THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER GREENWOOD
TUESDAY 17 SEPTEMBER 1996
20680/96 - JOHN WILSON V ST GEORGE BANK LIMITED

Plaintiff appeared in person
Mr S Reuben appeared for the defendant

MASTER: You are Mr Wilson, are you?

PLAINTIFF: Yes.

MASTER: Yes, Mr Reuben?

REUBEN: This matter comes before you having been specially fixed for hearing as Mr Wilson can only appear in person. You have before you a Motion filed 22 August 1996 which is the defendant's Motion to strike out the Statement of Claim filed by Mr Wilson for the proceedings to be summarily dismissed. In this regard I rely upon an affidavit of Mr David Singer which has been filed in the proceedings sworn 21 August 1996.

MASTER: Yes, I have that affidavit, Have you a copy of that affidavit, Mr Wilson?

PLAINTIIF: Yes.

MASTER: I have read it. Have you any objection to this?

PLAINTIFF: As far as I know it is in order.

REUBEN: You also have before you a Motion filed by Mr Wilson on 26 August 1996 and in support of that Motion Mr Wilson filed an affidavit of himself sworn 26 August 1996 and a supplementary affidavit of 23 August 1996.

In Relation to the affidavit of Mr Wilson sworn 26 August 1996, although my submissions could take to the objection to the whole, or a substantial part of the affidavit in relation to form, I do not take such objection because I expect that the matters can be put forward as Mr Wilson's understanding of the matters as raised and so I don't take any objection to the affidavit, or the internal parts of it.

I think I might proceed now to submissions. I have no other evidence.

MASTER: Have you any other evidence other than your affidavit, Mr Wilson?

PLAINTIFF: No, I rely on that. Can I reply why I put in the supplementary affidavit?

MASTER: Yes, you are entitled to later.

REUBEN: The loan documents which are loan approval documents you will find in the affidavit of Mr David Singer, my instructing solicitor. We have annexed those documents, which are the documents which are referred to in the Statement of Claim and the DCM documents filed by Mr Wilson, which are a little bit placed out of order. You will see from Annexure A to the affidavit of Mr Singer that Mr Wilson and his wife were granted the loan approval for a seven-year term in relation to a loan approval of $150,000 on the 3 August 1995.

(Submission by Mr Reuben on the application to strike out the Statement of Claim ensued, relying on provision of Pt 13 r 5, also referred to the plaintiff's DCM documents, referred to Tonnelli v Komirra Pty Limited (1972) VR 737 at 741.)

MASTER: Yes, Mr Wilson?

PLAINTIFF: Master, my case is very very simple, and that is that under this contract I don't know what I am going to end up paying for the loan. So as far as certainty of the terms I would interpret that to be in line with - I am not a lawyer, so I can't find those cases. The case mentioned in my affidavit issued on 26 August, which is paragraph 15, is the case of Scanlon -

MASTER: This is your first affidavit, yes, thank you, paragraph 15.

PLAINTIFF: In which Viscount Maughan says: "There is no … interest payable."

Interest payable is what I am seeking as far as certainty, to have a rate published in the year 2000. I have not got a clue what that will be and therefore that is uncertain. Any formula based on that uncertainty does not give certainty of terms.

So as far as the confusion about documents in my DCM, that order was taken strictly off a fax. My DCM is dated 18 July. I put in that series of inclusions which I believe should be called annexures, but if you look at the top of the page of the loan approval, you will see reference to the source of the fax. That has got the sequence that they came through, which is page 0002 (I haven't got "1") - 0003 (which is obviously out of order), 0004 ( which obviously refers to the cheque account and I am not disputing this at this stage), and 0006. So that is the order which I put the Statement of Claim together. But I wish to disregard any reference to that particular cheque account because I don'' regard that as a loan.

In regard to that $50,000 which has been reduced to $25,000, that was no more than a cheque account and I would like to show you the cheque book.

MASTER: This is not mentioned in the Statement of Claim, is it?

PLAINTIFF: No,  that's mentioned later in the affidavit that it is no more than a cheque account. The only thing that is before you is the $150,000. That is all I seek relief on, and nothing more than that. That's purely based on the - I don't know what the loan will cost because after five years I stated that I had a choice of either selecting a current rate of the St George bank or the variables. Now, I don't know what either of those rates will be and I don't think Mr Reuben can tell me either. So that was the uncertainty. What I wish to proceed by the Statement of Claim is to simplify in five documents by eliminating any reference to the changeover in the five-year period which relates to selecting either the further interest rate period at the rate applicable for the St George fixed residential loans at that time, or the St George variable residential loan interest rate applicable at that time. I believe that this loan $150,000 was raised and lent last year and the contract was crated at the time and we should have certainty of the terms as to how that loan will cost me and I just seek relief to achieve that certainty.

