FEDERAL COURT OF AUSTRALIA

 Caldar v Carlsund [2007] FCA 781

 ADMINISTRATIVE LAW - judicial review - reviewable decisions and conduct - review sought of conduct of Deputy Registrar of the High Court - whether administrative or judicial

HIGH COURT AND FEDERAL COURT - Federal Court - procedure and evidence – summary disposal and stay of proceedings

 Federal Court Rules O 20 r 2

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 referred to

Gunter v Doogan [2003] FCA 667 referred to

RUSSELL CALDAR v DEBORAH CARLSUND AND PUBLIC TRUSTEE OF NEW SOUTH WALES

NSD 121 OF 2007

MADGWICK J

15 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                   The application of 30 January 2007 and the amended application of 6 March 2007 be dismissed.

2.                   The applicant is to pay the second respondent’s costs.

3.                   The second respondent is to be entitled to be paid its costs of the proceedings from funds retained by the second respondent in the estate of Rachel Isabell Gittoes on a trustee basis to the extent that its costs are not otherwise satisfied by order 2.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HIS HONOUR

1                     Mr Caldar, the applicant, appears in person.  He says that he presses both his original application to the Court filed on 30 January 2007 and his amended application filed on 3 April 2007.

2                     The order sought in the initial application was that an intended “Special Leave to Appeal Application be removed into the High Court list.”  This was a reference to an intended application dated 9 September 2005 for special leave to appeal to the High Court from three judgments of individual judges of the New South Wales Supreme Court; a judgment of Giles JA of 29 August 2005, a judgment of Campbell J of 8 July 2005 and a judgment of White J of 22 April 2005.

3                     The grounds of the application were said to be “Unconscionable Conduct, and Perverting the Course of Justice as referenced in the Applicant’s Statutory Declaration … attached.”  The statutory declaration is 246 paragraphs long and encloses various documents.

4                     It seems that the background to what has been a great amount of litigation is that Mr Caldar’s mother, the late Mrs Rachel Gittoes, had two sons, Mr Caldar and Allan Ramon Gittoes.  Mrs Gittoes died on 27 April 2001.  She left a will dated 21 July 1967 which, in the events that had happened, relevantly directed her trustee to sell and convert into money all her real and personal property, and to divide the same and to hold any unconverted property in trust for her two sons as tenants in common in equal shares. 

5                     On 23 January 1995 it appears that the late Mrs Gittoes signed a letter which said:

To Whom It May Concern

            My letter is to confirm I consent to my son, Russell Graham Gittoes [who as indicated is Mr Caldar] living in my house and upon my death I want him to stay living in my house and to keep my house for himself as long as he wishes.

            I have made this decision because Russell has taken care of me in my house, at some trouble and expense to himself, and in return I feel I should do this for him to help him in later life.

            I declare I have made this decision of my own free will, and have not been influenced by any person.

            Yours faithfully.

6                     Apparently for many years Mr Caldar looked after his mother.

7                     The Public Trustee of New South Wales, the respondent to the intended application for special leave to appeal, was granted letters of administration of the estate of Mrs Gittoes with the will annexed on 20 May 2002, the surviving appointed executor named in the will having renounced his position.  The Public Trustee proceeded to carry out the wishes of the testator as they were expressed in the will made nearly 30 years before the letter.  This involved, among other things, selling the house in which, as at the date of Mrs Gittoes’ death, Mr Caldar was living; his mother was by that time residing in a nursing home.  The funds obtained by conversion of Mrs Gittoes’ property into money were duly divided. The Public Trustee still holds a considerable amount of money in trust for Mr Caldar and has sought to pay it to him but he declines to have it.

8                     There has been a deal of litigation in which, in substance, Mr Caldar has sought to have effect given to his mother’s wishes as expressed in the letter.  He has formed the view that the Public Trustee has behaved wrongly, indeed with grave impropriety, and that there is much amiss in this regard in the state of public administration in New South Wales.  He has had no success in the Supreme Court. 

9                     The amended application in this Court seeks orders that the Public Trustee, whom Mr Caldar had joined as a second respondent in his original application to this Court, should be removed as a party and that he should have “default judgment” on his claim that “his Special Leave to Appeal Application be removed into the High Court list.”  He asks, “alternatively,” although really as preliminary matters, that I should disqualify myself from further hearing his case in this Court and that the case be referred to a Full Court.  I declined these preliminary applications.

