That appears at page 17 of the book.  He found that the claims made by you against the defendants were without foundation and that any causative consequence in terms of financial or other harm has been sustained by you as a result of the judgment obtained against you not being set aside.  The case against you is extraordinarily strong.  You had a deed in which you admitted the debt, you had the letters written by Esanda.

MS YAP:   Your Honour, before I appointed the respondent, it was just after the hearing before Registrar Kingsley in the action.  Now, that afternoon I was being given by ANZ Bank, Akibilt’s bankers, incorrect cheques.  If I had been given correct cheques, I could have set aside the default judgment of the plaintiff.  Now, I was ‑ ‑ ‑

McHUGH J:   Ms Yap, this Court hears only very special cases.  Nothing I have read in this material or anything that you have said today provides the slightest ground for thinking that this is a case for special leave to appeal.

MS YAP:   Now, there is a special ground for the interest of administration of justice because the plaintiff still owe us 60,650.  The cheques that we provide them, it is because ‑ ‑ ‑

McHUGH J:   Your claim about those cheques has been rejected out of hand by the courts below – by Commissioner Martin, for a start.

MS YAP:   Now, those cheques – it is the omission by the respondent in the CSY-1, 62,490 that my debtor caused, my allegation that Akibilt Pty Ltd has fully paid the plaintiff could not be substantiated.  The omission that my allegation that the plaintiff’s deed was false and ‑ ‑ ‑

McHUGH J:   I know you say that but ‑ ‑ ‑

MS YAP:   It is not substantiated.  It is because of the omission.  In the extract in the evidence of Mr Vivante before Commissioner Martin, it is in here that I am trying to give now.  It is in the extract.  The evidence is there in that transcript of trial.

McHUGH J:   For a start, it is not a transcript.  You have annexed some documents which you just call annexure A.  We have no transcript as such.  Some of the documents cannot possibly be part of the evidence.  One of them is a report of a High Court decision – Jackamarra v Krakouer.

MS YAP:   That is the authority that I tried to quote.  It is similar to my case.

McHUGH J:   I think it is a long way removed from your case.

MS YAP:   Your Honour, I am a lay person.  I do my very best.  I do my very best to seek justice, right?  This is a very – and my home was just sold pursuant to a writ of fi fa 215/93, which is pursuant to a void action, District Court action 1536 of 1989, which is pursuant to an invalid deed.  This deed is actually the one the directors guaranteed for work done from me to the sum of 67,000 by the other solicitor’s letter, 2 September 1988.  Now, what I was given to sign, your Honour, is not a director’s guarantee for the work done which is a contingent liability.  I was ‑ ‑ ‑

McHUGH J:   You signed a deed ‑ ‑ ‑

MS YAP:   I was given ‑ ‑ ‑

McHUGH J:   You signed a deed and you attempted to explain it away before Commissioner Martin.  He said that your attempts at trial to explain it away were not convincing and he did not accept your evidence in that regard.  That is the end of the matter as far as this Court is concerned.  There is a finding of fact against you, Mrs Yap.  You cannot litigate that on a special leave application.

MS YAP:   Let me see what other – this Court for special leave – you see, the Court must be flexible, correct?  The ultimate purpose of this Court is to get justice.

McHUGH J:   That is not correct at all.  It is to do justice according to law.

MS YAP:   It is to do justice according to the law, right.  Now, I have suffered according to the law by deliberate misrepresentation.  I signed those deeds in reliance of a solicitor’s representation, although it is the plaintiff’s solicitor, you see?  It is deliberately misrepresented to me.  Anyway, that plaintiff, Vivante, is a subcontractor of my company and all this is just work done.  So I was asked to give director’s guarantee for work done to the sum of 67,000, but in fact I was given to sign a deed of indebtedness in the sum of 67,000, which is a liability.  So I was asked for contingent liability and I was given to sign the liability and – so, if it is so, I should not be – it is not my deed because I am asked to sign a work done guarantee but I am given to sign – so that is not my deed.  I do not know what they call it in law but that is not my mistake.  It is ‑ ‑ ‑

McHUGH J:   Well, you signed a deed and Commissioner Martin refused to accept your evidence in respect of it.  He said he did not accept your evidence and he found your explanations unconvincing.  In addition, you have to remember that you ultimately conceded in cross-examination that you had, in effect, forged a document of Vivante’s.

MS YAP:   No.

McHUGH J:   You created a document bearing the stamp of Vivante in respect of a quotation.  It is set out at page 16 of the appeal book.

MS YAP:   Now, P. Vivante & Company is the correct subcontractor, not P. Vivante.  So P. Vivante is the man.  P. Vivante & Company is a subcontractor, so I have not forged any documents.  It is the P. Vivante ‑ ‑ ‑

McHUGH J:   On your own evidence, you only had an oral quote, and then you purported to bring into existence a document given out by P. Vivante.

