IN THE HIGH COURT OF AUSTRALIA.
Office of the Registry Sydney
No S127 of 1998
Between - JOHN WILSON Applicant
THE PROTHONOTARY Respondent
Application for special leave to appeal
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 2.17 PM
Copyright in the High Court of Australia
GAUDRON J: Yes, Mr Wilson, you appear for yourself, do you?
MR J. WILSON: Yes, your Honour.
GAUDRON J: Yes, thank you.
BUDDIN, SC: May it please the Court, I appear on behalf of the respondent. (instructed by the Crown Solicitor for New South Wales)
GAUDRON J: Yes, Mr Wilson.
MR WILSON: I would like to
start off with a few words as an introduction. I have made copies of these words, which I would like to read to the Court. Would your Honours like copies to follow the words?
GAUDRON J: We have a transcript, thank you.
MR WILSON: OK. Contempt of court is court, whether it occurs inside or outside any court in the land. Contempt of court is the interference with
the administration of justice, and is an offence against common law. Common law is a law of the States and it is a law of the Commonwealth. Section 80 of the Australian Constitution guarantees trial by jury on
indictment of any offence against any law of the Commonwealth. Indictment includes an information and a presentment. There are no State laws which preclude trial by jury for contempt of court, and if there
were, they would be invalid under section 109 of the Australian Constitution, and the covering clause of the Constitution Act, UK, says that:
This Act, and all the laws made by the Parliament of
the Commonwealth under the Constitution , shall be binding on the courts, judges and people of every State and every part of the Commonwealth, notwithstanding anything in the laws of any State;
Covering clause 6 says:
"The States" .... are parts of the Commonwealth.
As an Australia I am a subject of the Queen, and am entitled to the protection of the Crown and the charters such as Magna
Carta, which guarantees the inalienable right of trial by jury. This right is further protected by the other charters of the Crown, such as the Bill of Rights 1688 and the Petition of Right 1627. These
rights and freedoms have been fought for and died for by countless generations of men and women. Lest we forget. These charters are listed in the New South Wales Imperial Acts Application Act 1969 and an offence
against them is punishable by imprisonment.
English common law and the rights and freedoms granted by the charters of the Crown are our heritage because we are a constitutional monarchy, and we are under the Crown
of the United Kingdom of Great Britain and Ireland. These rights and freedoms are yours and mine. They belong to our children and our grandchildren. They belong to your children and grandchildren.
what is now the United States of America broke away from the Crown, they were forced to draw up the Declaration of Independence to ensure the continuance of these same rights and freedoms, and their system of justice
is founded on, and reliant upon, those charters of the Crown.
The role of the jury in the protection of liberty has been emphasised by numerous authorities and the High Court has the power to direct trial by
jury in any suit. This case is of national importance because (a) it is in defence of Australians' rights, and (b) it exposes the seriousness of judicial corruption. I have documented my experiences through
the courts over the last three years and ordinary people are amazed and horrified at what has happened.
Contempt of court is a serious offence and it is the only vehicle to bring the seriousness of judicial corruption
before the people. A conviction for contempt of court is personally very serious to me because it would mean deregistration as a dentist and the destruction of my livelihood, which in turn would mean the dispossession
of my home and the devastation of my family.
Trial by jury is trial by the country. With our heritage and the very survival of democracy at stake, the people must be educated and learn what is happening.
Judges are academics, and the weakest element in our community. They must be protected against subversion and must never be given absolute power whereby they can conceal their own incompetence, corruption
and treachery. They have sworn to do right, but when they fail they must be accountable to the people. Without trial by jury for contempt of court, judicial corruption knows no bounds. That is my
introduction. I have also filed ---
GAUDRON J: Mr Wilson, you must address yourself to the question of error in the court below.
MR WILSON: That is my establishment, the fact that Justice
Hidden has denied the right to trial by jury, and that is the error. It is a guarantee under Magna Carta and Magna Carta is in force in Australia. That is the error. And what I am appealing for now is that
Justice Hidden's ruling that Magna Carta has been overridden should be struck out, and that I am allowed my right to trial by jury.
The importance of trial by jury has been emphasised by many authorities. I
have, and you have, the case of Brown v The Queen. In that the judges in the High Court emphasise the important role that trial by jury has in the administration of justice. On page 179 Chief Justice Gibbs
The requirement that there should be trial by jury was not merely arbitrary and pointless. It must be inferred that the purpose of the section must be to protect the accused -- in other words, to provide
the accused with a "safeguard against the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge" -
He goes on to say:
the jury is a bulwark of liberty, a
protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral advantages (e.g., it involves
ordinary members of the public in the judicial process and may make some decisions more acceptable to the public) -
This is a common theme in the High Court.
GAUDRON J: Yes, but now, Mr
Wilson, the procedures for dealing with contempt are dealt with in the rules of the Supreme Court, are theynot?
MR WILSON: They are dealt with in a number of courts. They are dealt with in the High Court as well.
GAUDRON J: Well, so far as you are concerned, the procedures are dealt with in the Supreme Court
Rules, are they not?
MR WILSON: No. In fact, I have a letter from the Supreme Court of New South Wales - I am sorry I did not put this one in - but it is from the Chief Executive Officer and Principal
Registrar of the Supreme Court. The second paragraph says:
There is no State legislation which makes contempt of court an offence.
GAUDRON J: Yes, but the procedures for dealing with contempt are
set out, are they not, in the Supreme Court Rules?
MR WILSON: Yes, and I can find nowhere where they preclude trial by jury.
GAUDRON J: Do they say you can have trial by jury?
MR WILSON: It is my right to have trial by jury, and I am demanding that I have my right.
GAUDRON J: Well, that is what you have to establish. You cannot simply assert it, Mr
Wilson, you have to establish it.
MR WILSON: Trial by jury for contempt of court is the will of the people. There was a referendum in 1988 whereby the politicians tried to change section 80 of the
Constitution to exclude trial by jury for contempt of court, and the people said --
GAUDRON J: That is contempt of a court exercising federal jurisdiction.
MR WILSON: Contempt of court is contempt
of court whether it is any court of the land, inside or out. In the Constitution it does not say anything to the contrary. Contempt of court is contempt of court, and the people expressed themselves very
clearly by an overwhelming majority that trial by jury shall not be exempt for contempt of court. You have the voting figures there, you have the proposed alteration and that was rejected overwhelmingly by the
people. It is the will of the people that there should be trial by jury for contempt of court.
