THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Monday 30 September 1996
020680/96 - JOHN WILSON v ST GEORGE BANK LIMITED
PLAINTIFF in person, unrepresented
MR S RREUBEN for the defendant
REUBEN: Mr Wilson is the appellant applicant in relation to an appeal from the Master in respect of a motion whereby the plaintiff's claim was
dismissed, meaning the action.
HIS HONOUR: A summary dismissal?
HIS HONOUR: The Master summarily dismissed it and this is an appeal to a Judge.
REUBEN: Yes. The situation is I have not spoken to Mr Wilson this morning as to what the preferred course is but I would expect that the matter would
occupy under an hour and I am aware from previous hearings in this Court that there is a Chief Justice's Practice Direction which I have been informed about on previous occasions requiring the Court to specially fix
matters where a litigant appears in person. I was informed of that on a previous occasion and that is why I inform your Honour of that. It was before a Registrar in the ordinary Master's List.
HIS HONOUR: I think the Judges in this Duty List quite customarily hear cases involving litigants in person.
What do you say about the matter, Mr Wilson?
PLAINTIFF: I am appealing against a dismissal.
HIS HONOUR: How long do you say it will last?
PLAINTIFF: I would like it to last one minute because I would like to present my -
HIS HONOUR: I am not hearing it at the moment. Are you ready to proceed?
PLAINTIFF: Yes, now.
HIS HONOUR: I think I should leave it in the list. I will mark it not short, one hour.
PLAINTIFF: Would that be regarded as an urgent matter? I have an affidavit. Can
HIS HONOUR: Mr Wilson, I will hear the case in due course. It will be called again during the course of today.
PLAINTIFF: So I just hang around today, do I?
HIS HONOUR: Yes, you hang around until the case is called, like everyone else.
MATTER STOOD DOWN
HIS HONOUR: What do you have to say in favour of this, Mr Wilson?
PLAINTIFF: I am no proficient lawyer. I would like to submit my reasons for appeal in the form of an affidavit. I have one hour here. I went
downstairs this morning and they said: "Just present it in Court."
(Affidavit handed up.)
REUBEN: I have not seen this yet.
HIS HONOUR: Mr Reuben now has a copy.
REUBEN: I have no objection to your Honour reading it at the same time, if you wish. Could I assist your Honour with the relevant documents in the
Court below, if Mr Wilson has no objection?
HIS HONOUR: I have a judgment of the Master of 17 September 1996. Are those the reasons supporting the matter?
REUBEN: Yes, your Honour. There are orders which have been taken out. I have a copy for your Honour if you wish to have them.
HIS HONOUR: If you would hand that up it will help me find them on the Court file. Yes, I will hand that copy back to you. I have now located
REUBEN: The Master had before him the following material: he had the defendant's motion, that filed by the St George Bank, on 22 August
1996. That sought that the statement of claim be struck out and that the plaintiff's proceedings be summarily dismissed.
HIS HONOUR: There is one statement of claim which was filed on 4 July 1996.
HIS HONOUR: Was there any affidavit material?
REUBEN: Yes, your Honour. There was an affidavit in support of the motion by the defendant, David Singer, sworn 21 August 1996.
HIS HONOUR: Yes, I have that.
REUBEN: There was also - that affidavit referred to the fact that the plaintiff had filed a differential case management document and that was referred to at
the hearing before the Master. That document was filed -
HIS HONOUR: On 18 July?
REUBEN: Yes, your Honour.
HIS HONOUR: Was there any affidavit of Mr Wilson's that was relied on at the hearing before the Master?
REUBEN: Yes, there was; secondly, a motion filed by Mr Wilson which was also for summary judgment. That was filed on the date, I think
about 26 August.
HIS HONOUR: 26 August mined is marked.
REUBEN: Yes, and Mr Wilson had a supporting affidavit of the same date.
HIS HONOUR: Yes, I have that.
REUBEN: And a supplementary affidavit of 3 September 1996.
HIS HONOUR: Yes, I have that.
REUBEN: I can indicate to your Honour that at the hearing before the Master I did not take any objection to Mr Wilson's affidavit although I did say to the
master that I regarded it as containing objectionable material but I did not take the objection on the basis - I expected the court to admit the material as the basis for Mr Wilson's belief.
HIS HONOUR: Once these were complete rehearings but now they are appeals in a stricter sense, are they not? Once they were hearings de novo and now
they are rehearing in much the same way as an appeal to the Court of Appeal is from the decision of a Judge.
REUBEN: Yes, that is so. It is expressed as a hearing under s 75A of the Supreme Court Act. The word "rehearing" is in fact used there in
subsection - at any rate, the notes on that section seem to refer to it as a rehearing, but that is the relevant section, your Honour.
HIS HONOUR: I think Pt 60 r 10 of the Practice makes it plain in effect.
REUBEN: Yes. In any event, there was no oral evidence before the master and essentially I do not have a problem with your Honour looking at any of
the affidavit material.
HIS HONOUR: Essentially I think that for the appeal to succeed I conduct in effect a rehearing upon the same material but -
REUBEN: You are allowed to look at -
HIS HONOUR: There must be error demonstrated for me to upset the Master's judgment, as I recall it.
