Feb 10
23
Shotgun Justice
Another Koltai Rant of a personal nature.
It would appear to me that the Supreme Court in New
South Wales is more interested in clearing it’s
docket than ensuring that justice is served.
This might be because yesterday, I lost my case (filed in
March 2007) against Tricom Equities.
Or it might be that I had no idea what I was doing and being
forced to represent myself, had a fool for a client and had only six or seven
hours sleep in the previous four days.
But I get ahead of myself…
Last October, I sacked my former solicitors for gross
incompetence. Worse than that, they had taken a case that had some prospects of
being won to a case that was all about “gimme back the shares that I loaned you
ten years ago”.
That’s not what I instructed them to do, so I sacked them.
But his Honour decided that we would set a hearing date
regardless. So unrepresented, I started my search for a new solicitor and
Barrister.
However, with a hearing date now nailed to the cross bars of
the timeline.
One chap that I had worked with successfully in the past
took one look at my 57 page Chronology of events and said, “Sorry Tom, I can’t
fit this in amongst my other matters within your timeline.”
The next chap said, “Sorry Tom, I don’t the judge has
allocated enough time for us to get across this material.”
The third chap said, “Sure , no worries, send over the
material.”
“Well the other side have decided to put on a motion for
dismissal this Friday.”
The third chap said, “Well I can’t do anything for you before
Friday, I have a full schedule.”
In his voice I could hear that inflection of concern…..
So I bravely said, “Well, how about I do Friday, I think I
can handle their motion, how about I send over the material after I either win
or lose that motion”.
I won on the day and sent the material to the third chap a
few days later.
I rang him a couple of weeks later. His office was closed,
he was on holidays. On January the 27th he was back in his office,
“No worries he said, we’ll get the date vacated and get into this case. I’ll
need some money for counsel for the motion to vacate.”
The barrister for the motion to vacate did her best but the
Justice decided not to allow any more stays….. “The hearing date remains, the
22nd of February.”.
The following Monday (That’s last Monday, the 14th
of February) my solicitor rang me, “Sorry Tom, have to resign. Cant do the case
in the short time. I replied that “I understood.”
Wednesday, 16th of Feb,
Koltai: “I’m unrepresented again your honour…..”
His Honour: “The
hearing date remains and on the topic of leave to amend, I refer to Aon
v ANU.”
His Honour: “I have not yet received any documents from
either side?”
Koltai: “We are preparing an electronic court book and I
have been discussing it with the other side, it should be ready by Friday
morning for the Directions hearing your honour”.
His Honour: “We will not be doing an electronic anything for
this case, Mr. Koltai I expect this from you as you are not aware of how we do
things around here but as far as the
solicitors for the other side are concerned, they should know better.”
His Honour: “ When can I have your submissions.”
Koltai: “ Tomorrow at 4:00 pm
your honour”
So I had to get all my documents printed. There were ten thousand
pages in 702 documents.
How does one person get all that done.
My partner and I worked through the night. And the next day.
She had a nap in the afternoon.
I worked through. At lunchtime the following day I rang his
Honour’s associate, I’m afraid I won’t make 4:00
pm, could I deliver them to chambers tomorrow morning before the
directions hearing?”
Justices Associate: “His Honour won’t change the orders but
instructs you to do what you can do.
The biggest problem was on deciding what to include and what to exclude. As it turns readers will see that it made no difference that 67% of my evidence wasnt included……
The next morning at 6:00 am
my partner went to bed and I had two volumes x 2 for delivery to the other side
and the court.
Friday, the Directions Hearing.
His Honour: “I see you delivered some documents to my
chambers this morning, how are you going with putting together the material Mr.
Koltai?”
He smiled at me as he asked. It appeared that he was
starting to like me. A bit late in the case, but I would take all the
encouragement that I could get.
Koltai: “Well thank-you you honour, I hope to be ready for
Monday.”
His Honour Justice …… will hear the case on Monday.
Monday – The case
I lost.
The Judge decided that the witness for Tricom was far more
believable than Mr. Koltai because he didn’t hesitate when giving his answers.
Whereas I did, although he generously noted that it might have been because I
was acting as both advocate and witness.
His Honour adjudged that the witness for Tricom was not
involved in the case as he no longer worked for Tricom therefore had no
interest in the matter, and I as the plaintiff did have an interest in the
matter.
I tried to introduce an independent expert witness in the
matter, a former stock broker and lecturer in Finance at Macquarie
and UTS but the judge ruled earlier in the day that he wasn’t required.
Which was surprising, because later in the day his honour had
trouble with some of the terms relating to stock exchange transactions, which
made me wonder why we didn’t have the benefit of an expert witness.