The other side, the opponents, quote Willesee back in 1984 in which the judges then said that the practice of trial
by jury for contempt of court was "obsolete". According to Magna Carta, the rights have been granted forever. So something that has been granted forever can never become obsolete. And also, in
the Bill of Rights and also in the Petition of Right referring to - in fact the Petition of Right actually restates Magna Carta. There is a section where it says:
that no freeman may be taken or imprisoned or be
disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgement of his peers, or by the law of the land.
and the law of the land is the Constitution, which guarantees trial by jury.
GAUDRON J: Now, would you like to read section 80 of the Constitution, Mr Wilson?
MR WILSON: Read section 80?
GAUDRON J: Yes, that is what - and see exactly what it relates to.
MR WILSON: I will read section 80 of the Constitution. It says:
The trail in indictment of any offence against any law of the Commonwealth shall be by jury --
GAUDRON J: That is right, "against any law of the Commonwealth". You are charged with contempt of court
of the Supreme Court of New South Wales.
MR WILSON: Which is part of the Commonwealth.
GAUDRON J: Well, it may be part of the Commonwealth, but it deals with --
MR WILSON: You cannot exclude New South Wales from the Commonwealth.
GAUDRON J: --- it deals with a distinct area of judicial power. It involves a distinct area of judicial power.
CALLINAN J:Mr Wilson, both the Commonwealth --
MR WILSON: I am a bit hard of hearing and I ask you to speak louder.
CALLINAN J:Both the Commonwealth and the States of Australia can make laws.
MR WILSON: And any law of a State --
CALLINAN J:No, no, you just listen to me for a moment ---
MR WILSON: -- which is inconsistent with a law of the Commonwealth is invalid under section 109.
CALLINAN J:No, Mr Wilson, you are not understanding what I am saying. They each can make laws within their own areas of power and the States have power to make laws for the regulation of the State
courts, and that is, in effect, what you are charged with, breaking a law made for the regulation of proceedings in the State courts.
MR WILSON: And if that law is inconsistent with a law of the
Commonwealth, that is invalid. And as reinforced by the Bill of Rights and the Petition of Right, which says:
noe Declarations, Judgements, Doeings or Proceedings tothe Prejudice of the People in
any of the foresaid Premises ought in any wise to be drawne hereafter into Consequence or Example.
So, the proceedings with Willesee where they said that - which is "to the Prejudice of the people"- is
null and void. And also in the Bill of Rights it says the same thing:
that the awards, doings and proceedings, to the prejudice of your people in any of the premises, shall not be drawn hereafter into
consequence or example -
So any time a court tries to disadvantage or take rights away from the people, those rulings are of no example, they are invalid.
There have been many learned people talk about
the importance of trial by jury. I would refer to Chapter 1 of this essay by Lysander Spooner, and there they go to the importance, the fact that trial by jury is:
a "palladium of liberty" - a
barrier against the tyranny and oppression of the government - they are mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
So, in other words, only
by putting such an important issue as contempt of court to the people can there be justice, and the court is purely here to administer justice, whether it is the High Court, Supreme Court or any court.
also the Universal Declaration of Human Rights, which is the United Nations Charter, also emphasises the importance of having "a fair ... and impartial tribunal". I cannot get a fair or impartial
tribunal from any judge because I have found in the last three years, as I have put in this leaflet, which I have also submitted to the Court, that in my experience "Australian judges are
liars, criminals and traitors", and I have listed their offence. I have gone into more detail in the publication which you also have before you in chapter 12, "What Crimes Have the Judges
Committed". Now I,list there the offence such as "concealing a serious offence", "...perverting the course of justice", "Judicial corruption". And there is no way other
than trial by jury can I get an impartial tribunal.
So, fundamentally, the Constitution, section 80, guarantees trial by jury for any offence against any law of the Commonwealth and New South Wales is
part of the Commonwealth. The will of the people must be respected. The will of the people was expressed in the referendum of 1988 in which they overwhelmingly rules out any question that contempt of court shall be
exempt from trial by jury.
So I can only say that in the interests of justice, there can only be trial by jury in my case. Thank you.
GAUDRON J: Thank you, Mr Wilson. We need not hear you, Mr Buddin.
The applicant's argument fails to distinguish between State laws regulating procedures in State courts and offence against the
laws of the Commonwealth. Section 80 of the Constitution has nothing to say as to the former. It follows that the decision of the Court of Appeal is correct and special leave is refused.
MR WILSON: Could I
interrupt there? Can the Court prove to me legally that I have no entitlement to trial by jury?
GAUDRON J: Do you seek costs, Mr Buddin?
MR BUDDIN:No, your Honour.
GAUDRON J: Special leave is refused, Mr Wilson, and the Court will now adjourn.
AT 2:36 PM THE MATTER WAS CONCLUDED
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
THURSDAY, 6 MAY 1999
020100/99 - JOHN WILSON v ST GEORGE BANK LIMITED
NOTICES OF MOTION
Mr Wilson appeared for himself.
Mr S Reuben appeared for the defendant.
REUBEN:Your Honour, what you have before you is the
defendant's motion for summary dismissal of the statement of claim filed in these proceedings. You also have before you a notice of motion filed by Mr Wilson for the leave to file a jury trial.
HER HONOUR:I see that notice of motion filed on behalf of the plaintiff, Mr Wilson, seeking a trial by jury.
PLAINTIFF:Could you just speak a little louder please?
HER HONOUR:Yes, I will. I am just hearing from Mr Reuben at the moment so will you take a seat?
REUBEN:That motion was filed contemporaneously with the statement of claim and there is also a motion filed by Mr Wilson for
discovery which was filed in court on 26 March 1999. Those three matters are in fact before you, but what we would be suggesting is that we should deal with the motion to strike out the statement of claim. If that motion is
successful, the other matters are, of course, unnecessary.
PLAINTIFF:Your Honour, my motions were filed before the opposition and I believe that they require precedence. They are about a very very important issue of
public interest and national importance.
HER HONOUR:Mr Wilson, the submission made by Mr Reuben is this. The notice of motion which is before me today brought by the defendant bank is one seeking dismissal of the
proceedings generally. Plainly enough if I were to make an order in those terms, there would be no utility in considering the two notices of motion that you have brought on and which are also before me today. That as a matter
of logic is irresistible. I think the convenient course is to entertain firstly the notice of motion brought by the bank. In the event that I dismiss that notice of motion, then it will be convenient to deal with the two
notices of motion that you have filed, one being for discovery and one being for a requisition for a jury.
PLAINTIFF:I believe, your Honour, that Magna Carta plays a part in so far as that no-one will deny or delay right
or justice and I think the issues of right and justice are of paramount importance and should be dealt with.