MS YAP:   It is - no.

McHUGH J:   It was a written document of the quote, when it had not been given at all.  You created the document by a photocopy, by photocopying the stamp of Vivante in respect of the quotation.

MS YAP:   Your Honour, that $25,000, if you see, it is the right quote.  Even in his evidence at the trial, all in all it revolves between $25,000 and $42,000.  Now, Mr Vivante 10 slabs, but in his evidence he said he had been paid for 9 slabs, but he charged 11 slabs, your Honour.  He charged 11 slabs.  If you count a picture, if you count a Vivante’s document which is 19 to 54, if you count 37, page 37, your Honour.  If you count, your Honour, you count the $4170, it is counted, it is 10 there.  And, one, Mr Vivante deliberately omitted that is cheque 911680, which is listed in the respondent’s Schedule CSY-1.

McHUGH J:   But part of you problem is that Mr Vivante was called as a witness and the trial judge accepted his evidence.  It contradicted your evidence.

MS YAP:   Your Honour, I did this on my own, and there is no other witness.  The only suitable witness is Mr Vivante, because he is the one that is getting money from me, borrowing money from me, and he is the director of the subcontractor.  So, if I do not call him as a witness, and I call Mr Ferguson too.  Now, Mr Ferguson is his solicitor, that drafted out that.  So, I, as a lay person, that is the only two persons that I could call on because Mr Ferguson is the one that drafted the deed and the misrepresentation he made, right.  And Mr Vivante is the one, the director of the plaintiff, he is the one that gave the quotation and getting money from me, borrowing money from me and returning a piecemeal, and when the respondent omitted the $62,490, in 1992, right, now the trial is 1996, when Mr P. Vivante give them their documents, the Vivante documents.  You see, Mr Vivante deliberately omitted the cheque 911680, which the respondent listed in CSY-1.

McHUGH J:   Ms Yap, your time is up.  Your time is up.

MS YAP:   So, and Mr Vivante give the one that the respondent, you know, omitted, along with six others as to the $62,490, which caused the allegation that P. Vivante is properly paid could not substantial, because that my allegation that the deed is false and fabricated could not be substantiated.  So that - and the respondent did not ask ‑ ‑ ‑

KIRBY J:   We understand this is very difficult for you to put this in a very short time.  Now, you should take it calmly, and take a glass of water.  But we have read all the written submissions that were put in before.

MS YAP:   Yes.

KIRBY J:   We understand your points.

MS YAP:   And my home was sold wrongfully.  That is ‑ ‑ ‑

KIRBY J:   We understand all this.

MS YAP:   My home was sold wrongfully, and this one - not only that, your Honour.  The respondent has a bankruptcy waiting for me, so if I do not get this, it is so unjust.

KIRBY J:   Yes, well, we understand.  We have read all your submissions very carefully.

MS YAP:   And it is so difficult for me.

KIRBY J:   Yes, we understand that too.

MS YAP:   Yes.

KIRBY J:   Thank you very much.

MS YAP:   And it should not be allowed.  I could not even put my ‑ ‑ ‑

KIRBY J:   You put your arguments as well as they can be put.  Thank you very much.

McHUGH J:   Yes.  Thank you.  Will you take your seat, please, Mrs Yap.  We do not need to hear you, Mr Dodd.

The application for special leave to appeal in this matter was filed 105 days after the decision of the Full Court of the Supreme Court of Western Australia, contrary to the requirement of Order 69A rule 3(1) which requires such an application to be filed within 28 days.  Moreover, the application, when filed, was not accompanied by the judgments in the courts below as required by Order 69A rule 2(2).  No sworn explanation for these failures have been given.  However, from the Bar table, Mrs Yap has said that she did not know that an application had to be filed within that time, and I rather gathered that she was not even sure that she could bring an application to the High Court.

Be that as it may, the case involves no question that would justify the grant of special leave to appeal and, in addition, the application appears to be entirely devoid of merit.  The proper course, therefore, is to refuse to extend the time for filing the application and to dismiss the application.

MR DODD:   We move for an order for costs.

McHUGH J:   Yes.  Well, Mrs Yap, we have dismissed your application and your opponent has now asked for costs.  Is there any reason why we should not make an order for costs against you?

MRS YAP:   I do not know the rules. 

KIRBY J:   Normally, if you bring an application and the application fails, you have to pay the costs.

MRS YAP:   I have nothing to say.

McHUGH J:   Thank you, Mrs Yap.  This application is dismissed with costs.

AT 4.12 PM THE MATTER WAS CONCLUDED