On the subject of the witness having no interest in the
matter, his honour obviously didn’t consider the facts, that if the actions of the
witness did constitute a breach of the corporations act circa February 2001, (in
short selling non-existent ISP stock) then he would most definitely have a very
personal interest in the case.
Was justice served? Most definitely, a case was heard and a
decision handed down.
Did I think justice was served? Of course not, like anyone
that loses on the day, I considered that I was steamrolled by a system that
gives no quarter and takes no prisoners especially if you stand there and say
“I’m sorry your honour, I have no idea of what I’m doing.”
Did a case get removed from the overloaded Supreme court
dockets ?
Yes.
I shouldn’t say any more on the matter as I am considering
my options as to the next course of action.
However, I will opine a few observations for the use of
anyone considering representing themselves in a civil case in the NSW Supreme
Court.
1.
Don’t bother claiming that you are inadequately
represented or research case histories
and offering them to the Judge. On the
topic of revisiting an order on from a previous Justice in the this matter,
(during a directions hearing) his Honour expounded that he was not here to sit
in appeal of the previous Justices rulings on this matter. So I offered Twenty-First Australia Inc v Shade and Anor Matter No 2428/98 [1998] NSWSC 325 (31 July
1998)
His Honour read the material and
then replied: “Well other Judges have the prerogative to do what they like in
their Courtrooms, that doesn’t mean it will occur here.”
I then offered DIETRICH v. THE
QUEEN [1992] HCA 57; (1992) 177 CLR 292
Which is a much cited
case in Australia
that essentially states that Dietrich represented himself because Legal Aid
only offered him representation if he pleaded guilty. The High Court found that
because Dietrich actually managed to win some of the points of his case (had
four of the five charges dismissed) which means that had he been represented he
might have won on all the charges.
His Honour merely looked at me
blankly. Obviously unimpressed by my attempting to establish that I considered
that I was not adequately represented.
2.
Ignore Practice
Note No. SC Eq 3. (The court ignores it – so you should too.)
a. Evidence
33. With the exception of evidence in support of interlocutory applications,
the former practice of filing evidence as case preparation occurs is to cease.
Timetables for case preparation should include provision for the serving of
evidence on the other parties but not filing it with the Court. Evidence
to be relied upon at trial will only be filed with the Court at the time
provided for in the Usual Order for Hearing.
34. Evidence to be relied upon in support of interlocutory applications is to
be served on the other parties and filed with the Court. Timetables for
preparation of such applications should include provision for that process.
35. The former practice of annexing or exhibiting documents to affidavits or
statements will only be permitted in interlocutory applications and otherwise
with the leave of the Court or pursuant to agreement between the parties.
36. In the preparation of evidence to be relied upon at trial any documents
referred to in any statement or affidavit are to be placed into the proposed
Court Book in chronological order.
37. Subject to an order of the Court or unless otherwise agreed between the
parties, the Proposed Court Book is to be established in electronic
form.
38. Prior to the preparation of a timetable for the serving of evidence the
parties are to agree on the manner in which the electronic form of Court Book
(the Electronic Court Book) is to be established including, where it is to be
established; which party/parties (or third party) will manage it and its
format. Such agreement should be recorded in the Short Minutes of Order for the
preparation of the evidence in the proceedings.
39. The Electronic Court Book is to be produced at trial. A hard copy
of only those parts of the Electronic Court Book that will be essential for the Court to
consider in determining the dispute between the parties is also to be produced
at trial.
Electronic Proceedings do not
exist at his end of the Court. In fact there wasn’t even a plug for my laptop (court
8C) so I was hamstrung throughout the day by lack of access to my notes, and
copies of documents. I had to keep asking the other side for access to their
copies of documents and a lot of time was wasted with me looking for scraps of
printouts that I had bundled together at 6:00 am (as a last minute thought) in
case I couldn’t power my laptop.
Asking for power doesn’t assist
with the Judge dismissing such request perfunctorily.
His Honopur: “Mr. Koltai, the Court cant concern itself with such requests”.
3.
Do not bother representing yourself, unless
several years of legal procedure history is under your belt. The other side
will object to each and every affidavit and exhibit you have put on for reasons
that are unfathomable and asking the Judge “Que” results in a reply:
“Mr. Koltai, I am not here to
tell you how to run your case”.
4.
And don’t bother asking the witness any question
about his actions that might lead to incriminate him. The judge won’t allow the
questions.
His Honour: “Mr. Koltai where are
you going with this?”