HER HONOUR:Those are matters, Mr Wilson, namely, the considerations of Magna Carta and more generally of every
citizen's entitlement to justice, are matters that you might wish to submit in relation to the notice of motion that Mr Reuben's client has filed and I will hear you in relation to that. However, on the question of the
order in which I deal with the notices of motion, I propose firstly to deal with Mr Reuben's notice of motion, so I will hear firstly from Mr Reuben and then I will hear from you.
REUBEN: The motion of the defendant
was in fact filed on 28 April 1999 and your Honour has already observed that in paragraph 1 it seeks a strike out of the statement of claim and in paragraph 2 a summary dismissal of the proceedings. We are in fact moving
essentially on a summary dismissal. The matters in support, the evidence in support is the affidavit of Patrice Emma Daily sworn 27 April 1999.
HER HONOUR:Do you have any objection to the affidavit of Patrice Emma Daily
sworn 27 April 1999 being read?
PLAINTIFF:No, I think it is just a compilation of documents where they quote orders entered on all the different dates. I'll challenge those orders are wrong and should not be given
any credence at all because they are based upon judgments which are wrong.
HER HONOUR:Very well, Mr Wilson, for present purposes do I understand that you have no objection to any part of the affidavit of Ms Daily?
PLAINTIFF:I have objections but -
HER HONOUR:My question is directed to whether you have objection to the admission of the material on this interlocutory application.
PLAINTIFF:As far as being admitted, I don't object to it being admitted, I object to its content but.
AFFIDAVIT OF PATRICE EMMA DAILY SWORN 27 APRIL 1999 READ.
REUBEN: I will take your Honour to the annexures and submissions.
HER HONOUR:Mr Reuben, is there any further evidence that you intend placing before me?
REUBEN: No, that includes the evidence of the defendant.
<CLOSE OF CASE FOR THE DEFENDANT ON THE DEFENDANT'S NOTICE OF MOTION.
<CASE FOR THE PLAINTIFF ON THE DEFENDANT'S NOTICE OF MOTION.
REUBEN: I am aware that Mr Wilson has an affidavit. It is sworn 3 May.
HER HONOUR:Mr Wilson, do you wish to place evidence before me on this notice of motion?
PLAINTIFF:I've put - as far as evidence, I put it
in an affidavit in which I presented my argument against the dismissal, the principle of that being that there is already a penalty in place whereby --
HER HONOUR:Mr Wilson, can you just at this stage direct me to the
date of the affidavit that you wish to rely on in relation to this matter?
HER HONOUR:3 May?
REUBEN: Filed and sworn that day.
HER HONOUR:Mr Reuben, as I understand it, Mr Wilson
seeks to read this affidavit. Do you have any objection to it?
REUBEN: I do, your Honour, but I have no objection to your Honour reading the affidavit for the purposes of familiarising yourself of the contents, but I do
wish to object formally to all parts of the affidavit except the following matters, your Honour: Paragraph 1 and paragraph (xii) and paragraphs 1 and 2 of that paragraph ending with the second sentence, "that the
HER HONOUR:I am sorry, Mr Reuben, just so that I can be clear about this, you object to the whole of paragraph 2 save for subparagraph (xii)?
HER HONOUR:And within that subparagraph items numbered 1 and 2?
REUBEN: Yes, until the end of the sentence of 2 ending with the words, "bank itself". I take objection to the rest of the affidavit on formal
grounds, essentially that the material contained therein is not evidence of fact in respect of which the deponent can depose, but I think he has put them forward by way of a submission.
HER HONOUR:Perhaps the appropriate
course might be for me to read the material and you have no objection to me doing that, Mr Reuben?
REUBEN: No, your Honour.
HER HONOUR:Then I will hear further from Mr Wilson.
AFFIDAVIT OF THE PLAINTIFF SWORN 3 MAY 1999 READ.
HER HONOUR:Mr Wilson, Mr Reuben has objected formally to the great bulk of the material the subject of your affidavit sworn on 3 May of this year. The reasons that he
advances in that regard relate to the circumstance that a great deal of the content of the affidavit the subject of objection is argumentative in the sense that it comprises your submissions, but it does not assert matters of
fact either within your own knowledge or matters that you are deposing to based on information and belief, citing the source for them. My preliminary view is that there is substance to what Mr Reuben has to say, but maybe we
can short-cut all of this.
PLAINTIFF:Could I make comment?
HER HONOUR:Would you just hear me out and then we will see. I'll certainly listen to you, Mr Wilson, but what I want to suggest to you is this. As I
understand it, Mr Reuben has no objection to my having regard to the contents of your affidavit as in effect submissions that you wish to place before me on the application that his client makes. If I take that course, it
doesn't by any means cut you off from addressing further submissions to me orally, but it is a convenient way perhaps of you putting a number of matters, if you would like, before me in written form. The material is before
me in that sense. Is that a convenient course?
PLAINTIFF:I believe that in the interests of justice, and that is what the court is primarily concerned with, that all the matters that I raised in the affidavit need to be
investigated and tried by jury. They are of such importance.
HER HONOUR:Mr Wilson, I don't want to cut you off, but I just want to direct your attention to the matter that is before me at the moment and that I am
giving consideration to. That is the notice of motion brought by the bank for summary dismissal of your proceedings. Now at this stage we are in this situation. I invited you to place before me any evidence that you would wish
to on that application, the bank's application for summary dismissal. You have sought to read your affidavit sworn on 3 May. What I have indicated to you is that that affidavit is, save for formal matters, the subject of
objection. However, Mr Reuben has, as I understand him, no objection to my having regard to the contents of it as submissions, that is written submissions, if you like, by you. I am seeking to resolve this aspect first and then
we will move on. I am willing to hear further submissions from you, but at this stage I want to clarify what evidence is before me. Now are you happy for us to proceed on the basis that I will have regard to the contents of the
affidavit that you swore on 3 May as, if you like, written submissions by you, but that it is not formally received as evidence for the reason that it is objectionable, so Mr Reuben contends?
PLAINTIFF:Well, it is backed
up by the differential case management document which I filed on 18 March, so as far as giving substance or body to my affidavit, it's already been filed in this form and I think you should have that before your Honour.
