Wednesday, 1 October 2014

Zomojo / Exablaze's appeal comment

I'd like to thank Zomojo or Exablaze for their legal analysis of my appeal at this link.

If you're perhaps thinking there may be something interesting about trading or tech in this post, please stop reading now. Insomniacs need only apply. It is probably only tangentially interesting to those who have been following the three year old Zomojo/Exablaze v Zeptonics saga.

Without getting too carried away, I must agree with Exablaze's general thrust that my chances of success are dim but perhaps not for the same reasons. I certainly believe and hope that my view of justice will be agreed to by the Appellate Court but my personal history suggests that my likely outcome at the FCA will be yet another defeat. Lay self represented litigants are at a considerable disadvantage and have very little track record of success. Even if legal aid was available, I can't imagine a pro-bono lawyer getting too worked up about a fight between two HFT types regardless of the injustice involved. Lawyers serve a good purpose but they have to eat and can not represent poor people like myself. I am left to do what I can with the support of family and friends.

Some statements in the Zomojo / Exablaze communique are dubious at best. Let me meander though my thinking as to why.

One option of remedy being put to the Appellate Court is a constitutional writ of Certiorari. If this was granted by the court the entire case, including the Zeptonics bits, could be tipped out. I hope this happens and believe that would be just, but, yes, the historical record of my legal defeats suggest this is unlikely. The court is not a justice system. It is a contract resolution system where $ assist greatly in providing supportive argument.

This writ of Certiorari is different to the US use of the term where is it seems to be an order from an appellate court requiring the case to be forwarded. In Australia such a prerogative, or constitutional, writ is a remedy, quite a heavy handed one, that may result in the decision being overturned and details struck from the record:
"Certiorari is an order setting aside a decision (technically, the record of the decision-maker is removed to the court and the court then quashes the decision and expunges it from the record). An order for certiorari would be sought where a decision has been made unlawfully and the decision should be set aside." [Source: The Law Handbook web site.] 
Zomojo argue in their communique that Zeptonics is not represented thus decisions that have affected Zeptonics cannot be altered. This is not true as such a writ could result in the case being wholly undone. Also it is important to note that virtually any party, even a party unrelated to the original case, may attempt to appeal a court's decision by seeking such a writ if meritorious. For example, if the London whale had of been found guilty in the FCA in Melbourne, Greenpeace may have been entitled to run an appeal based around such a writ as an unrelated and very confused party.

More technically, the standing of a person seeking such a writ should be that of an “aggrieved person” which, according to the Queensland decision of R v Knyvell; ex parte Weber ([1929] St.R.Qd. 16; and see De Haber v. Queen of Portugal [1851] 17 Q.B. 171) could be as wide as “any person” following the tradition that unlawful dealings of tribunals under the cloak of law should be allowed to be challenged by any subject. The history of this relatively loose requirement for standing culminated in the decision in Attorney-General of Gambia v N’Jie ([1961] A.C. 617.), where the interpretation of the term “person aggrieved” was effectively “any person.”

Maybe my legal thoughts are off base and I'm barking up the wrong tree. Perhaps, just maybe, there is some legal merit to this line of reasoning. The court will adjudicate in due course if I can cross the t's and dot the i's and make it that far.

Zomojo argued vigorously to Honourable Justice Middleton that the appeal not be allowed to continue. The process was allowed to continue. Their QC did not win that argument, at least yet. The Full Bench of the Federal Court of Australia will hear the leave to appeal and appeal on a single day in 2015, likely to be February or March.

If you're having trouble sleeping, you can read my draft notice of appeal and a further submission from myself as they are public documents registered with the court.

I believe Zomojo is being a little misleading in their communique. They didn't really need to be as I acknowledge that, regardless of the merit, a self represented litigant is unlikely to succeed. I fervently hope to be an exception to that general rule as the scores of people harmed by the injustice of this mess deserve better.

--Matt.