Koltai: “Your honour, these
questions are towards the credibility of the witness”
His Honour: “How do they go to
wards the witnesses credibility Mr Koltai?”
Koltai: “Could we excuse the
witness whilst I answer that question your Honour?”
His Honour: “ I don’t think that
will be necessary Mr. Koltai. Just tell me where you are going with this line
of questioning.”
Koltai: “Well your honour it goes
towards Malice and intent of selling non-existent shares and possible collusion
between the brokers to manipulate the market”.
His Honour: “Mr. Koltai, I am not
going to allow that line of questioning.”
Even though Tricom nearly managed to stop the entire ASX
exchange trading system last year because of exactly the same thing.
When I pointed that out to his Honour, the reply indicated
that Tricoms witness was no longer employed by Tricom at the time that the ASX
made a finding against the company and was of no interest to the court.
Yet in his ruling, he found that the witness was right to
rely on the ruling of the clerks in the back office of Tricom who were not
degree qualified that told the witness that shares could not be registered on
the ASX CHESS subsystem when a company was suspended even though my evidence demonstrated that an off market CHESS transfer could be effected.
“Que??????”
So there you have it. My case was that group of brokers got
together to ramp up the price of ISP Limited shares and then sell them into a
guaranteed placement arising from a convertible note that they had applied for
in principle (but not in practice – in other words they didn’t pay for the
convertible note until after the settlement of the shares that they ramped and
then sold.
The ASX had an agreement to share data with the ASIC.
The sale of 4.6 million shares could only have been the
shares of the Managing Director of ISP Limited (moi).
I didn’t know the shares would be sold, otherwise I would
have never lent them.
The ASX require Offices of Corporations that sell their
shares to notify the ASX. I didn’t know that they were sold so I didn’t notify
the ASX.
Therefore the ASIC commenced looking at ISP Limited and the
story goes downhill from there.
An Administrator was appointed in May of 2001.
I couldn’t vote my shares to remove the Adminstrator (who
was acting similar to Australian Kitchen Industries Pty Ltd v Albarran (200) 51
ACSR 604; [2004] NSWSC 1047 in that the Administrator was also the Accountant
for ISP Limited, it’s subsidiary Geko and the Plaintiff, Geilston); because the
Defendant hadn’t returned the shares.
His Honour only appeared interested in my statement that I
had no intention of selling the shares.
Your Honour, if you ever get around to reading this – there
are a lot of reasons for retaining title to shares. Selling them is the least
valid reason for an individual that has his life rolled up in the assets that
those shares represent.
For example, title to the shares would have enabled me to
look for other funding routes or to recover the assets (over a million dollars US) of the subsidiary Austel
Inc in the USA
which the administrator decided to walk away from.
Or to use the shares to vote against the conitinued involvement of a an Administrator that was desperate to cover their tracks.
His Honour had decided that I couldn’t ask any questions of
the witness to establish these facts so my case was dead in the water.
And don’t bother taking any ASX data reports and presenting
them as spreadsheets as the judge will dismiss them as being prepared by
yourself and therefore inadmissible.
His Honour: “Did you prepare this spreadsheet?”
Koltai: “Yes your honour, I took the data from an ASX
supplied CSV file of all Broker transactions in the month of February and
poured them into the spreadsheet, I then sorted the Transactions by Broker”
His Honour: “Well I don’t think the court can rely on
evidence prepared by you.”
Say what? Well what would the court rely on?
His Honour: “Mr. Koltai I don’t think that your questions to
the witness are going anywhere, and you are using this opportunity to badger
him.”
Koltai: “Well on the basis your honour, I have but one further
question for the witness and then he can be excused”.
Basically all roads to Rome
had been blocked – there was nowhere else to go.
Exit the balance of my case.
Game set and match determined by an umpire that had
obviously taken a dislike to me. Probably due to my forthright outspoken manner
which was something that couldn’t be tolerated in his courtroom.
I cant recommend self representation to anyone that want s
to have an ounce of self respect remaining after the court hearing.
And…. I certainly can’t recommend it to anyone that has
spent the previous six days printing out, cataloguing and numbering documents.
Dummy. That’s all I can call myself. None of the documents were allowed to be
admitted in evidence, so I should have used the time sleeping and thinking up
better rhetoric.
I understand the need for a judicial system and I understand
the need for expediency in that system, however I do not understand the need
for the system to penalize the player for lack of procedural knowledge.
Certainly I don’t understand the system that has to then
belittle a man that has lost everything due to the actions of the bona-fide
“believable witness”, including his standing in the community and his ability
to earn a living.
His Honour’s ruling was cutting and critical of my attempts
at self representation.