HER HONOUR: I will deal with that in a moment. The preliminary view that I take, Mr Wilson, is that there is substance to the objection which has been made to the contents of the affidavit of 3 May. Is there anything
further you want to put to me on that? I am not for a moment suggesting that I will not have regard to it as, if you like, your submissions. I am just looking at the question of the objection taken by Mr Reuben. Do you
PLAINTIFF: I understand, but I'm not --
HER HONOUR: I wonder if it can be resolved in this way, Mr Wilson. If you are aware that I have regard to the contents of the affidavit as submissions
advanced by you, do you wish to put anything further to me on the objection taken by Mr Reuben?
PLAINTIFF: It's all words as to what you regard as "regard" and whether you see as - well, if you are talking
about putting facts before you at this particular time, I would say that my statements - and they are statements, what I well and truly believe in the affidavit - are substantiated by the material that I have already submitted
in the differential case management document and -
HER HONOUR: The differential case management document, to what are you referring because at the moment I do not have that before me?
PLAINTIFF:It's been filed.
HER HONOUR:Just identify it for me?
PLAINTIFF:It has been filed on 18 March 1999 in the Common Law Division.
HER HONOUR:Is this a document that attaches a publication that you have produced called
"Banks and Judges"?
PLAINTIFF:That is the book containing the court's judgments and also there's an attachment of the bank document called "The Residential Loan Agreement Offer".
HER HONOUR:At the moment that material is not before me, Mr Wilson. I appreciate it may have been filed.
PLAINTIFF:I think that's an omission, I think it should be before you.
HER HONOUR:I understand that you -
PLAINTIFF:You should have it in the file.
HER HONOUR: I understand you tender on this application, do you, the book, "Banks and Judges" and the residential loan agreement? I understand those are two
items or two documents that you wish to tender. I will come back to those in a moment. What I want to deal with, just so that we keep track of things, is your affidavit of 3 May. As to that document, Mr Wilson, the approach I
intend to take --
PLAINTIFF: If Mr Reuben objects to annexure A and B, then this is crucial to the fraud which has been perpetrated by the banks since 1981 and it is such - of such national importance that it must be
allowed to go before a tribunal of people to ascertain exactly what is happening to this nation.
HER HONOUR: Is there anything further you wish to put to me? You understand, Mr Wilson, that there is an objection to the
whole of your affidavit, including the annexures, save for some formal matters? Effectively the whole of the affidavit is as an item of evidence the subject of objection. Now is there anything further you wish to put to me as
to why I should admit it into evidence?
PLAINTIFF: Well, I appreciate it is Mr Reuben's job not to let damaging evidence go before a trial by jury and I contend that the people should not be cut out of
proceedings, that's all.
HER HONOUR:I do consider that the objection is soundly based and accordingly, the approach I propose adopting is this. I will not admit those paragraphs of your affidavit save for paragraph 1
and paragraph 2, subparagraph (xii) up to and including the line "it was created by the bank itself" into evidence, in other words, 1 reject the balance of that affidavit. However, given the absence of objection by Mr
Reuben to this course, I do propose having regard to the contents of the whole of it as submissions made by you. When I say "the whole of it", I should be more precise. There are two annexures which I understand you
regard as matters of significance in relation to this application, that is the strike out application, and I'll just ask Mr Reuben about those.
Mr Reuben, what is your attitude to those annexures? I take it they are the subject of objection as well?
REUBEN: Yes, they are the subject of objection, but I would put them in the same category as the submission
HER HONOUR:My ruling going to --
PLAINTIFF:Could I make a comment on that as well because I regard the two annexures as relating to the statement of claim? They cannot be separated from the statement of
claim because I'm saying that the money the banks loan out does not exist and I think the figures from the Reserve Bank
cannot be ignored.
HER HONOUR: Mr Wilson, the ruling that I have made as to the admissibility
of the contents of the affidavit, save for those two formal aspects of it, covers the annexures and accordingly, they are not evidence in the formal sense before me. However, Mr Reuben has indicated again that he does not
object to me having regard to them as forming a part of written submissions, if you like, so I will deal with them on that basis.
I am sorry, Mr Wilson, there is some further evidence that you wish to place before me, as
I understand it. The first is a copy of the residential loan offer?
PLAINTIFF:Yeah. That is part of the differential case management document.
HER HONOUR:Mr Reuben, is that loan agreement offer an annexure to the affidavit?
REUBEN: It is in fact annexure P to the affidavit of Patrice Daily.
HER HONOUR:Do you understand that, Mr Wilson? The document
headed "Residential Loan Agreement Offer" is before me already, it being an annexure to the affidavit of Ms Daily.
PLAINTIFF: Yeah, but I filed that long befare Mr Reuben did.
HER HONOUR:Really that
is a matter of no consequence. The important thing is that the evidence is before me.
Let us deal next with the document titled, "Banks and Judges", being a publication apparently by you, Mr Wilson, is that
PLAINTIFF:That's right, yes.
HER HONOUR:Mr Reuben, what is your attitude to the tender of that document?
REUBEN: I object to the tender of this document as not evidence of the matters the subject
of this application. There is contained in this document some parts of judgments of various of the judges in respect of which orders were made and I'm obliged to point that out to your Honour. You will see when you have a
look at the statement of claim that Mr Wilson complains about costs orders that were made against him. Those costs orders arose from proceedings which were initially commenced by Mr Wilson some time ago before the Supreme Court
for orders to the effect that a variable rate interest loan of which he was not in default did not confer certainty of terms. The statement of claim was in fact struck out by Master Greenwood, which are matters which have been
deposed to in the affidavit of
Patrice Daily, and costs orders were made. There were a number of appeals right up to and including an application for special leave in the High Court which resulted in costs orders being made
against Mr Wilson. The situation is that this booklet does contain some of the judgments. It would be my submission that although it does contain the judgments, they are not relevant to the current matter before the court which
in respect of the statement of claim relates to the costs orders which we have annexed to the affidavit.
HER HONOUR: Is there anything you wish to put to me in relation to the tender of this document?
PLAINTIFF: Yes. The basis on which it was put together was the documents - the judgments from the Supreme Court through another appeal, through the Court of Appeal and then on to the High Court and the reason for that
sequence was because the initial - Master Greenwood said quite plainly that the rate itself is indeed certain when he is referring to variable interest rates or uncertain interest rates, and so on that basis the misjustice came
in at that first stage and everything else has developed from that, so all the judgments are wrong because that initial judgment was wrong.
HER HONOUR:Mr Wilson, I will just interrupt you, if I may, to make this enquiry.
Is the reason you wish to tender the document titled "Banks and Judges" that you wish to place before me the sequence of judgments in the earlier proceedings between yourself and the bank?
HER HONOUR:Mr Wilson, I think we can perhaps short-circuit that by my telling you that judgments of this court and indeed of the High Court - and I understand that the matter ultimately went to that court - are not
matters that need be the subject of tender by you, in other words, the court can inform itself of its own judgments or the judgments of other courts, so to the extent that you want to place that material before me, you can
refer me to judgments, if you wish to, in the course of your submissions. It is not necessary that you tender them. It might be, for reasons that Mr Reuben advances, that reference to the judgments given by this court or in the
High Court in relation to other proceedings are simply not relevant --
PLAINTIFF: No --
HER HONOUR:Mr Wilson, please hear me out.
PLAINTIFF: I thought you'd finished.
generally not finished halfway through a sentence. Now I just wish to resolve the question of the tender of the book, "Banks and Judges". My preliminary view is that it is not admissible, having regard just to a very
quick look at the document. You advance as the sole reason for seeking to place it before me, as I understand, the fact that it contains copies of judgments and, as I've indicated to you --
PLAINTIFF: That's not the sole reason.
HER HONOUR:Very well, Mr Wilson, you tell me the other reasons.
PLAINTIFF: The other reasons are to demonstrate my moral intention and my state of mind, the
fact that a citizen should be so motivated as to go to the extent that I have gone in order to achieve truth and justice and I think you'll agree that putting a publication like this is quite not a normal course of action,
but I have been driven into this position that I must document and the book has been lodged in the state libraries and in the National Library and so this is evidence which I wish to put before a jury, because a jury decides
not only the facts, but also the state of mind, moral intention and justice of the law and so therefore I don't believe that it can be truncated or stopped at this stage. It must go to a tribunal of the people and this book
is evidence not only of the judgments, but also of my moral intention.
HER HONOUR:I don't propose to admit it. The reasons that you advanced do not make it admissible on the present application.
Mr Wilson, is there any further material that you wish to place in evidence?
PLAINTIFF: Can I take one point up? You say that my moral intention is not an issue which you will consider.
HER HONOUR:I say my
ruling embraces this, Mr Wilson, that your moral intention in going to the trouble to publish yourself a book relating to a history of litigation between yourself and the bank is not in my view relevant on the present
PLAINTIFF: Will it be relevant to a jury because that's what I'm seeking?
HER HONOUR:I understand that that is a matter that you wish to agitate before me and in that regard you have
filed a notice of motion. Depending on the outcome of the notice of motion that I am dealing with at the moment, I will separately consider that issue, all right.
Mr Wilson, is there any further evidence that you wish to place before me on this application?
PLAINTIFF: On the application I would like to refer to again the statement in my affidavit whereby --
HONOUR:Mr Wilson, I am not inviting you at this stage to address submissions to me, although I will give you that opportunity.
PLAINTIFF: I will tender the - the fact that I have said that a penalty is already in place
ready to be imposed upon the dismissal of this case, so when it is dismissed, the penalty will be imposed without there having been a trial by jury.
HER HONOUR:Mr Wilson, I don't wish to cut you off, but I am trying
at this stage to focus your attention on the question if there is other evidence you wish to place before me. I am not suggesting that you need to, I simply wish to clarify that. If you have completed placing before me such
evidence as you wish to, I will hear submissions from Mr Reuben. I will hear submissions from you in due course and then finally from Mr Reuben in reply, if anything arises in that regard. That is the order that I intend to
conduct the proceedings in and at this stage I am just seeking to clarify the question of what evidence is before me.
PLAINTIFF: To clarify further that if you do decide to dismiss it, then the other requisition for
trial by jury and requisition for discovery will be thrown out with the bath water.
HER HONOUR:If the proceedings are dismissed generally, that must follow as a matter of logic, yes. However, I will hear you on that
question in due course. Do I take it you have no further evidence you wish to place before me?
PLAINTIFF: No, I think there's enough there.
<CLOSE OF CASE FOR THE PLAINTIFF ON THE DEFENDANT'S NOTICE OF MOTION.
REUBEN: Could I please take your Honour to the provisions of part 13 rule 5? This, of course, is a well-known section and the principles which
apply are well-known. The basic proposition on which the defendant moves is that there is no reasonable cause of action disclosed by the statement of claim and that in reliance upon that we will be in effect submitting, in
accordance with the High Court test in General Steel Industries Incorporation, that the matters as pleaded are so untenable that they cannot be supported in any fashion and could not possibly succeed, such that the statement of
claim and the matters raised by it are manifestly groundless and do not disclose a cause of action. There are other aspects arising from that such that those proceedings could be regarded as a vexation on the defendant and that
the proceedings are an abuse of process of the court by reason of that, but the principal ground relates to subground A, that there is no reasonable cause of action disclosed and similar principles apply in relation to striking
out of particular paragraphs of the statement of claim which, as a fall-back position, we --
HER HONOUR:You are moving now to part 15?
REUBEN: 15 rule 26, where the pleading under part 26 rule 1 subparagraph A
discloses no reasonable cause of action, then the pleading may be struck out.
HER HONOUR: Mr Reuben, you principally rely on the power that I have under part 13 rule 5 to dismiss the proceedings generally, there being no
reasonable cause of action disclosed?
REUBEN: That is so, your Honour, yes.
If I could invite your Honour first to look at the statement of claim filed by Mr Wilson? You see that the structure of that document
makes a number of allegations of fact. In paragraph 1 he suggests that there were costs of $35,146 awarded against him as a result of various judgments in the Supreme Court and in the High Court of Australia. In paragraph 2 he
makes a general allegation that a loan was drawn up by the St George Bank and he signed that document in order to obey the court order and in paragraph 3, that St George Bank drew a cheque on itself pursuant to that loan and
paid the costs ordered in its favour as a result of those costs orders. The balance of the matters contained in paragraphs 3, 4 and 5 are to some extent a pleading of evidentiary matters, but I don't at this moment feel I
need to trouble your Honour with those matters.
One needs to look at the relief claimed in the statement of claim in order to determine whether material facts have been pleaded to support the relief claimed. In paragraph
1 of the claim for relief the gravamen of Mr Wilson's claim is that the costs ordered by the courts as mentioned above are unfair because the judgments were wrong. Now what we have done in the affidavit evidence of Patrice
Daily is to in effect set out the costs orders which were the subject of the pleading in paragraph 1 of the statement of claim and exhibit those documents which are in effect raised by paragraph 1 of the statement of claim. The
submission that will be made in relation to that is that the matters which are shown by and exhibited by those documents, that they were judgments regularly obtained and that they are in fact proper and regular on the face of
it. The costs orders were in fact registered as a judgment after assessment and they were in fact encapsulated in a judgment of the Local Court because the costs assessments were as a result of a taxation in the High Court and
an assessment by a Supreme Court assessor and were in fact registered as a j udgment.