MASTER: Yes, thank you. Is there anything you want to put, Mr Reuben?
(reply by Mr Reuben.)

FOR JUDGEMENT, SEE SEPARATE TRANSCRIPT.Click Here      

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HAMILTON AJ
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?

REUBEN: Yes.

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 the -

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.

REUBEN: Yes.

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 Latin.

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      

THE SUPREME COURT OF
OF NEW SOUTH WALES
COURT OF APPEAL


40592/1996

CLARKE JA
ABADEE AJA


MONDAY 28 OCTOBER 1996

JOHN WILSON v ST GEORGE BANK LIMITED

The claimant in person.
Mr S Reuben for the opponent.


CLARKE JA: Mr Wilson, have you got a motion before us today? Is that the motion filed 21
October asking us to grant leave to appeal?

CLAIMANT: No sir, as far as I understand I don't need leave to appeal. That question was
raised before Mr Acting Justice Hamilton and he did not know if leave was needed, and in fact Mr
Reuben said that leave was not necessary, and the clerk confirmed that I did not need leave to
appeal.

CLARKE JA: But all that happened is that your statement of claim has been struck out, is
that so?

CLAIMANT:  Well, I am appealing all the way down the line, sir.

CLARKE JA: But your statement of claim has been struck out by the Master and the appeal
to Justice Hamilton was dismissed?

CLAIMANT: Yes.

CLARKE JA: But you can file another statement of claim.

CLAIMANT: I wish the same one to stand.

CLARKE JA: I understand that, but because you can file another statement of claim, my
understanding would be that it is clear that the order made is not a final order and you do need
leave to appeal.

CLAIMANT: Well, I would like to be instructed on how to go about it.

CLARKE JA: Do you wish to say anything about that, Mr Reuben?

REUBEN:  Yes, your Honour. Firstly, I do believe that Mr Wilson does need leave to appeal.
However, the situation as it was before Master Greenwood was that there was an order made for
summary dismissal of the action, not simply striking the statement of claim out; in fact, the motion
that was brought by the bank at that time was on two bases:
for a strikeout as well as for summary dismissal, and the matter proceeded on the basis of
summary dismissal.

Could I say to your Honour a motion of 21 October in relation to leave to appeal was in fact put on
by the bank because we considered that Mr Wilson did in fact need leave, so we asked that the
court consider whether leave be granted, but in the circumstances we also applied for an order
that leave be refused. Mr Wilson himself has filed a motion of 18 October 1996 which related to a
motion for prohibitive injunctions and mandatory--

CLARKE JA: Could you tell me first of all where is the order, the formal order of the court?

REUBEN: Could I refer your Honour to the affidavit of Patrice Emma Daly which contains the
judgment and the orders in sequential order, sworn 24 October 1996. Your Honour will see that
annexure A, pages 1 to 6, is the judgment of Master Greenwood. On page 7 are the orders as
taken out.

CLARKE JA: And then all that Justice Hamilton did?

REUBEN: Justice Hamilton looked at Master Greenwood's judgment and at page 15 is a
transcript of his judgment, and he refused the appeal, a matter which was before--

CLARKE JA: He dismissed the appeal so that the plaintiff's claim has been dismissed as on a
summary judgment.

REUBEN: That is correct.

CLARKE JA: Mr Wilson, so that you can understand, this court is not hearing appeals. It is a
motion; we are simply dealing with motions and I am surprised there is any suggestion you did
not need leave to appeal. I just want to have a look at the Act again. Mr Reuben, you said you
believed there was a need for leave to appeal?

REUBEN: Yes, it is set out at page 18 of the affidavit in a letter to Mr Wilson setting out the
provisions of the Act.

ABADEE AJA: That is where you advised about the order for summary dismissal and an
interlocutory order?

REUBEN: That is so. I must say Mr Wilson is correct in one respect in that after the judgment of
Justice Hamilton, he said where do I go from here, and Justice Hamilton said, you go to the Court
of Appeal. Then there was a discussion as to whether or not leave might be required and Justice
Hamilton in fact indicated to Mr Wilson that he should take his own advice, but at that point of
time I did indicate that I had a view that the matter being finally concluded, he could probably
appeal as of right.

CLARKE JA: This is section 101 (2) (i), is it not, that you refer to. It says this, Mr Wilson, "Appeal
shall not lie to the Court of Appeal, except by leave of the Court of Appeal from a judgment or
order of the court in a division of an application for summary judgment under the rules."

So it seems to me it is fairly clear that you need leave to appeal so that your appeal which you
have filed is incompetent, but to a degree you are assisted by the attitude of the St George Bank
which has asked this court to consider an application for leave to appeal, which is rather irregular,
but helpful in the circumstances.