I didn’t write down the entire judgement because by half way
through I was feeling like going outside and jumping in front of the first bus
that came along.
The bits that I did write down were the factual
considerations of the case and of no real interest to Perceptric readers.
But the “good bits” from memory,
My evidence was unreliable and evasive and the witnesses
evidence was wrapped in diamonds presented in a setting of pure gold and lit by
the sun.
I would have thought that the system would guide and assist
the newbie.
All in all my experience of representing yourself before a
Justice in the New South Wales Supreme Court registers as a mighty -10000 on a
0-100 scale and is an experience I can not recommend.
Therefore if at a Directions hearing, a New South Wales
Supreme Court Justice instructs you that “We will have no more delays in the
matter ….. It will be heard next Monday”, and you happen to unrepresented because
your solicitor resigned because he considered that he hadn’t had enough time to
review the evidence of your matter, I
have just one piece of advice, run, as fast as you can the other way, because
it is certain that you are most probably so far out of your depth that you will
rue the day that you ever considered following the directions of a NSW Justice
and represent yourself..
Postcript:
Pre Trial Motions
Your honour, on the twelfth of February, His honour Justice _____
ruled against a motion to vacate today’s
hearing date quoting
AON v ANU
Which we would request that you consider to distinguish
based on the fact that we wanted to vacate to amend my statement of claim to
put damages back in.
Damages were in the original commercial list statement and
so this differs from the AON matter where they tried to introduce new claims.
The defendants have known about this for three years that
we’ve been seeking damages and are therefore not prejudiced.
We are not seeking to introduce new facts, only reinstate
the remedy available to the court.
The facts to date are that I was forced to terminate the
services of my solicitors in October last year due to their total incompetence.
I’m sorry if that’s too strong a word your honour, but they failed to follow
even the most basic of instructions and in fact were giving me instructions.
Now I have had solicitors that give me instructions before,
I’ve even had solicitors that told me to “Shut up, I’m trying to think”
however, all of those prior legal representatives achieved the desired goal.
In fact I have some considerable trouble with legal
representation your honour. The first firm ____
Lawyers merged and the merged firms business model didn’t appear to
include commercial litigation. I was asked for leave to withdraw from the case
and found new solicitors in about three months.
My last effort was to engage Mr. __________ and through the
good graces of Mr. _________________ a retired barrister who has been advising
me in a personal unofficial capacity, I thought I had the services of Mr. _____________.
I found out two weeks ago that Mr. _________ didn’t think my
case was upto scratch without an expert witness and therefore declined to
accept the brief for a matter that was due to be heard today.
Mr. ________ sought leave to withdraw and did so last
Friday, Mr. _________, my mentor is in hospital and here we are your honour,
with me representing myself without a clue as to what to do next.
However, it has been suggested to me that your honour might
entertain the reintroduction of the
Former statement of claim.
I am seeking damages.
Item 5 of the current claim states :
5 Such further or
other orders as the Court deems fit.
His honour Justice _________ suggested earlier this month to
Ms _______ acting for the Plaintiff – that the case could be split into two parts
with the first part, liability and with the damages component being heard
later. – I may have misquoted Justice ________ but I’m sure his orders, of
which I do not have a copy would clarify his exact words.
My Opening Remarks:
This case is about an agreement between the parties for the
loan of shares, what that loan of shares meant in the understanding of each
party; whether the Defendant adhered to the terms of the agreement.
However, the case is also about whether or not the terms of
that agreement were on ordinary commercial terms.
Further the case is about whether either party was damaged
by the other parties failure to perform.
The Defendant either by accident or design short sold shares
in ISP Limited at a time when short selling was still prohibited under the
Corporations Act. I reference
Supplementary Court Book Document 1109.
The Defendant then requested the assistance of the
Plaintiff.
The Plaintiff tendered it’s assistance even though the
Defendant had shown a great reluctance to
A)
pay for the convertible notes &
B)
confirm to which parties the convertible notes
were issuable too.
The Plaintiff requested no reward because it was assisting
the Defendant to ensure that it’s assets in ISP Limited were secure.
In this it relied on the Defendants various offers to the
Plaintiffs Director in his role as the Chief Executive Officer of ISP Limited,
a company that is not a party to these proceedings.
The Plaintiff was also under the misapprehension that
nothing of value was changing hands. The Plaintiff didn’t realise that the
shares would be sold.
Further the Plaintiff didn’t realise that the ASX and ASIC
had an MOU which insured that every blip on the ASX radar was immediately
reported to the ASIC.
