Telstra Corporation Ltd v Ivory

[2008] QSC 123

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(Judgment by: Lyons J)

Telstra Corporation Ltd
v.Ivory

Court:

Judge:
Lyons J

Legislative References:
Corporations Act 2001 - s 459G; s 459J
Bills of Exchange Act 1909 - s 28
Supreme Court Act 1995 (Qld) - s 259

Hearing date: 14 March 2008
Judgment date: 11 June 2008

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Judgment by:
Lyons J

The current applications

[1] There has been a longstanding dispute between Mr Kenneth Ivory who is the first respondent in BS 10536/06 and Telstra Corporation Ltd ("Telstra"). The dispute relates to a complaint by Mr Ivory that he suffered loss and damage to his various businesses, known as the Solar Mesh Entities, during periods from 1994 to 1996, when he alleges that certain telephone services were not provided to these businesses.

[2] During Telstra's Annual General Meeting on 14 November 2006, Mr Ivory served a Creditor's statutory demand on Telstra, dated 6 November 2006 ("the statutory demand"). The statutory demand, which was also addressed to the Commonwealth of Australia, was served by Mr Ivory on behalf of himself and "... the group of individual entities that he is the founder and managing director ... known as the Solar Mesh entities" who are the first, second and third respondents in BS 10542/06 and the second, third and fourth respondents in BS 10536/06. The alleged debt claimed was in the sum of five billion, three hundred and eighty six million, nine hundred and forty three thousand, seven hundred and sixty seven dollars ($5,386,943,767) plus interest as well as the "... overdue 22 September 2006 proportionate fully franked dividend payments."

[3] On 4 December 2006 Telstra lodged Originating Applications commencing two proceedings (BS 100536/06 and BS 10542/06) directed at the first respondent Mr Ivory and his six companies as respondents under s 459G and s 459J of the Corporations Act 2001 (Cth) seeking orders that the statutory demand be set aside.

[4] Mr Ivory did not appear at the hearing of Telstra's applications on 14 December 2006 and there was no appearance by any of the corporate respondents. The transcript of the hearing records that Counsel for Telstra advised the Court that Mr Ivory claimed not to have been served personally. The Affidavits of Service, however, indicated that service had been effected, within the 21 day time limit, by leaving the material at the place noted in the statutory demand as the place for service. The affidavit material also indicates that Mr Ivory was in contact with the solicitors for Telstra on 13 December 2006 and was aware of the application but disputed service.

[5] At the hearing on 14 December 2006 Counsel for Telstra proceeded to identify a series of problems with the statutory demand served by Mr Ivory at the AGM:

•

The statutory demand was also addressed to the Commonwealth but as it is not a corporation the Commonwealth is not an entity to which the procedure applies;

•

There was no affidavit attached to the statutory demand as required by s 459E (3) of the Corporations Act;

•

There was no basis for the statutory demand being considered as a judgment debt as the demanded debt is a judgment debt given by the Court of Faculties which is an ecclesiastical court of the Archbishop of Canterbury and has no jurisdiction to award the judgment in a civil proceeding. The jurisdiction of the Court of Faculties only relates to the appointment of notaries. A notary cannot in fact exercise the powers of the Court of Faculties. In any event, Telstra was not given any opportunity to defend the claim in that Court;

•

The purported Certificate of Judgment does not give judgment for any sum but merely witnessed Mr Ivory's signature on documents prepared by him;

•

The judgment debt had its origins in a document described as a Bill of Exchange but it is no such document as it records an agreement and does not state an amount or value on its face. In Gargan v Commonwealth of Australia and Telstra, the Supreme Court of NSW had already determined that this Bill of Exchange had not been accepted by the Commonwealth and is not liable on it. Accordingly, Telstra cannot be liable. No party has signed the bill as required by s 28 of the Bills of Exchange Act 1909 (Cth); and

•

Whilst the statutory demand did not refer to the underlying dispute in this case, the amount claimed is the amount which Mr Ivory alleges is due to him and his entities based on his underlying dispute. Telstra disputes the allegations which are at the base of the claims and there have been independent investigations, including one by the Telecommunications Industry Ombudsman which stated the claims had no foundation. There is therefore a genuine dispute as to liability and quantum of the claim underlying the "judgment".

[6] At the hearing of those applications, therefore, Counsel for Telstra submitted that the statutory demand should be set aside. A statutory demand is liable to be set aside pursuant to the provisions of s 459H(1) and s 459J(1) of the Corporations Act if there is a genuine dispute about the debt, if there is some defect in the demand, substantial injustice will be caused, or there is some other good reason. Having considered the affidavit material, Fryberg J ordered that the statutory demand served by Mr Ivory on Telstra be set aside and that he pay the applicant's costs of and incidental to the applications. Whilst extensive reasons were not given by His Honour, it was clear that his Honour considered that the statutory demand served by Mr Ivory was "all nonsense".

[7] On 11 January 2007 Mr Ivory filed applications on files BS 10536/06 and BS 10542/06 seeking the following orders:

1.

To have the orders, made in default of appearance on 14 December 2006, set aside;

2.

To have this matter decided by a trial before a jury;

3.

That all costs orders obtained to date by Telstra against Mr Ivory that are still outstanding or yet to be taxed be stayed and be dealt with as an issue in the jury trial sought;

4.

Requiring compliance with s 51 and s 259 of Supreme Court Act 1995 (Qld);

5.

That s 472 the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") be observed; and

6.

That costs be reserved to the jury trial.

History of Mr Ivory's dispute with Telstra and previous applications

[8] The current issues before me therefore relate to Mr Ivory's applications to set aside the orders of 14 December 2006. Mr Ivory, however, has a long and complex history in relation to a number of other matters in this court, in both the Trial Division and the Court of Appeal, which commenced a decade ago.

[9] The nature of the initial dispute was summarised by the Court of Appeal in 2002 in the following terms:

The extensive appeal record shows that the appellant has been involved in one way or another in actual or apprehended litigation with the respondent Telstra Corporation Limited since about 1994. That has included both personal involvement, and the appellant's interest in litigation conducted by a company or companies with which he is associated. For its part Telstra has made demands for payment of debts it claims to be owed by the appellant, or by a company or companies with which he is associated ... he has brought or caused action to be brought in which it is claimed that Telstra's conduct has caused substantial economic loss to the appellant and at least one company with which he is closely associated. Summarised, he alleges that when Telstra replaced 008 calls with 1800 calls, he suffered significant financial loss, either personally or through a company or companies he conducted, by reason of calls not received.

[10] A clear understanding of the issues Mr Ivory wishes to raise in his current applications is complicated by a number of factors. Mr Ivory confusingly refers to the same issues and facts in every court document he files, regardless of the file number and initiating documentation and many of the documents filed by him are not in the appropriate form. In many instances, he does not file documents at all but, rather, forwards documents by facsimile or otherwise sends documents directly to the judicial officer involved in the hearing of his matters.

[11] Essentially, all the actions in the last decade relate to a dispute with Telstra involving the damage Mr Ivory and his various companies claim they suffered during specified periods. As well as the two current applications, there are six other files which involve Mr Ivory and his companies, namely; BS 9084/99, BS 9083/99, CA 4059/01, CA 4223/01, BS 7433/05 and BS 5878/06.

[12] Mr Ivory also repeatedly requests that costs orders be set aside which have nothing to do with current proceedings but, rather, relate to the two cost orders made in file BS 9084/99 and in the two subsequent appeals from those costs orders, CA 4059/01 and CA 4223/01, as well as the cost assessment for BS 7433/05.

[13] Further, Mr Ivory repeatedly requests, in every document he files, that he would like his applications to be decided by a jury.

The history of this application

[14] After Mr Ivory filed his applications in these two matters on 11 January 2007, the applications were listed for hearing on 21 February 2007.

[15] Mr Ivory subsequently filed 12 affidavits in support of his applications on 15 January 2007, and a further affidavit on 21 February 2007. He has, therefore, filed 13 affidavits in relation to both files.

[16] A number of circumstances have prevented Mr Ivory's applications being dealt with in an expeditious fashion. On 8 February 2007 Mr Ivory became ill in the presence of the Supreme Court Senior Deputy Registrar during a costs assessment in a related matter. One week later, on 16 February 2007, Mr Ivory's wife died.

[17] On 19 February 2007 Mr Ivory wrote to Mallesons Stephen Jaques Solicitors ("Mallesons"), who are the solicitors for Telstra, and to the Associate to Moynihan SJA:

•

Alleging that someone in the respondent solicitors' firm had forged the signature of one of the original founding partners;

•

Foreshadowing an adjournment application on 21 February 2007 for medical reasons on his part with costs orders against the respondent;

•

Seeking the respondent's "approval" authorising the presiding Judge on 21 February 2007 to make a preliminary declaratory order based on all the material currently before the courts, including final orders if this order is favourable to Mr Ivory;

•

Advising that costs orders will be sought against the legal representatives personally including punitive damages;

•

Seeking an order that all costs orders obtained to date by Telstra that are still outstanding or are yet to be taxed be stayed, and become an issue before a jury of 12 jurors. The costs orders referred to relate to completely unrelated applications -- namely BS 9084/99 and BS 7433/05;

•

Alternatively, orders staying the two 14 December 2006 court orders, and an adjournment from 21 February 2007 to a date to be fixed, sufficient to enable him to deal with his grief and personal health risks.

The hearing on 21 February 2007 and subsequent events

[18] The first return date of Mr Ivory's applications was 21 February 2007 and on that date Mr Ivory appeared in person and sought an adjournment. Moynihan SJA ordered that the applications be adjourned to a date to be fixed with costs reserved, given Mr Ivory's ill health and recent bereavement. Mr Ivory was to inform the solicitors for Telstra by 4.00 pm on 30 March 2007 of a date by which he would be ready to proceed.

[19] On 30 March 2007 Mr Ivory advised Mallesons by facsimile, attaching a medical certificate, that he would require two months before he was able to proceed due to ill health. A further medical certificate from Dr Gordon Mor, dated 31 May 2007, indicated that Mr Ivory had a severe grief reaction to the sudden death of his wife, and that he also suffered from a heart condition and general cardiovascular disease. The letter advised that Mr Ivory required at least another two months before he could proceed with his court business.

[20] On 30 July 2007 there was a further letter from Mr Ivory to the Court, the Telstra Board, and others, which annexed the medical certificate dated 26 July 2007 from Dr Mor, advising that Mr Ivory would require at least three months before he would be able to carry on with court business. The letter also raised the following issues:

•

a reference to the two applications, and "... various court tax costing matters being unlawfully pursued";

•

a further request to have orders of 14 December 2006 set aside;

•

further allegations of wrongdoing by Telstra, their legal representatives and others; including failing to have the Originating Applications signed by a practising solicitor; thereby invalidating them; failing to properly file such application within 21 days of the statutory demand being made; failing to properly serve him with the originating process; fraudulently procuring court orders on 14 December 2006; allegations of a failure to disclose the respondent's alleged lien over the Commonwealth of Australia's shares for a debt of $5.386 billion dollars owing to him in the T3 prospectus; and

•

allegations that he was assaulted and battered by Telstra employees on 14 November 2006 in an attempt to prevent him from serving board members at the Telstra AGM a Notarial Certificate disclosing his "lien over shares".

[21] On 2 August 2007 Mallesons sought a review by a Judge. On 3 August 2007 Mr Ivory sent a facsimile to Mallesons , the Associate to Moynihan SJA and others, including the Telstra Board, and the Minister for Telecommunications, which:

•

referred to a facsimile by Mallesons on 2 August 2007 being unlawfully signed with a forged signature;

•

alleged failure of the Supreme Court Registrar to properly seal his two applications signed 11 January 2007, Telstra's Originating Applications filed 4 December 2006 and the Court's orders of 14 December 2006;

•

made reference to various matters raised in his letter of 30 July 2007; and

•

indicated his intention to rely on his medical certificates.

The directions hearing -- 5 November 2007

[22] A directions hearing was listed before me on 5 November 2007. On 2 November 2007 Mr Ivory sought to have the matter adjourned due to his medical conditions but was advised by the Registry that the matter would remain listed for a short directions hearing on that date and that he could provide written submissions if he was unable to attend.

[23] Mr Ivory did not appear at the directions hearing on 5 November 2007 but provided extensive written submissions. I made the following orders in respect of each application on that date (References to the 'applicant' in the order are references to the initial applicant Telstra):

1.

The application would be heard without a jury;

2.

Mr Ivory was to provide to the Court by 1 February 2008, reports about his current health and the prognosis in relation to his heart condition from his General Practitioner and Cardiac or other specialist;

3.

The applicant was to provide to the Court and Mr Ivory an amended Outline of Submissions and any further affidavits by 8 February 2008, such material was to relate solely to the issues in applications BS 10536/06 and BS 10542/06 and not to issues only arising in other proceedings between any of the parties;

5.

Mr Ivory was to provide an Outline of Submissions that solely related to the issues in applications BS 10536/06 and BS 10542/06 and not to issues only arising in other proceedings between any of the parties, by 29 February 2008;

6.

The applicant was to provide any Outline of Submissions in Reply by 7 March 2008;

7.

All objections to affidavit material and any responses to those objections were to be submitted in writing by 7 March 2008 and a determination in relation to that affidavit material would be made on the papers. The parties were to be advised of the ruling by 4.00 pm on 11 March 2008;

8.

The matter was set down in the applications list on 14 March 2008 at 2.30 pm with a time estimate of two hours and, pursuant to r 367 of the Uniform Civil Procedure Rules 1999 (Qld), one hour was to be allocated to allow Mr Ivory to make oral submissions and one hour to the applicant to make oral submissions;

9.

Either party had liberty to apply, on not less than seven days written notice to the other; and

10.

The costs of the hearing were to be costs in the proceedings.

[24] Mr Ivory did not provide the required medical reports by the requisite date. On 7 March 2008, however, a letter was forwarded to the Court by Mr Ivory, enclosing a letter from his General Practitioner dated 7 March 2008, indicating that Mr Ivory had ischaemic heart disease and angina and that additional emotional and physical stress "... may well result in a worsening of his symptoms or, worse, a life threatening cardiovascular event (heart attack or stroke)." He advised that it would be August 2008 before Mr Ivory was fit to attend his court matters. In a letter dated 26 February 2008, Mr Ivory's heart specialist indicated that Mr Ivory had ischaemic heart disease and moderate angina. He advised that "... he would not be surprised if these symptoms impacted on his ability to successfully conduct the legal processes in which he is involved."

The hearing -- 14 March 2008

[25] Mr Ivory did not appear at the hearing on 14 March 2008, having previously indicated to the solicitors for Telstra that he would be relying on his medical certificates to obtain an adjournment. This material was also forwarded to the Court. The first question that arose, therefore, was whether the matter was to proceed.

[26] Counsel for Telstra submitted that the matter should proceed as Mr Ivory had essentially been granted an adjournment in excess of 12 months and had been given ample opportunity to provide written submissions and to file any material in support of his applications. Furthermore, Counsel for Telstra contended that the applications by Mr Ivory are misconceived and as they are futile no further adjournments should be entertained.

Should Mr Ivory's applications be adjourned?

[27] A perusal of the material indicates that Mr Ivory had sent substantial volumes of material to the solicitors for Telstra and to the court. It is clear that Mr Ivory has, indeed, turned his mind to the actual issues necessary to support his applications and forwarded substantial material in support of his applications to the solicitors for Telstra and the Court. I note, however, that this material is in an inappropriate form and was not filed but, rather, posted directly to the presiding Judge.

[28] The current applications are Mr Ivory's applications that were filed on 11 January 2007 and relate to the original application by Telstra to set aside the statutory demand. That application by Telstra was in fact successful and the statutory demand in matters 10536/06 and 10542/06 was set side. Mr Ivory's applications seek to revisit those orders.

[29] The orders made by Fryberg J on 14 December 2006, therefore, have essentially been in abeyance for some 16 months because of Mr Ivory's current applications and he seeks a further adjournment. The principles set out in the decision of Wilson J in Ivory v Telstra Corporation Ltd & Anor are equally applicable to the current applications. In that decision her Honour held:

I respectfully agree with the observation of Mahoney JA in Ley vR De W Kennedy (Finance) Pty Ltd as cited in the later decision of Raybos Australia Pty Ltd & Anor. v Scitec that the right of a litigant to present his case --

must not be seen as giving ... an absolute right to conduct a case, or to conduct a case in the manner and for the time that such a person chooses, whatever that choice may be. That right must be balanced against the rights of other parties who are involved in the litigation, including the right ... not to be involved in pointless litigation and to have the litigation conducted properly and with reasonable promptitude; and it must be balanced against the right of the public generally not to have the court's time wasted.

...

What steps will be appropriate, in a particular case, to prevent injustice being done to parties who find themselves involved in litigation conducted in this way, must, of course, be determined in the light of the facts of that a case; but it should be clear that it is proper that steps be taken to that end.

[30] At the commencement of the hearing on 14 March 2008 I therefore had to determine whether Mr Ivory's applications should be adjourned. In coming to a determination I took the following matters into account:

•

I considered that Mr Ivory's current medical conditions were not such as to prevent him from filing documents, providing submissions, and instructing legal representatives if he so wished. Mr Ivory had in fact forwarded voluminous amounts of material to the Court. In addition, Mr Ivory had been given three months' notice of the hearing and, accordingly, had ample time to prepare.

•

Mr Ivory had not complied with the order of 5 November 2007. He had not provided the medical reports by the date required or in the terms required by the order. The two letters which were supplied were not reports and they did not provide sufficient detail in relation to Mr Ivory's underlying condition and prognosis. In particular, it had not been established whether Mr Ivory's condition was any different from the medical issues he raised in his previous litigation. It was not, therefore, established that Mr Ivory was not fit to pursue his litigation.

[31] I therefore determined that the matters should not be further adjourned given the time which had already expired and the fact that Mr Ivory had not complied with the orders of 5 November 2007 and provided reports about his current health. Mr Ivory had been given every opportunity to provide material and had forwarded material to the court. The matter, therefore, proceeded on 14 March 2008 in Mr Ivory's absence.

The objections to the unfiled material and the affidavits previously filed

[32] In coming to a determination in relation to the two applications currently before me, I consider it appropriate that orders should be made that evidence in each application be received as evidence in the other application.

[33] In response to the order of 5 November 2007, Mr Ivory filed no material but forwarded documents directly to the solicitors for Telstra and to me with a direction that the documents were directed to "... Her Honour ... while sitting ... within her private chambers." This material consisted of some 200 pages of documents sent on 21 February 2008. The major document, dated 21 February 2008, was entitled "Letter Rogatory" which contained a Notice that it was "... [s]trictly Private and Confidential. Not for Public Use or Public Filing or Disclosure." Enclosed with the letter were a number of documents which included documents which were described variously as an "... Affidavit of KC Ivory in support of his Letter Rogatory", "... Return of your Various Correspondence dated 6 February 2008 and 8 February 2008" as well as photocopies of "... one page of 9th October 2006 ... as filed with ASIC", "... the 25 October 2007 Notarial Certificate of Protest", the 26 October 2007 Notarial Certificate headed 'The Court of Faculties'. Also enclosed were a "Certificate of Mailing-COM01", copies of Statutory Declarations by J Nimmo and G Collinson, a copy of ABC TV 7.30 Report Transcripts of 9 October 2006, as well as a rejected document sent by Mallesons to Mr Ivory on 14 March 2008. Two medical certificates were included in a letter dated 7 March 2007.

[34] All of this material ("the forwarded material") was placed directly on the correspondence part of the Court file prior to the hearing without being filed or read.

[35] At the hearing, Counsel for Telstra objected to the formal filing of the forwarded material which had been sent by Mr Ivory. The basis of these objections was provided to Mr Ivory prior to the hearing. The essence of the submission is that substantial sections of the material forwarded by Mr Ivory are "irrelevant and scandalous" and should not be filed.