Calin v Apoyan S90/1999 [2000] HCATrans 196 (18 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S90 of 1999

B e t w e e n -

CRISTINA CALIN

Applicant

and

ANTHONY ANTO APOYAN

Respondent

Office of the Registry

Sydney No S91 of 1999

B e t w e e n -

FARHAD PELARK

Applicant

and

ANTHONY ANTO APOYAN

Respondent

Applications for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 APRIL 2000, AT 2.40 PM

Copyright in the High Court of Australia

___________________

GLEESON CJ: You are Ms Calin?

MS C. CALIN: Yes, that is right.

GLEESON CJ: And you are representing both yourself and Mr Pelark?

MS CALIN: I am representing myself only. Mr Pelark is representing himself either by interpreter who, I believe, they assigned.

GLEESON CJ: Officer, would you call Mr Farhad Pelark, please.

MR R.C. TONNER: I appear for the respondent in both cases, your Honours. (instructed by Moray & Agnew)

GLEESON CJ: Mr Pelark?

MR F. PELARK: Yes, your Honour.

GLEESON CJ: Take a seat, thank you. You want an interpreter to speak for you?

MR PELARK: That is right.

GLEESON CJ: Okay. Yes, Ms Calin, go ahead.

MS CALIN: Your Honours, before I begin, in my humble submission, I wish to extend my most profound and sincere appreciation and thanking today and the entire Court for your indulgence and tolerance for permitting me to bring to light the truth

which had been concealed and pray that you should not find me impertinent or insolent in my humble addressing today.

I present myself before you today representing myself seeking and anticipating to find the justice which had been grasped from me from the beginning. I must say, due to the lack of interest and without the pregnancy but due to the incompetence of my previous appointed solicitor, by not displaying the entire veracity of my situation. I shall give my statement as condensed as possible yet not neglecting to enlighten the principal points which would enable you to proceed and ponder upon the truth of this entire catastrophe which I miraculously survived.

Prior to my commencement, I wish to ask the Court indulgence and announce that post this accident, I am incapable to hold a conversation longer than approximately 10 minutes. Thereafter, I must rest a couple of minutes, as to standing or sitting for a prolonged time I am restricted too, thus I ask you to please bear with me.

In my humble submission, I wish to draw to the fact that entire argument was based upon the colour and the driver of the vehicle in question which caused the collision. I shall not invite your Honours to listen to the entire transcript for you already have it before thee yet I shall limit myself to some of the facts. Primarily, I recall solely that I was in the car whilst Mr Pelark driving slowly followed by an abrupt crash. I was dazed, barely conscious, covered in blood in a violent effort to subsist trying to breathe. So, I was forced with my knees in my chin, covered by glass on my face and body. That is what I vaguely recollect. .......voices of people around the outside of the car, of my car, my vehicle.

People were attempting to liberate me from the glass of the inside of the car yet without success until the arrival of the ambulance. Subsequent to this, I have abandoned all the privilege of normal life such as a housewife and that of a social life. Due to this collision I must endure and tolerate each day with agonising back pain, leg pain and spasm in my legs, day and night, unabling me to sleep all night. I can only sleep two to two and a half hours per night, but I awaken during these hours due to the involitile spasms and terrible pain in the legs and back.

When I do fall into slumber, I....fatigued, I have nightmares and blood and windscreen which embrace me in the collision I see at all times. I have become frightened of cars and panic if even drive myself. I awake screaming and agitated and it is always in my mind that same the day of the collision. I cannot perform any duties as a normal wife, domestic and sentimental, and my husband always complains. I cannot acquire a job or even study due to the unbearable pain I tolerate. I lost control of my bodily functions and my memory is very poor, the reason for which I am reading from these papers. I am very easily irritated and very depressed.

Pragmatically, considering my past and present mental and physical condition post this accident, according to my.....argument and that of the medical experts, my condition is almost beyond remedy.

Your Honours, with respect, it is of no import to me personally as to the colour or make of the other car nor is it imperative in my case - I repeat with respect, "in my case" - the evidence as given by the other witnesses, the police or the driver of my car, the sole issue is that I was previously injured and subsequently suffer with no amenity but instead my condition has aggravated.