Today the Plaintiff will demonstrate conclusively that it
did everything required of it from the Defendant yet it received little quid
quo pro in return, and as a result, the Plaintiff’s Director ended up with no
assets, was banned as a Company Director for two and half years, thrown out of
a country because of my ASIC file and was unable to find meaningful gainful
employment apart from a few consulting contracts.
.
The defence will no doubt respond to my evidence with their
own that contradicts certain aspects of my recollection of events.
I humbly ask this court for one favour, whilst they are
extolling the merits of their evidence, and that is, what evidence is there
that this benefited the Plaintiff in any way shape or form.
In Capital finance Australia,
anors v Tolcher Anors, Lindgren Heerey and Gordon JJ held at
(e)
the categories of uncommercial transaction are
not closed and are not confined to transactions that are lawful or enforceable.
The court must look at the totality of the relationship between the parties in
identifying and characterizing the transaction;
(f)
the standard to be applied is an objective one
to be assessed by reference to the company’s circumstances, including the state
of knowledge of those who were directing the company, such as the controlling
Director or directors; and
(g)
for a transaction to be “uncommercial” it must
result in the recipient receiving a gift or obtaining a bargain of such
magnitude that it cannot be explained by normal commercial practice or the
consideration must lack a commercial quality.
Because the final score was : Plaintiff = zero Defendant = 1
public company + 306,000 dollars in cash.
My Closing Remarks:
The Court will no doubt consider the Plaintiffs case to be rather
disjointed, an apparent attempt at throwing in the kitchen sink to either
obfuscate or as a result of not understanding legal protocols.
I will admit to the second, but as to the first, it is the
contention of the Plaintiff that there are many not obviously connected strings
of occurrences that produce any result.
The material has been included so that the court may obtain
some feeling of the state of mind of the Plaintiffs Director in January and
February 2001.
The Companies Act at
762(5) places particular reliance on the state of persons state of mind in the
determination of his conduct.
Although this little clause appears to have been temporarily
missing from consideration when ASIC interviewed myself about my unsuitability
as a Company Director.
In this matter, the Plaintiffs Directors state of mind was
that (A) and (B) were attempting to all sorts of various tricks to obtain the
listed shell for their own benefits.
The Plaintiffs Director saw (C) and the Defendant as a white
knight.
At that time, the Plaintiff was unaware of the conversations
and meetings between (C), (B), (E), (A) and (D).
However, the kitchen sink full of apparently irrelevant
facts and occurrences is why the Plaintiff
agreed, contrary to the advice of the Chairman of ISP
Limited, (J), to loan Geilston’s shares to the Defendant.
The Defendants Affidavit at line …… states that (C) and (B)
had a meeting to discuss Koltai’s unsuitability as Managing Director.
Notwithstanding that the Plaintiff agrees with the
Defendants comment about suitability or more specifically, lack thereof, the
Defendant acted after that date – in fact right up till June the 26th
as if he was the Plaintiff Directors best friend and was only there to help out
a mate of a mate (E.).
I realise that this makes me appear gullible, and
unsophisticated, and in that regard, the courts opinion would be correct, in as
much as far as the management, and operation of the a Public Company is
concerned, I knew nothing when I signed on, know less today and consider that I
should never have been forced to act in the role of Chief Executive,
specifically by people like (J) who should have known better.
That being said, Mr. (C) took advantage of my naivete.
Contrary to his evidence, he was aware that I did not realise that the shares
would be sold.
Had I been aware, I would not have agreed to loan him the
shares as the result would have required me to file the correct ASX form
advising the exchange that I was no longer the major shareholder.
As that would have damaged the ISP shareholders perception
of what I valued the company at, I simply wouldn’t have proceeded.
That fact alone makes a total mockery of Mr. (C)’s
allegation that I was in collusion with him to allow his clients to sell
non-existant shares and then pay for them after they had been sold.
Mr. (C)’s evidence has been cunningly constructed around the
documents tendered. However his statements hold less credibility than a kitchen
flour sift full of water and should be ignored by this court.
Without Mr. (C)’s interpretation of the events, we are left
with a Company illegally short selling and depending on the victim of the short
sell to save their butt.
ASIC found a case against Tricom for these type of
Activities only last year, fining them 1.35 million dollars.
Mr. De Crespny had reason to bring a similar action to my
own against Tricom in 2007.
I seem not to be alone in my experience.
I await the court’s decision.
When an individuals life has been destroyed by a system and that sytem considers itself to be a Democratic and Free Market based system, then the system has a Duty of Care to the Individual members of the system to ensure that they have the ability to clear their names and rebuild their lives.
Any Judicial system that refuses to recognise this is no longer working for the people.
References: