In the matter of Hayes v Pioneer Credit Acquisition Services Pty Ltd [2018] FCA 1113 (30 July 2018) a remarkable exchange between the Judge and the Respondent (see transcript below) may conceivably have left the Judge of the first instance being sympathetic to the position articulated by Ruth Ginsburg about appellate judges:
The primary judge was presumably faced with a busy bankruptcy list. The appellant was wasting the Court’s time with nonsensical recitations and his refusal to directly acknowledge that he was the respondent to the proceeding. His Honour’s frustration was palpable, and understandable. I am conscious of the reputation of appellate judges as “the ones who lurk in the hills while the battle rages; then, when the battle is over, they descend from the hills and shoot all the wounded”: see Ruth Bader Ginsburg, Remarks on Writing Separately (1990) 65 Washington L Rev 133 at 143. However, the “battle” is not supposed to be between the trial judge and a self-represented litigant. His Honour was not entitled to insist that the appellant describe himself by the title “respondent” as a condition of being permitted to appear. The exchanges did not justify the exclusion of the appellant from the courtroom. The appellant was denied the opportunity to call evidence and to make submissions. That was a denial of procedural fairness.
Transcript
HIS HONOUR: Thank you. Sir, you are?
MR B.J. HAYES: Yes, good morning. I am the man known as Brett John Hayes, a man as is referenced in the Bible, Genesis 2:7, here by invitation, and, as God is my witness, do swear on the Bible that I hold in my hands, that I, of being sound spirit, body and mind, am here to make right any valid – – –
HIS HONOUR: Sir – – –
MR HAYES: – – – and lawful claim – – –
HIS HONOUR: Please stop.
MR HAYES: – – – that any man or woman – – –
HIS HONOUR: Please stop.
MR HAYES: – – – makes – – –
HIS HONOUR: Are you the respondent?
MR HAYES: No, I’m the man, mate. I’m the man, basically, requiring the men named as plaintiffs to validate their – verify their claim.
HIS HONOUR: Are you the respondent?
MR HAYES: No.
HIS HONOUR: I see. Can you leave – – –
MR HAYES: No, I’m not – – –
HIS HONOUR: All right.
MR HAYES: – – – a legal entity at all.
HIS HONOUR: I see.
MR HAYES: I’m a man.
HIS HONOUR: All right.
MR HAYES: Yes.
HIS HONOUR: Well, if you’re not the respondent, can you leave the bar table.
Because – – –
MR HAYES: I will take the stand.
HIS HONOUR: No, I don’t want you to take the stand. If you’re not the respondent, you have no entitlement to be at the bar table, so you will have to leave.
MR HAYES: I do not understand that. I’m the man. Is there – is this matter not between a – a – five men, who have made a claim against the man, Brett John Hayes? And I am the man, Brett John Hayes.
HIS HONOUR: So are you the respondent to these proceedings?
MR HAYES: I’m the man requiring validation of the claim. I’m here to make right any valid claim.
HIS HONOUR: Sir, are you the respondent? That’s all I need to know.
MR HAYES: Is “the respondent” a word in the Bible?
HIS HONOUR: I don’t know whether it’s – “respondent” is the word in the Bible. I know that “respondent” is a word in the rules of this court. And are you the respondent?
MR HAYES: Is not the rules of the court the Bible?
HIS HONOUR: I see. Sir, if you’re not the respondent, then I’m going to ask you again to leave the bar table. If you don’t leave the bar table, then I’m going to get security to remove you. Are you the – – –
MR HAYES: Is – – –
HIS HONOUR: Are you the respondent?
MR HAYES: Is the word – – –
HIS HONOUR: Sir, please.
MR HAYES: Can I please ask a question.
HIS HONOUR: No. No.
MR HAYES: I don’t – – –
HIS HONOUR: No, you can’t. Stop. Are you the respondent?
MR HAYES: I don’t know.
HIS HONOUR: It’s a yes/no question.
MR HAYES: I don’t know.
HIS HONOUR: I see. All right. Leave the bar table. If I can’t be satisfied you’re the respondent, you have to leave the bar table.
MR HAYES: I have to know, what does respondent mean? Is there a legal – is there a legal – a – if you use the word “respondent” – – –
HIS HONOUR: Please leave the bar table.
MR HAYES: – – – is there a legal terminology that I have lost my standing as a man?
HIS HONOUR: Please leave the bar table. Take all your stuff. If you’re not the respondent, you’ve got no business having anything there, so take it all.
MR HAYES: I – again, am I – is – so is this matter between Pioneer Credit, or the men known as Pioneer Credit, and the respondent?
HIS HONOUR: I don’t understand your question, and I don’t intend to answer it. If you’re not the respondent to these proceedings, if you are not Brett John Hayes, or whatever the name – – –
MR HAYES: I am Brett John Hayes.
HIS HONOUR: You are?
MR HAYES: I am Brett John Hayes; that’s correct.
HIS HONOUR: So, the respondent to these proceedings.
MR HAYES: Am I, in responding to any claim – I will respond; I’m here responding. Am I – am I going to be titled as a – as a – as a – as a dead entity or a legal fiction or something? No, I’m not. I’m not going to do that. I’m just a simple man, here to make right – – –
HIS HONOUR: Sir.
MR HAYES: Simple.
HIS HONOUR: This is your last opportunity to tell me whether you’re the respondent, Brett John Hayes, in these proceedings, or not.
MR HAYES: I’m Brett John Hayes; that’s correct.
…
HIS HONOUR: … Right. So, Mr Hayes, you’re the respondent. Thank you, Mr Messina.
MR HAYES: I am not Mr Hayes, either.
HIS HONOUR: Who are you?
MR HAYES: I’m Brett John Hayes. My father – – –
HIS HONOUR: I see.
MR HAYES: – – – my mother, as the creator of I, created I. I believe – – –
HIS HONOUR: I see.
MR HAYES: This is what I believe.
HIS HONOUR: I’m not interested in what you believe, sir. Mr Messina.
MR MESSINA: Your Honour, may I read the following material.
…
HIS HONOUR: Now, sir, you’ve just told me you are the respondent.
MR HAYES: I’m not the respondent. I’m the man, Brett John Hayes.
HIS HONOUR: I see. Well, if we’re going to go through this again, you will have to leave, because I only deal with the respondent. Unless you’re a lawyer – you could be a lawyer – – –
MR HAYES: No, I’m not a lawyer.
HIS HONOUR: I see. All right. Well, if you’re either the respondent, or you’re a lawyer who represents the respondent; if you’re neither of those people, you have no business being at the bar table, and you have to leave – – –
MR HAYES: So there’s no claim against the man, Brett John Hayes – – –
HIS HONOUR: – – – and you have – no. You have to leave if you’re not the respondent.
MR HAYES: I am the man, Brett John Hayes.
HIS HONOUR: I see. Are you the respondent?
MR HAYES: Look, it’s – again – – –
HIS HONOUR: Are you the respondent?
MR HAYES: I am here to make right any valid – – –
HIS HONOUR: Are you the respondent, sir?
MR HAYES: – – – and lawful claim.
HIS HONOUR: That’s all I want to know.
MR HAYES: Look, I don’t understand your terminology.
HIS HONOUR: I see.
MR HAYES: As far as I’m concerned, “respondent” is not in the Bible.
HIS HONOUR: I see. I’m not interested in what’s in the Bible; I’m interested in what’s on the creditor’s petition that was served on you. Are you the respondent – – –
MR HAYES: So is that the – – –
HIS HONOUR: – – – to the creditor’s petition?
MR HAYES: Was the creditor’s petition – was the creditor’s – what you call the creditor’s petition – was that served on the respondent, or was that served on the man, Brett John Hayes?
HIS HONOUR: Are you the respondent named in the creditor’s petition?
MR HAYES: I am the man, Brett John Hayes.
HIS HONOUR: Are you the respondent?
MR HAYES: I am the man, Brett John Hayes.
HIS HONOUR: Call security. Have him removed. Adjourn the court. Let me know when he’s not in the courtroom any more.
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