You have to persuade this court that you should be given leave to appeal from a decision of
Justice Hamilton, and insofar as Justice Hamilton in effect says that Master Greenwood's
judgment is correct and his reasons are correct, we should perhaps direct our attention to the
judgment and reasons of Master Greenwood to hear why you say this court should set aside the
order or should entertain an appeal from the judgment, based on the reasons of the Master.

CLAIMANT: Yes. I have two affidavits to that effect. The affidavit explaining why I believe Mr
Acting Justice Hamilton's ruling was wrong - I filed that on 14 October, and went into the reasons
why in particular Acting Justice Hamilton's use of the legal maxim - and which I believe he
wrongly applied- -

CLARKE JA: That has got nothing to do with the problem, Mr Wilson.

CLAIMANT: It has to do with certainty, sir.

CLARKE JA: What Mr Acting Justice Hamilton said in the end was, there is not a great deal for
me to say, save that Master Greenwood's judgment appears to be to me correct, and indeed for
the reasons given by the learned Master, with which I agree.

So what the learned judge did really was to adopt the reasons and order of Master Greenwood,
so we are concerned to look and see whether there is nothing wrong with that judgment to
determine whether we should entertain an appeal, and we are not concerned with discussion on
certainty.

CLAIMANT: I refer you to an affidavit filed before Acting Justice Hamilton in court on 30
September.

CLARKE JA:I do not think that is before us because we only get documents that are filed
in the application before us.

CLAIMANT: It was filed in court, so you should have it.

CLARKE JA: It was filed in court before Justice Hamilton?

CLAIMANT: Yes.

CLARKE JA: That is a hearing in a division. When you appeal you come up to the Court of
Appeal and the Court of Appeal only has documents before it which are filed in the
Court of Appeal.

CLAIMANT, So I should have filed it again?

CLARKE JA: If you wanted to rely on it, yes.

CLAIMANT: I presumed if it was filed in court--

CLARKE JA: I understand, but that is not right. We have not got it here.

CLAIMANT: I have got my copy.

CLARKE JA: We will see if we can find it in the division file. (Copy provided.) We will take your
affidavit of 30 September as read. (No objection.)

CLAIMANT: I would like to draw attention to the affidavit I filed on 23 October, which included
copies of press releases from the Reserve Bank. The way that came about is I phoned up the
Reserve Bank--

CLARKE JA: We will try and find that first.

CLAIMANT: The main purpose of that is to establish uncertainty of future interest rates and I think
it is borne out by the material.

CLARKE JA: Any objection to any portion of this? (No objection.) You can take that as read - to
show that in the future interest rates are likely to be within possibly quite a large range, and your
point is that to say we fix the rate for five years, at the end of which there shall be a rate fixed, is
either the rate, St George's fixed rate for residential rates or St George variable interest rate at
the time - you say that creates uncertainty.

CLAIMANT: Yes sir.

CLARKE JA: Looking at the judgment it is not clear to me. Could you decide which of those two
you preferred.

CLAIMANT: I don't know yet.

CLARKE JA: In the mortgage document.

CLAIMANT: I don't know yet. It's too far in the future. can't make a decision.

CLARKE JA: All I am asking you is what does the mortgage document say that you can decide?

CLAIMANT: Yes, I make the choice.
CLARKE JA: It says five years, the rate is fixed. Thereafter you have got a choice of one of two
rates which are presently unknown but which, when you come to make your decision, will be
known.

CLAIMANT: In the future, not when the contract was negotiated.

CLARKE JA: What do you want to say in support of your argument that the Master was wrong?

CLAIMANT: Fundamentally it is all based upon the word "variable". All through the St George
Bank documents they refer to the variable rate, and variable means uncertain, and to put forward
a contract stating that the terms are uncertain- -

CLARKE JA: The term of the contract is not uncertain.

CLAIMANT: Yes sir, they are.

CLARKE JA: The term of the contract is absolutely certain.

CLAIMANT: No—-

CLARKE JA: Let me finish - - the term of the contract is absolutely certain. For example, the
parties agree that they will pay the variable bank rate - that is a curtain term. What is not certain
is what that rate will be at any given time, but that does not affect the certainty of the term of the
contract.

CLAIMANT: Yes, it does.

CLARKE JA: All right, you show me why?

CLAIMANT: Because referring back to that legal maxim, it is uncertain if it can be referring to
something that is not certain- -

CLARKE JA: Maxims are useful, but they are tools.

CLAIMANT: In absolute terms I don't know what those rates will be.

CLARKE JA: You could agree, for instance, to borrow money from someone who is a friend and
to pay no interest for two years, but if you have not paid it back at the end of two years, to pay the
interest at the rate that the friend dictated at that time.

CLAIMANT: It would have to be fixed.

CLARKE JA: You say that, but I am pointing out to you that is not in accordance with the law.
What certainty is required is certainty in agreement, certainty of the terms. It does not mean that
the result of those certain terms must be expressly and certainly be known at the time of
agreement.

CLAIMANT: If I could refer to the case cited by the St George Bank, which is Tonelli v Komirra.

REUBEN: It is referred to in Master Greenwood's judgment at page 4.

CLAIMANT: In Tonelli v Komirra the judge said "It was pointed out …" when the contract was
drawn. There was no uncertainty because the rate would have been fixed, and that is the case of
Jones J.

CLARKE JA: The judge gave his conclusion. The next paragraph indicates a disagreement with
that proposition. In my view the conclusion that follows is important.

CLAIMANT: I repeat the rate would have been fixed by negotiation with the particular borrower
and that means it is stated quite categorically what that will be.

CLARKE JA: You are making submissions. If I repeat your submissions and I disagree with every
word of them, they are not part of my judgment, except I am reflecting my view that your
submissions will not be accepted. You seem to read into the judge's statement his acceptance of
the submission. Mr Wilson, is that all you wish to say?

CLAIMANT: Variable means uncertain. The court must decide on that. Whenever you open a
newspaper there is all this marketing of interest rates. They are putting forward fraudulent
contracts.

CLARKE JA: It is your view if you go to the bank and say I want to borrow for one year and I will
borrow at your variable interest rate -

CLAIMANT: I would not do that.

CLARKE JA: Let us take a hypothetical argument for the moment. You say the contract is bad
from the start because it is uncertain.

CLAIMANT: Yes.

CLARKE JA: I think I have said enough that I don't have any support for your proposition at all.
Might I add the Commercial Court of the Supreme Court hears cases regularly involving variable
rates of interest and they are always accepted by the courts. The question is whether the term of
the contract is certain and if you agree to a bank's variable interest rate that is regarded by the
courts as a contract.

CLAIMANT: The courts are out of step.

CLARKE JA: You are saying two people cannot get together and say we want to have this
commercial transaction which involves variable agreements, you say that is not a contract?

CLAIMANT: That is not a contract.

CLARKE JA: The law says whether it is a contract or not.

CLAIMANT: The law says there must be certainty of terms. I have defined what terms are. Terms
are price, charges, fees are absolute. You must know exactly what you are to pay.

CLARKE JA: If you agree to buy a house in twelve months' time and you said the price will be
$100,000 plus any accretion as a result of the CPI is that valid or not valid?

CLAIMANT: Invalid, the CPI is uncertain.

CLARKE JA:I regard your statement as completely unarguable.

CLAIMANT: I regard the court as incorrect.

CLARKE JA: Yes, thank you.

CLAIMANT: Your Honour, is there a transcript being made -can I get every word of this?

CLARKE JA: Yes. There will also be a transcript of what I am about to say.

REUBEN: Could I refer your Honour to one section of Ritchie's Practice, because it may be of
use, page 116 just after section 101 in the commentary, the last sentence in the major paragraph
on that page. Wixted v Brown refers to summary disposal as being an interlocutory order.

CLARKE JA: I thought this was expressly dealt with by section 101.

REUBEN: It is.

CLARKE JA: Section lOlL, in a division of an application for summary judgment whether it is
interlocutory or not does not matter.

CLAIMANT: I get the feeling it is not going very well my way. If you decide leave is not granted for
me to appeal tů the Court of Appeal I presume therefore this motion for an injunction will not be
heard. To whom do I appeal for that?

CLARKE JA: Mr Wilson, you have engaged in certain advice from other judicial officers when, as
you probably should know, it is not the function or purpose of judicial officers to give advice. That
lesson has been demonstrated today when you have come here and referred to advice you
purportedly got from Hamilton AJ. Hamilton AJ's words should be spoken in a judgment or in
debate during argument. He gives judgment, you appeal or do what you like from that judgment.
The folly of a judge giving advice is a matter that does not present any magic at all. There is one
avenue of appeal from this court, and that is to the High Court of Australia and I say no more than
that.

FOR HIS HONOUR'S JUDGMENT SEE SEPARATE TRANSCRIPT.

CLAIMANT: Could you please clarify the situation regarding the notice of appeal to the appeals
court, because it has already been filed, the filing fee has been paid, the notice of appeal has
been written out with dates when the draft index shall be filed.

CLARKE JA: The notice of appeal will be struck out independently.

CLAIMANT: So there is no notice of appeal.

CLARKE JA:  So it goes now.

CLAIMANT: Can I ask what happened to the filing fee?

CLARKE JA: You will have to take it up with the Registry. I do not wish to be thought to be trying
to be difficult, but I don't know. You will have to take that up with the Registry. If, to the extent that
it is of any help to you, I would support any application you make for it to be paid to you. You can
put my support of this basis, that the notice of appeal was misconceived and followed from your
understandable lack of knowledge of the mechanics of the court.

CLAIMANT: No misconception, sir.

CLARKE JA: Then my support disappears.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
SydneyNo S190 of 1996

Between-

JOHN WILSON
Applicant

and

ST GEORGE BANK LIMITED
Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 2.24 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT:If the Court please, I appear for the respondent with my learned friend, MR S.Y. REUBEN. (instructed by Stewart & Co)

DAWSON J: Mr Wilson, is it? You are the applicant, are you, in person?

MR J. WILSON: Yes, I am.

DAWSON J: Come forward to the Bar table. Yes, Mr Wilson. You realize, of course, there are time limits on oral argument in this Court and you have 20 minutes to put your argument and the light will shine shortly before it expires. Then a red light when your time expires. That applies to everyone.

MR WILSON: In fact, I have prepared a short address which I have timed at 7 minutes.

DAWSON J: That will fit in the time nicely.

MR WILSON: Shall I do that now?

DAWSON J: Yes.

MR WILSON: I would firstly like to draw your attention to the notice of motion filed on 1 April 1997. I am reporting the crime of fraud being committed by the banks in the form of variable interest rate loans. The proof that this is a crime is contained in my summary of argument and the affidavit accompanying the notice of motion. I am also drawing your attention to an illegal Act of Parliament called the Australia Act 1986 which attempts to deny me my right to appeal to the privy Council. I have documented the proof that this Act is illegal in my submissions.

To summarize what I ask: that the Constitution Act 1900 be enforced, that the Bill of Rights 1688 be enforced, and that common law be enforced. I want the High Court of Australia to grant special leave to appeal and I move that the orders and the certificate in my notice of motion be granted.

In Part III of the respondent's summary of argument they say, "There is no lack of certainty". The interest rate for the final two years of the loan contract is uncertain, as explained in my statement of claim. They also say, "There is a clear mechanism for determining the variable interest rate when the time arrives". The loan contract was created in 1995 and the mechanism for determining the rate of interest after five years was not certain then and it is not certain now. The contract was void for uncertainty then and it is void for uncertainty now. This I have explained in my summary of argument.

They also refer to the maxim certain est quod certum reddi potest. This is not applicable here because the maxim means "if something is capable of being made certain then it must be considered to be certain". When the loan contract was taken out the interest rate for the final two years was not capable of being made certain and even now it is not capable of being made certain.

The case of Tonelli v Komirra Pty Ltd - I have that in item 2 of the material - should be disregarded because there Judge Smith said, at page 741:

And it was pointed out that, according to the evidence, the rate which each bank would have charged any customer upon any loan, whatever the amount or purpose, would have been fixed by negotiation with the particular borrower; so that it was not possible to identify any rate as being that currently charged by banks for any particular size or class of loan.

And, also at page 741:

In my view ... is that that provision ... refers to the only uniform rate that did exist -

In other words:

the uniform maximum bank overdraft interest rate prescribed and published from time to time by the Reserve Bank with the approval of the Commonwealth Treasurer.

would have been fixed into the loan contract and therefore the interest rate is not variable.

When I said to judge of Appeal Clarke, in item 3, that "I repeat that the rate would have been fixed by negotiation with the particular borrower and that means it is stated quite categorically what that will be", Judge of Appeal Clarke said, "You are making submissions. If I repeat your submissions and I disagree with every word of them, they are not part of my judgment, except I am reflecting my view that your submissions will not be accepted.".

When I said to Judge of Appeal Clarke, also in item 3, "referring back to the legal maxim certum est quod certum reddi potest, it, the interest rate, is uncertain if it can be referring to something that is uncertain". Judge of Appeal Clarke said, "Maxims are useful, but they are tools.".

The rates for the last two years of my loan do not exist. They are not yet known. They are uncertain. They did not exist when the loan was taken out and the contract made.

The Tonelli v Komirra judgment supports my case, not the respondent's. I could not find any case dealing with variable interest rate loan contracts.

The respondent's paragraph 3.3 is wrong, ie my complaint is as to the uncertainty of both choices after five years and it is clearly explained in my statement of claim, ie there is no certainty either way. The respondent has no defence and, if it were possible, the High Court of Australia should make a summary judgment in my favour today. To have a summary judgment was, in fact, the direction of the Supreme Court on 2 August 1996. I have that in item 4. But the respondent disobeyed that direction and filed a summary dismissal and, from those wrongful judgments being Master Greenwood on 17 September 1996; Mr Acting Justice Hamilton on 30 September 1996 and Judge of Appeal Clarke with Acting Judge of Appeal Abadee on 28 October 1996.

It is time for the judiciary to put its house in order.

In my differential case management document, filed 18 July 1996, was a letter to the St George Bank dated 6 March 1996 which included a copy of a leaflet I was distributing at the time entitled "Variable interest rates are bad because:". It explains "they are ILLEGAL" and how "they CONTRAVENE the principles of economics". That is in item 5.

Again I ask that special leave to appeal be granted; the injunctions be imposed; and the certificate be made.

Finally, in my summary of argument I have said that I would like to ask each Judge here today two questions and I draw your Honours' attention to item 6. Here those questions are laid out and, with your Honours' permissions, I would like to ask those questions now.

DAWSON J: Thank you. That is what you wish to say, is it, Mr Wilson?

MR WILSON: Can I ask the questions?

DAWSON J: It depends what the questions are.

MR WILSON: Do you have a copy of this?

DAWSON J: Which is that? Yes, we do.

MR WILSON: I believe we have Judge Dawson, Toohey and Kirby today.

DAWSON J: Yes.

MR WILSON: Your Honours, Judge Dawson, the first question is, "Does variable mean uncertain"?

DAWSON J: No, we cannot answer those questions, I am sorry.

MR WILSON: That is what I am asking. Can I ask the questions?

DAWSON J: No. You can ask different questions, but ---

MR WILSON: Because that is the basis of my case, uncertainty.

DAWSON J: I think we appreciate what the case is.

MR WILSON: That is all I have to say.

DAWSON J: Thank you, Mr Wilson. We need not trouble you, Mr Bennett.

Any appeal in this matter would not enjoy sufficient prospect of success to warrant the granting of special leave to appeal. Special leave is accordingly refused.

The applicant also seeks injunctions against the respondent precluding it from entering into loan contracts with variable interest rates and requiring it to fix interest rates in existing variable rate loan contracts. He seeks injunctions until an appeal can be heard. In accordance with the refusal of special leave to appeal the application for injunctions must be dismissed.

The applicant also seeks a certificate "to be presented to the Privy Council Office, London" to the effect that a right to appeal to Her Majesty in Council continues, notwithstanding section 11 of the Australia Acts 1986. Section 11 terminates appeals from any section of an Australia court to Her Majesty in Council.

The nature of the application made by the applicant for a certificate is far from clear. Plainly he does not seek a certificate under section 74 of the Constitution that a question concerning the limits inter se of State and Commonwealth powers is one which ought to be determined by Her Majesty in Council. Rather he seems to be seeking a declaration in the form of a certificate that it is still possible to appeal from a decision of an Australian court to her majesty in Council. That being so, it may be inappropriate to grant the relief which the applicant seeks upon a notice of motion.

Be that as it may, the substance of the applicant's contention is that section 11 of the Australia Acts is invalid. None of the arguments which the applicant advances to support that contention can be sustained. The main argument appears to be that section 74 of the Constitution guarantees the continuation of appeals to Her Majesty in Council. But section 74 applies only to appeals from the high Court to the Privy Council by special leave and, inter se questions apart, provided that the parliament may make laws limiting the matters in which such appeals may lie. In Attorney-General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161 it was held that the power given by section 74 extends to a law abolishing appeals by special leave. Section 11 of the Australia Acts is such a law, although it extends beyond those appeals to which section 74 makes reference. The applicant's argument based on section 74 therefore has no substance and none of the other arguments put by him would support the case he seeks to make. Even if it were competent, the application for a certificate must be dismissed.

MR BENNETT: I would ask for costs.

MR WILSON: I would like to protest that.

DAWSON J: You cannot do that here, Mr Wilson.

MR WILSON: I think that is totally out of order. I can do it here.

DAWSON J: Would you resume your seat, please.

MR WILSON: No. I am absolutely livid about the way I have been treated in the courts.

DAWSON J: Mr Wilson, will you resume your seat.

MR WILSON: Can I come back in a minute?

DAWSON J: Resume your seat.

MR WILSON J: Can I come back in a minute?

DAWSON J: Would you please resume your seat.

MR WILSON: I am not happy.

DAWSON J: You make an application for costs, do you, Mr Bennett?

MR BENNETT: For costs, your Honour.

DAWSON J: What do you say about the application for costs against you, Mr Wilson?

MR WILSON: I have already written in I think it was the summary of argument that I received a letter from the respondent's solicitors saying that they would disregard the jurisdiction of the Court and they would impose all costs on me, whether I won or not. Now, you will find that in the summary of argument as well. So I believe that the total progress of this case is totally unjust.

DAWSON J: That is not on the question of costs, Mr Wilson.

MR WILSON: This is to do with costs.

DAWSON J: Very well.

MR WILSON: Because as far as I am concerned the arguments I have put are very simple. It is the argument that "variable" means uncertain.

DAWSON J: We know what the argument is.

MR WILSON: That is it.

DAWSON J: Yes.

MR WILSON: That is all there is to it?

DAWSON J: Very well.

MR WILSON: As simple as that. And you, by overruling me, are overruling that logic. You are saying that variable means certain, and that is a straight out untruth.

DAWSON J: We appreciate the point you put.

MR WILSON: Do you?

DAWSON J: Yes, Thank you. Have you anything further to say, Mr Bennett?

MR BENNETT: No, your Honour.

DAWSON J: The application will be refused with costs. The Court will now adjourn sine die.

MR WILSON: I have one final comment.

DAWSON J: Resume your seat please, Mr Wilson.

MR WILSON: No, I am absolutely livid about this.

DAWSON J: Adjourn the Court sine die

MR WILSON: I regard this as a total injustice ---

AT 2.37 PM THE MATTER WAS CONCLUDED

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LEVINE J

FRIDAY 27 JUNE 1997

20589/1997 - JOHN WILSON v ACP PUBLISHING PTY LTD

Plaintiff in person.
Mr M O'Brien for the defendant.

PLAINTIFF: Would it be all right if I tape recorded what is said?

HIS HONOUR: No, you are not allowed to do that.

PLAINTIFF: There is no transcript.

HIS HONOUR: There will be a transcript.

O'BRIEN: We filed on Wednesday a notice of motion for an order that the proceedings be struck out.

HIS HONOUR: It is not on the file.

O'BRIEN: Perhaps I can hand up a copy. The plaintiff was sent one by courier on the day we filed it. Briefly put, the grounds upon which we would rely are that the statement of claim discloses no cause of action and that the remedy sought is a mandatory order on the publisher.

HIS HONOUR: Mr Wilson, what are you suing for.

PLAINTIFF: For defamation. The article because of the way it is written -

HIS HONOUR: You have answered the question.

PLAINTIFF: I want the true story to be told.

HIS HONOUR: If the cause of action is in defamation then your remedy is damages.

PLAINTIFF: To print the truth.

HIS HONOUR: What I propose to do is to grant you leave to file an amended statement of claim and you should delete paragraph 3. You are as bound, as you are no doubt aware, by the rules as to how you plead cases in this Court as anyone who is represented.

You get dangerously close to pleading a cause of action in defamation but not quite there. I will give you an opportunity to put it in order, the publication, and what you say it means and that you claim damages. You should refer in paragraph 1 to the publication. Under what you have described as the plaintiff claims you are getting close to pleading what it means and you should go to the rules of the Supreme Court and look up Part 67.

I will grant you leave to file an amended statement of claim and that is to be filed and served on Mr O'Brien's firm by 11 July and I will list the matter on 25 July 1997 and I will reserve the question of costs.

Everything that I have said has been transcribed and if you have to have a copy of the transcript you should order it through the Court Reporting Service.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

MONDAY 4 AUGUST 1997

20723/97  -   -JOHN WILSON V TERENCE GREENWOOD & ORS

Plaintiff in person unrepresented
Mr S Gageler for the fifth, sixth and seventh defendants

WILSON: I am asking for a date for a trial by jury.

HIS HONOUR: Why has the Registrar referred the matter to me?

(Notice of motion and affidavit handed up.)

MATTER STOOD IN LIST

GAGELER: The plaintiff was an unsuccessful plaintiff in earlier proceedings before the Supreme Court. His statement of claim was struck out by Master Greenwood. The proceedings were dismissed.. He then appealed to Acting Justice Hamilton and Master Greenwood's decision was upheld.

He then sought leave to appeal to the Court of Appeal and leave was refused. He then sought special leave to appeal to the High Court and special leave to appeal was refused.

In these proceedings currently before the Court the plaintiff seeks damages against the judicial officers involved in those earlier proceedings so he claims damages against Master Greenwood, Acting Justice Hamilton, Judges of the Court of Appeal and Judges of the High Court.

The matter conies before the Court today on the motion of the plaintiff for directions. What I seek today is to file in court, but have heard at a later date convenient to the Court, a notice of motion for summary dismissal. There are very short answers to the plaintiff's arguments. There is a doctrine of judicial immunity and, in any event, he does not plead any known cause of action. There will be a notice of motion, one for the Supreme Court Judges, one for the High Court Judges. The reason why they have hot been filed at an earlier time is that there has been late and extremely informal service on the defendants. We do not take any point about that but the matter being brought before the Court can and should be dealt with summarily.

I would seek to have filed in court with the Court's leave a notice of motion seeking summons or, alternatively, that the statement of claim is struck out with supporting affidavits which simply give the chronology of events in the Supreme Court and High Court proceedings.

WILSON: My reasons for bringing this action today, the barrister here says that I do not plead a cause of action. I think it is quite clear my cause of action and that is that great wrong has been done and -

HIS HONOUR: Mr Wilson, I am not hearing and deciding the matter now, I am just finding out what it is about because it came into my list during the morning and I do not quite understand what I was being told at that time.

WILSON: I understand also that we are just asking for a date different for his motion to be considered as my motion was already considered as well.

HIS HONOUR: It sounds to me if Mr Gageler gets leave to file his notice of motion to strike out your claim, the matter is ready for hearing so far as he is concerned.

WILSON: I would like any sort of hearing to be before a jury, not any single judge, because of my experience before judges as you see -

HIS HONOUR: You are not full of confidence in me then? You need not answer that question.

WILSON: I have got respect for the Court and I keep on hoping all the time for a fair deal and I hope you do the right thing plus -

HIS HONOUR: Unfortunately no jury is available to you in this matter but if Mr Gageler gets his leave to put his documents on today, are you in a position to respond?

WILSON: Well, I would like to hear his full argument before I have the answers f or it.

HIS HONOUR: Have you seen copies of the documents, Mr Gageler?

GAGELER: They are exactly the same documents as I have been producing all the time. There is nothing original in that.

HIS HONOUR: You would have no difficulty meeting -

GAGELER:No, I can argue every point.

HIS HONOUR: How long will it take?

WILSON: It is a very simple thing. I am looking for one line of truth and that is where the case begins and ends.

HIS HONOUR: You may regard it as simple but you have not answered my very simple question, how long will it take?

WILSON: For me to argue my case on that?

HIS HONOUR: Yes.

WILSON: One hour.

HIS HONOUR: Mr Gage1er, how 1ong will it take?


GAGELER:>From my point of view, no more than 15 minutes. There are several authorities of the High Court, Gallow v Dawson, which I would wish to refer your Honour to. Unless the Court is so minded, I was not asking for the motion to be dealt with necessarily today. I would be content for ft to be dealt with at a convenient time in the near future.

HIS HONOUR: You did make that clear, Mr Gageler.

WILSON: The barrister here is going to cite precedents. I would like to see those precedents and be given time to answer it. I cannot do that standing on my feet. I would have to go to the library and research it.

HIS HONOUR: How long would you want to do that?

WILSON: If he delivers me the precedents I could do it in a week, a fortnight.

HIS HONOUR: Well, the matter ought to be properly prepared.

WILSON: Absolutely.

HIS HONOUR: Because if Mr Gageler is right, it is the end of your proceedings.

WILSON: That is why you have to give me time to answer it.

When it first came up, the barrister for St George cited a case. I had never heard of it before, and only by getting out the judgments could I tear it to pieces.

HIS HONOUR: You ought to have that time. There does not seem to be any reason why Mr Gageler need file his documents in court now.

WILSON: No.

HIS HONOUR: What do you want to file?

GAGELER:I hand up the documents. There are two notices of motion, one by the first to fourth defendants and the other by the fifth to seventh defendants. They seek identical orders. I would seek to have the notice of motion returned instanter but adjourned to a date suitable to the Court, otherwise the application is for summary dismissal or, alternatively, that the statement of claim be struck out and in support there are the affidavits of John Holloway sworn 1 August 1997 and the affidavit of Christopher Matthew Dougan sworn 31 July 1997.

HIS HONOUR: I grant leave to the first, second, third and fourth defendants to file in court, returnable instanter, a notice of motion in the form of the draft which I have dated with today's date and initialled.

I grant leave to the fifth, sixth and seventh defendants to file in court, returnab1e instanter, a notice of motion in the form of the draft which I have dated with today's date and initialled.

I grant leave to the defendants to file in court the affidavit of John Holloway sworn 1 August 1997 and the affidavit of Christopher Matthew Dougan sworn 31 July 1997.

Is two weeks convenient for you, Mr Gageler?

GAGELER: Yes.

HIS HONOUR: Mr Gageler and Mr Wilson, you should understand in standing the matter into the application judge's list in two weeks you are not guaranteed a hearing date on that day. If the matter is ready for hearing and the judge has time to hear it on that day, the judge will hear it. If not, you will have to make whatever arrangements are appropriate to have it fixed for hearing.

WILSON: It may or may not be heard on that day?

HIS HONOUR: I am not guaranteeing you a hearing on that day.

GAGELER:Under Part 15 Rule 3 of the Rules time is running for the filing of a defence. Lest there be any misunderstanding about the making of the order, would your' Honour dispense with that rule?

HIS HONOUR: I dispense with the rule for time to file the defence until the adjourned day.

WILSON: Sir, do you set that date now for the next appearance?

HIS HONOUR: The matter will come into a list like this one in two weeks time.

WILSON: How will I be notified?

HIS HONOUR: Two weeks today.

WILSON: Yes, on the day.

HIS HONOUR: But, as I said to you before, you may or may not get a hearing date. Do you understand that?

WILSON: Today being the 4th, the next will be the 18th.

HIS HONOUR: Yes.

The plaintiff's motion for directions for the notices of motion filed in court today is adjourned to Monday, 18 August 1997 for hearing.