10                  Ms Carlsund, the first respondent, was at all material times the Deputy Registrar of the New South Wales Registry of the High Court of Australia.  She indicated her intention to abide by any order of this Court save as to costs. 

11                  There had been previous efforts by Mr Caldar to have his grievances ventilated in the High Court.  He filed an application for special leave to appeal in matter S436/2003 in which he sought special leave to appeal against a decision of the New South Wales Court of Appeal but ultimately, on 1 April 2004, discontinued that application.  Two days before such discontinuance he filed another application for special leave to appeal (S109/2004) against a decision of the New South Wales Court of Appeal and named the Public Trustee of New South Wales as the respondent.  He failed to file application books as directed and the application for special leave to appeal was deemed to be abandoned pursuant to the High Court Rules.

12                  On 1 February 2005 Mr Caldar filed a summons seeking reinstatement of that application for special leave to appeal.  However, on 16 March 2005 Gummow J dismissed that summons.

13                  There apparently followed extensive correspondence between Mr Caldar and officers of the Court in relation to Mr Caldar’s wish to file another application for special leave to appeal.  Of the intended application with which I am concerned Ms Carlsund took the view that it would be in breach of the rules of court of the High Court in a number of respects, namely:

·                    seeking to roll three separate decisions of three individual justices of the Supreme Court of New South Wales into one application;

·                    seeking to do so without first exhausting his appeal rights within the Supreme Court of New South Wales;

·                    seeking to do so out of time without applying for an extension of time;

·                    seeking to file an application for special leave to appeal without filing the supporting documents from the Court below required by the rules; and

·                    seeking to file the application with a statutory declaration to be made by himself in substitution for the documents required to be filed by the rules.

14                  The Public Trustee was at first disinclined to take any active part in these proceedings and indeed sought to be removed as a party.  Having regard to the complexity of the background and the legally unhelpful nature of the documentation then before me, I indicated that it would be of great assistance to the Court if the Public Trustee would act as a contradictor to enable me to appreciate and sort out the issues.  Reluctantly the Public Trustee agreed so to act but now wishes to have the matter go no further.

15                  The Public Trustee has moved the Court for orders that Mr Caldar’s application be dismissed pursuant to O 20 r 2 of the Federal Court Rules and that, except in relation to its ability to have costs orders for the proceedings to date, that it “be removed as a party to the proceedings.”  Order 20 r 2 provides relevantly that the Court may stay or dismiss or dismiss generally a proceeding or any claim for relief in a proceeding where it appears that no reasonable cause of action is disclosed. 

16                  The grounds asserted by Mr Caldar for relief against Ms Carlsund are many and various but I think they can be fairly summarised as being that she has denied the applicant natural justice; that she has behaved with impropriety and has exceeded her authority by purporting to shut the applicant out of the High Court although she is not a Justice of that Court; and that she has behaved in bad faith.  Nothing in the materials put before the Court would indicate that there is any arguable basis for any of these claims.

17                  It is also the position that, in seeking to apply the rules of court of the High Court to documents sought to be filed by an applicant which sought an exercise or purported to seek an exercise of the judicial power of the Court, a registrar, or deputy registrar as the case may be, is exercising the judicial power of the Court on its behalf and as such is acting judicially and not administratively: see, for example, Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34; Gunter v Doogan [2003] FCA 667.

18                  It follows that, in substance, Mr Caldar is seeking to have this Court call into question an exercise of the judicial power of the High Court.  It is not open to this Court to do that.

19                  The proceeding is doomed to failure.  Accordingly, the application of 30 January 2007 and the amended application of 6 March 2007 will be dismissed with costs.

20                  The respondent Public Trustee will be entitled to be paid its costs of the proceedings from funds retained by the Public Trustee in the estate of Rachel Isabell Gittoes on a trustee basis to the extent that its costs are not otherwise satisfied by the costs order I have just made.

21                  I will direct that a copy of the transcript of today’s proceedings be provided to the applicant without charge.

Associate:

Dated:         22 May 2007