Paragraph 2 of the claim for relief claims that the residential loan agreement offer was signed under duress. Now what we say about
this aspect is that there is no pleading in the statement of claim that pleads any element of duress. There is not pleaded anywhere any suggestion of any unlawful threats or pressure or any unconscionable conduct which may have
influenced Mr Wilson or have resulted in a causative sense in the execution of the loan document by him. Moreover and more importantly, and this is a submission that I will come back to after taking your Honour to the evidence,
on the evidence as disclosed by virtue of the way that the loan application came to be signed, there is no way that such an allegation could be made out and it is these matters which we have put before the court to in fact show
that the loan application and the loan approval were brought about as a result of applications by Mr Wilson such that the loan was voluntarily entered into at his request and there could not be and there could never be any
basis for a pleading that the loan agreement offer from the facts as they are known was signed under duress, so the statement of claim ought not to be struck out as a bad pleading simply, but that in effect the cause of action
raised is one which is manifestly groundless and could not possibly succeed.
In paragraph 3 of the claim for relief the claim is essentially that the bank paid the $35,146.10 to itself and it would be seen that that was
done in accordance with the loan application in order to satisfy the judgment, so we would be submitting that there is nothing that is based on any particular cause of action which can succeed in relation to that claim.
We are then left with paragraph 4 of the claims for relief which is a claim by Mr Wilson that the loan which he entered into is invalid, he's seeking an order, but we take it that what he means is some sort of declaration
of invalidity, that it be struck out. We put that in the same category as the duress claim and we say that there is no pleading of any material fact which would give rise to any basis for the seeking of a declaration of
invalidity of the known documentation. That position arises again because of the chain of circumstances leading up to the execution of the loan document and that the entering of the loan document was one which was done
willingly and voluntarily at his request.
If I could just briefly turn to the evidence as filed and highlight those parts that I rely on for the purpose of these submissions, that is the affidavit of Patrice Emma Daily?
Taking your Honour first to the annexures, your Honour may recall that in reading the affidavit it was deposed to that the previous proceedings were commenced and summarily dismissed by Master Greenwood on 17 September 1996 and
that it was deposed to that the previous litigation was essentially concerned with whether loan documentation which the plaintiff had executed with the bank in relation to a variable rate interest home loan secured by
registered mortgage conferred certainty of terms. That litigation as disclosed by annexure A to the affidavit in that statement of claim was summarily dismissed by Master Greenwood and an order for costs was made against Mr
Wilson. Mr Wilson then appealed and an order for costs was made against him by the Supreme Court sitting as a court of review from the Master's decision. That order was made by Hamilton J. Subsequently, as disclosed by
annexure C, a costs order was made in the Court of Appeal against Mr Wilson as a result of refusal for
leave to appeal. An application was then made by Mr Wilson for special leave to appeal to the High Court and that was
lost and the application was refused with costs.
Annexure E discloses a certificate of taxation of the costs in the High Court in the sum of $19,056 and some cents and annexure F discloses that the Supreme Court costs as
ordered against him were assessed as $16,735 and some cents. Annexure FF discloses that those matters were in fact compounded into a judgment and registered in the Local Court in the judgment in the sum of $34,894.43 in respect
of which interest was continuing to run and accrue under the provisions of the relevant Act.
Then we start with the correspondence in relation to the loan and how the loan then came about. Annexure G to the affidavit is
a letter by Mr Wilson to the executive chairman of the St George Bank and the paragraph I place reliance on I will highlight to your Honour and that is paragraph 3, the sentence commencing,
"Last year they,"
meaning the bank,
"sent my wife a letter saying that the legal costs would be added to the mortgage even if they lost. Therefore we, my wife and I, thought that would be the case. In all a figure of some 33,000.
Please confirm this so that the matter can be got rid of. The mortgages are numbers"
so and so. What Mr Wilson was in fact asking for there is that the costs orders as made against him be added to any mortgage
indebtedness that he had.
The way that the loans are structured is probably self-evident, but they are loan agreements and they are supported by a mortgage.
On the second page of that letter at the top of the page, Mr Wilson says,
"Perhaps you can send the necessary papers if you want me to sign anything or, as I wouldn't be surprised, you just add the debt to the
balance sheet and send the cheque to the lawyers."
Then annexure H is a response by the St George Bank. Paragraph 3:
"St George would wish to document this transaction by you and your wife taking a new
loan ... for an amount of $34,792,"
setting out the calculation then and saying that St George is happy to waive the application fee for this loan.
"There will be a fee applicable of additional loan security due of approximately $85."
Then annexure I, the second paragraph, he writes to the lawyers of my instructing solicitor, Patrice Daily.
"When I have the second certificate,"
that is the taxation certificate, he'll present them to St George Bank and
''you should have your money.
The next annexure, annexure J: The
lawyers for the bank in the second paragraph seek to confirm that Mr Wilson will now approach the bank directly and apply for a loan to cover the costs, and unless they hear from him, they will assume that he still intends to
The next annexure, annexure K: The lawyers advise Mr Wilson, paragraph 2, that the assessments and the certificate of taxation have been entered as a judgment of the Local Court and they in the last paragraph give
Mr Wilson a deadline, otherwise they will be sending the sheriff out for collection.
The next annexure is annexure L. On 20 May St George Bank writes to Mr Wilson in terms of paragraph 3 that they are still willing to
consider a loan secured by the mortgage for him to pay the costs. If he elects to follow this course, enforcement proceedings will be haltered.
The next annexure is annexure M of 3 July. In the last paragraph Mr Wilson asks,
"It may seem a nonsense sort of thing, but when a cheque is issued by St George for the $35,000, to whom will it be made out?"
The next annexure is N. The lawyers are confirming that legal action will not cease until the moneys are in fact paid and that arrangements between them and the bank are not a matter that should concern him because the
orders are in fact regularly obtained and the legal costs that are owing to the bank are required to be paid by him.
Then some time later the loan application is finally made by Mr Wilson which is the next annexure and
one will see that that was done on 10 July by looking at the last page of annexure N. The document has therefore no other purpose other than to show that an application on the first page was made for the amount of $35,200 for a
3 year fixed interest loan and that that application was made by Mr Wilson and what appears to be his wife on 9 and 10 July respectively.
The next document, being annexure P, is the bank's formal offer for a loan dated 14 August 1998. The first
page at the top of the page indicates that it was for a loan amount of $35,200 for 3 years and the rate was
referred to as 6.89 percent. On the last page of the loan documentation the loan was signed by the borrowers, that is page 7 of seven pages, Mr John Wilson, on 14 October 1998, and his wife Laraine Joy Wilson.
document shows that it is an internal document of the bank showing in schedule form the loan acquired, $35,200 and the interest rate.
The next document, annexure Q, is a document from Mr Wilson to the bank which is
placed there to show that the bank in fact did comply with a request on his behalf to provide him with a photocopy of the cheque made payable to the bank and that Mr Wilson in fact acknowledged in some sense that he received
That brings me back to the submissions which are twofold. One is that in respect of the orders for costs made against Mr Wilson, that the statement of claim can have no basis because in essence those
costs orders were regularly obtained, registered as a judgment in the Local Court where a certificate of judgment has arisen. The matters as sought by way of relief by Mr Wilson to say that the costs ordered against him were
unfair because the judgments upon which they were based were wrong is not a matter which can be entertained by this court in this jurisdiction, that they are matters which were previously the subject of appeal and the appeal
process having been exhausted, does not admit any basis for the relief claimed in paragraph 1 of the statement of claim.
As to the second real basis of this submission, namely that the residential loan agreement offer
was signed under duress or that there was some basis of unconscionability that should give rise to a declaration that the loan should be declared invalid and be struck out, we say that the correspondence as exhibited to the
affidavit, commencing from 8 December 1997 right through up to and including the acceptance of a loan offer by the bank on or about 14 October 1998, demonstrates that Mr Wilson willingly and voluntarily at his own request
entered into the loan documentation and that the money was paid for the purposes as all those matters requested and that there is no basis upon which it could possibly be set aside as unconscionable or as a loan document
entered under duress. Moreover, there are no facts pleaded which would give rise to any basis for the court entertaining a claim that such relief could be made out either on the pleadings or on the evidence as the documents
May it please, your Honour, those are my submissions.
PLAINTIFF: Your Honour, I believe this court is concerned with righting wrong.
HER HONOUR:That is a very broad submission, Mr Wilson.
PLAINTIFF: I submit that none of these actions in the last three years would have come about if Master Greenwood had simply said that "variable" means
uncertain, but he didn't. He said that the rate itself is indeed certain and from that statement we have had a progression through various courts trying to overturn that wrong statement, so this is why the matter must go to
a jury, to the people to decide whether variable interest rates render a contract void for uncertainty. That is the whole crux of the matter and when Mr Reuben refers to signing the second statement that I signed, the loan
agreement offer under duress, the duress came from court orders forcing me to pay that money. Those orders were wrong from the very beginning.
Now Mr Reuben said that the judgments were proper and regular. The judgments
were wrong and I believe it's reached the point in time where the people of Australia, represented by a jury, must be brought into this matter because it is of national importance.
HER HONOUR:Mr Wilson, I don't
wish to curtail you in the presentation of your submissions, but I would like to direct your attention to a couple of matters so that you have the opportunity to put your case fully to me. You have asserted firstly in general
terms that the decision of Master Greenwood was wrong and I take it from that that the various decisions of subsequent judicial officers dealing with your appeal proceedings were wrong too. You would understand that though that
is a belief you are entitled to maintain, it does not give you a cause of action before me.
PLAINTIFF:Oh, I disagree violently with that - not violently, but strongly, because if you can't protest against injustice,
what purpose is there of a court?
HER HONOUR:Let me try and focus your attention on this aspect, if I might. In your statement of claim, Mr Wilson, you set out under the heading, "The Plaintiff Claims", in four
paragraphs the relief which you seek. The first paragraph takes up the matter that you have just been agitating with me relating to your view that the award of costs against you was unfair for the reason that Master Greenwood
was wrong in the initial decision. In paragraph you contend that the residential loan agreement offer was signed by you under duress. Now if I can just direct your attention to that for the moment, am I right in understanding
that your submission is that the duress on which you would rely if these proceedings were to continue is the circumstance that the court orders placed you in a position where you were constrained to enter into the loan
PLAINTIFF: Yes, I felt I had no choice, that the whole issue is to save my house and if these matters are dismissed, then my house will be lost and I'll be destroyed.
HER HONOUR:The duress on which you rely derives from court orders?
PLAINTIFF: Do you mean the duress part, you mean?
HER HONOUR:Yes. I am restricting your attention to paragraph 2 of the second page of your
statement of claim.
PLAINTIFF: I believe "duress" means pressure and unjust pressure, that I was forced by court orders, by the taxation order, by the Local Court order and I believe all those orders are
unfair and this is why I had to go into this offer.
HER HONOUR:Do you understand the submission that Mr Reuben has made is to say this, the affidavit evidence that has been placed before me on this application by his
client discloses correspondence between yourself and the bank and between yourself and the solicitors retained by the bank and that correspondence suggests that you sought from the bank a financial accommodation to dover the
costs of the --
PLAINTIFF: Well, to get out from under the pressure put on me by the court orders, but consistently I've said that those orders were wrong because the judgments were corrupt.
HONOUR:All I am seeking to clarify with you is that the duress of which you complain is the pressure that you were placed under as you see it in consequence of the orders made by the court.
PLAINTIFF: Yes, I would like that determined by a jury.
HER HONOUR:Yes, I understand that. Let me take you now to paragraph 3 of your statement of claim and I am referring here to the second page of the document
under the heading, "The Plaintiff Claims", that section of the statement of claim that deals with the relief that you seek.
PLAINTIFF: Well, I haven't entered into evidence which I would do so before a
jury, the correspondence that I have put into the bank such as the 23 November, 30 October. All these are requests which they have not complied with, so this is what I want to put before a jury.
HER HONOUR:I am just
trying to ascertain at this stage what relief you seek in that paragraph. You complain that the bank refused to release documentation to establish the nature and source of the funds, namely the $35,000 that the bank paid to
itself, as you put it.
HER HONOUR:You say one should not have to pay for a loan when no money was lent.
PLAINTIFF: That's correct. This is why the annexure to my affidavit of 3
May comes into it whereby the money in existence and the currency in existence has a great discrepancy and, you know, it is a popularly held view that the banks create their own money and that money has not existed before they
write a cheque and this is the whole idea of discovery, to trace that, the authenticity of that money and they have refused to comply with my request. I had a conversation with one bank officer and he said the ledgers belong to
the Banking Treasury and cannot be released to the public and the idea of discovery is to get those documents which I believe are of importance.
HER HONOUR:In terms of the relief that you are seeking in this document, your statement of claim, you --
PLAINTIFF: It is to release documentation to establish the genuine nature and source of the $35,000. That
would be in the form of discovery.
HER HONOUR:So paragraph 3 you say is directed to an order by this court requiring the bank to release documentation?
PLAINTIFF: Well, I put in a notice of motion for discovery.
HER HONOUR:So that is in essence what you seek to do by paragraph 3?
PLAINTIFF: Yes, that's correct.
HER HONOUR:And to the extent
you contend in paragraph 3 in the final paragraph that one should not have to pay for a loan when no money was lent, are you seeking any relief in relation to that?
PLAINTIFF: That is the whole idea of discovery, to find out if the money existed to be a basis of a loan.
HER HONOUR:Just so I can be clear about it, paragraph 3
is, if I may put it this way, your discovery paragraph.
PLAINTIFF: Yep, yes.
HER HONOUR:You are not pleading any separate claim in paragraph 3?
PLAINTIFF: No, it all goes into the total picture of discovery.
HER HONOUR:Is there anything further you wish to put to me?
PLAINTIFF: Well, paragraph 4 is that it's all based on the previous claims,
that the loan should be struck out.
HER HONOUR:Why do you contend that it should be struck out?
PLAINTIFF: Because there's no legality of purpose to the loan, because the loan was based upon orders, court
orders which are in turn based upon judgments which are wrong and that constitutes no legality of purpose and also the fact that no money was lent.
HER HONOUR:Mr Wilson, I think it is important that you understand the
objections that are taken to your statement of claim and, indeed, to the proceedings generally by Mr Reuben. You understand that what is before me today is an application by the bank that I dismiss the proceedings generally and
the reason for that application being advanced is the bank's contention that your statement of claim simply does not disclose a cause of action that is valid? Do you understand that?
PLAINTIFF: I disagree with
that. I understand what he's trying to get at, but he's totally wrong in that respect.
HER HONOUR:Mr Wilson, I just want to focus your attention on this so you understand the nature of the application so that you
have the opportunity, if there is anything further you want to put to me, to do so. I want you to understand that I consider the application that is made on the face of it to have real merit, so I want you to be aware of that
so that you can put to me any matters that relevantly relate to the decision I must make.
PLAINTIFF: Well, you are considering the matters on merit.
HER HONOUR:What I am considering at this stage is the
question of whether your statement of claim discloses any cause of action that is tenable or, to put it the other way using another of the formulation, are the claims that you make in that statement of claim manifestly
groundless. That is the submission that you are here to answer.
PLAINTIFF: Well then, the grounds all come back to the initial case before that was heard by Master Greenwood whereby I asked for severance of the
uncertain part of the loan under common law and I believe the common law is an important issue and as far as the discovery, I believe discovery is in the interests of justice, not just my justice but everybody in Australia and
it is as simple as that.
HER HONOUR:Anything further you wish to put?
PLAINTIFF: No, I am just pleading justice and right.
FOR HER HONOUR'S JUDGMENT SEE SEPARATE TRANSCRIPT.
HER HONOUR:Do you wish to put anything to me on the matter of costs, Mr Wilson? You understand --
PLAINTIFF: Your Honour, the whole idea was to bring the issue of bank fraud before the people and all these
proceedings have been before judges who have prevented an important issue of national importance going to a tribunal of the people and that is a gross miscarriage of justice and an abuse of the court, so by denying the people a
say is contrary to the intention of good government. I just object to the denial of right and justice and if I could just quote from a comment from "The Annotated Constitution of Australian Commonwealth" by Quickand
Goram, it say that under a section called "Rights, Privilege in the
"The Magna Carta and petition of rights and the bill of rights ... his liberty from unlawful impairment and his property
By dismissing this case, you are in fact putting into effect a penalty without there having been trial by jury and so you are in contravention of the Magna Carta.
HER HONOUR:I understand
having regard to the submissions you earlier put to me, Mr Wilson, that you contend that you have a valid cause of action. For the reasons that I have given, I have made a ruling about that matter and that is now determined.
PLAINTIFF: But you are a judge, not a jury and the whole idea was to put the matter before a tribunal of the people, not judges, and this has been my problem over the last 3 years and this is why I've documented in
the book "Banks and Judges" that judges are preventing justice.
HER HONOUR:Mr Wilson, what I want to focus your attention on now is the question of costs. I have made orders in accordance with the notice of
motion brought by the defendant and in the ordinary event I would make an order that you pay the defendant's costs. I will do that, but before I do that, I should indicate when I say "I will do that", what I am
wanting to make clear to you is that that is what I will do unless you put to me matters that make it appropriate in the exercise of my discretion to consider some other order. Now that is what I want to focus your attention
on. The ordinary rule of the court, as you would understand, is that if a party is successful in the application that it brings, that party is entitled to have its costs paid by the party who is unsuccessful, so in the ordinary
course that is what I would do. Here the defendant has been successful in obtaining from the court the orders which it seeks. Is there any matter that would bear on the exercise of my discretion on the question of costs that
you want to put to me, not the merits of the action but the question of costs?
PLAINTIFF: I was in the High Court 2 weeks ago and I put the case that Australians have the right to trial by jury. As detailed in my
affidavit, there was a general outcry in the court and the barrister for the other side declined costs. I believe that is an admission that they are actually in the wrong, that an injustice has been brought about in the courts
by the judges refusing trial by jury and in this case here you are also refusing trial by jury and I think that's unconscionable.
HER HONOUR:Mr Wilson, in those other proceedings that you refer to, from something you
say, I understand that perhaps your opponent did not seek an order for costs. That is not the position here. The defendant is seeking an order for costs and I will give you one further opportunity. If there is any matter that
you wish to put to me on that, I will hear it, otherwise I propose granting an order in favour of the defendant in relation to costs. Is there anything further?
PLAINTIFF: Whatever I say is of no use.
Honour ordered that the plaintiff pay the defendant's costs of the proceedings and dismissed the plaintiff's notices of motion. See judgment page 8.)
HER HONOUR:In the light of the order made, it is an order that you pay the costs of the proceedings.
PLAINTIFF: I shall be appealing against this and it will go on and it's a matter of right and justice which
has not been served here today. Somewhere I've got to find justice.
HER HONOUR:It follows, Mr Wilson, in consequence of the orders that I have made that the notices of motion that you filed in the proceedings have
been dismissed because the proceedings have been dismissed.
PLAINTIFF: Have been terminated?
PLAINTIFF: Without a jury.
HER HONOUR:That is so.
There is nothing further you require, Mr Reuben?
REUBEN:No, your Honour.