REUBEN: Yes, I would be submitting -
HIS HONOUR: You say the Master was right.
REUBEN: The Master was right but I do not think you will see there is any error. So I would be content for your Honour to look at the matter as though you
were looking at it from the point of view of the totality of the material that was before the Master.
HIS HONOUR: In the days of the hearing do novo the evidence could be presented again as s 75A (7) makes plain, the Court may receive further evidence but
it shall not receive that further evidence except on special grounds. So I can look at the material but I cannot look at further material unless it is on special grounds.
I will read the Master's judgment.
REUBEN: As to the special grounds, I do not take any objection to any further affidavit material that Mr Wilson may have.
HIS HONOUR: We will come to that in a moment. Let me read the judgment first. I have now read Master Greenwood's judgment.
REUBEN: If your Honour is reading Mr Wilson's affidavit, I regard the material as being objectionable in evidentiary terms but I have no objection to it
being read and I do not object to the court reading it on the grounds that it is intended as a submission.
HIS HONOUR: I think the best thing is simply - I think that is a sensible course, Mr Reuben, if you simply do not object. There is nothing of
evidentiary force in it.
REUBEN: Perhaps your Honour can note I have not taken objection.
HIS HONOUR: I grant leave for Mr Wilson's affidavit sworn 29 September 1996 to be filed in Court.
REUBEN: Could your Honour simply note I have not taken objection to the material having been placed before the Court, notwithstanding that I regard the
material as being objectionable in form and content.
IS HONOUR: You submit that the material is objectionable but you do not object to it.
REUBEN: I do not object to it as the litigant is a litigant in person and, in my view, should have it as a submission.
HIS HONOUR: I have read the affidavit of yours, Mr Wilson. Is there anything more you want to say to me?
PLAINTIFF: No, I think it is a very simple case.
HIS HONOUR: Mr Wilson, the difficulty is that the point the Master is trying to make is that there is a principle in the law that for legal purposed
anything is certain which can be rendered certain whilst that the Master said in dealing with your matter is that true it was that five years back one could not tell what the interest rates would be, they were
defined by formula, an objective formula, which permitted them to be ascertained when the five years came up. The bank could not simply then pick any rate out of its head, the matter had to
proceed on the basis of one of two rates which that bank published from time to time for the purposes of a wide range of transactions including your transaction and that by adverting to that when the five years was
passed a certain figure was obtained so that there was no uncertainty. I know you have put that submission to me again but the master's view of it appears to me in law to be correct.
PLAINTIFF: Your Honour, the argument you just said, can I find reference to that anywhere?
HIS HONOUR: Yes, you can. You can find it, apart from anywhere else, in Broom's Legal Maxims.
PLAINTIFF: Is it possible to get a page number?
HIS HONOUR: No, I cannot give you a page number from the Bench but - I do not know if you - did you study Latin in your youth, Mr Wilson?
PLAINTIFF: One year at high school.
HIS HONOUR: I have just written the maxim out in Latin for you, not to show my scholarly attainments but because if you go to Broom you will find it in
REUBEN: The loan is still current. The loan approval was dated 30 June 1995, so the five years has not yet expired, as your Honour has
indicated. That is annexure A to Mr Singer's affidavit. At the end of the five years he has an option to go on with St George's fixed or variable rate.
HIS HONOUR: I may have spoken as if the five years were up. I must confess I had not turned my attention to that but the matter will be able to be
determined in that way when the five years expires.
PLAINTIFF: Shouldn't the terms of the contract be established when the contract is made?
(For judgment see separate transcript)
PLAINTIFF: Whom do I appeal to now?
HIS HONOUR: You can now appeal to the Court of Appeal. I think leave may be necessary.
PLAINTIFF: From whom?
HIS HONOUR: From the Court of Appeal.
PLAINTIFF: So I appeal to the Court of Appeal for leave to appeal?
HIS HONOUR: I think that is the situation but you had better go and get your own advice about that.
REUBEN: I do not think leave is required.
HIS HONOUR: In any event, I am not here to render advice. The appeal is to the Court of Appeal and leave may or may not be required. I think Mr
Reuben is correct, that it is not required, because the proceedings are terminated as a result of my order. You must make your own enquiries about that, Mr Wilson.
REUBEN: I seek costs.
HIS HONOUR: Do you want to say anything about costs, Mr Wilson?
PLAINTIFF: It will keep on going and I think word is collective costs.
HIS HONOUR: I do not understand that expression but the usual rule is that if you are - unless there is some special reason, if you are unsuccessful in
proceedings you pay the costs in those proceedings. As you have lost the proceedings at the moment, unless there is some special reason why you should not do so -
PLAINTIFF: No, I intend to keep on appealing.
HIS HONOUR: That, of course, will change if you obtain an appellate order.
PLAINTIFF: I have to get justice somewhere, sir.
HIS HONOUR: I order the plaintiff to pay the defendant's costs of this appeal.
FOR JUDGEMENT, SEE SEPARATE TRANSCRIPT.Click Here