Your Honours, respectfully, I must point to the fact that the witnesses are pressing upon the colours of the cars. That colour it was or the other colour, the colours were confused, et cetera, due to this - well, it was based upon this argument - the argument was based upon the colours of the car mostly, nevertheless, I leave it to your Honours' intellect and perception to conclude whether or not the colour or make of the other cars would be equivalent or as imperative as the health and the future of a human being.

With great respect, your Honours, and honourable Court, I cannot alter what other persons stated, only they can if they see fit.

McHUGH J: Ms Calin, you were a passenger in the car.

MS CALIN: Indeed.

McHUGH J: Once Ms Little and Ms Giamboi came along and said that the driver was Mr Campagnoni, why was he not sued?

MS CALIN: Forgive me, the driver was the driver of the other vehicle you are referring to?

McHUGH J: Well, the two witnesses who were called for the defendant insurance company identified the negligent car as a dark green car with a number plate TQV-918. Now, that car belonged to Mr Compagnoni, did it not?

MS CALIN: Well, I believe so. I could not argue that.

McHUGH J: Well, you were a passenger and it was either the white car - - -

MS CALIN: I was a passenger. I do not recall anything as to that.

McHUGH J: No, I am putting to you it was either the white car or the green car that caused your injuries. So, you should have recovered from somebody.

MS CALIN: That is right.

McHUGH J: And I do not know why you have not sued Mr Compagnoni or it may be that you should be suing your solicitor for negligence.

MS CALIN: With respect, your Honours, if I may: Mr Compagnoni, he stated in court that it was not him who caused the collision.

McHUGH J: I know he did.

MS CALIN: That he only witnessed it.

McHUGH J: I know he did but these two eye-witnesses said it was him.

MS CALIN: Yes.

McHUGH J: And you were a passenger in a car and you were injured by somebody's negligence.

MS CALIN: That is what I solely know.

McHUGH J: I know. Well, you should be able to recover and I do not know whether it is too late yet for you to sue Mr Compagnoni or to sue your solicitor for not joining him as a party once it became apparent that these two eye-witnesses said it was not Apoyan but Compagnoni. So, it does not seem to me, at the moment, that you are without a remedy - you may be - but there are other causes of action open to you. But what you have to understand, Ms Calin, is that the trial judge saw the witnesses and he believed the two independent witnesses and your case failed. There is nothing we can do about it in this Court. We do not see the witnesses, we do not try the case.

MS CALIN: Yes. Nevertheless, your Honours, please do not think of me as impertinent, I do wish to again mention that I do not know who caused the collision. Some people they say it was a white car, as the driver, Mr Pelark; other people they say it was darker car. I have not seen the car myself. The sole thing I know is that I was involved in this collision and I have become in this predicament which - if I may continue.

Only they can alter, if they can see fit and truthful. I can solely speak regarding myself and what I mainly know and of the fact that I have been disadvantaged from the truth as it has been accomplished and completely abolished. More so, the fact that the car was insured and the third party was completely obliterated. I have developed these facts to be now as much as my memory could aid me yet I speak in truth and utterance of my mouth is veracity and fear of God. This post traumatic experience has left me incapable of anything and everything and demolished any perspective of the future. Thus I appeal to thee today as no one previously to account of the above mentioned has, if there is justice still practised in this world thou art the most supreme, apart from God, who plays down ....I therefore profoundly and meekly beseech of thee to enlighten this gloom with true justice regarding my case as it does come fresh from the beginning, by whom I do not know, but it was. I requested propound respect and.....to proclaim a favourable decision in view of my condition due to this injury. That is my humble submission.

GLEESON CJ: Thank you.

MS CALIN: The rest I cannot recollect. I do not know. I merely know that I was involved in this accident and I seek to be compensated for my injuries.

GLEESON CJ: Thank you very much. Yes, Mr Pelark. You can come down and your interpreter can speak for you. Go ahead. Yes, Mr Pelark, what do you want to say to us?

MR SAYAR S. DEHSABZI - interpreter.

MR PELARK (through interpreter): Your Honour, I was involved in a car accident in 1995 and I would not know what to talk about.

GLEESON CJ: Very well.

MR PELARK (through interpreter): Your Honours, the situation was such that I was driving in the middle road heading towards Parramatta and the car which is under question was positioned on the right side of my vehicle and without applying the indicator, suddenly this car attempted to make a left turn to enter into my lane. I was very close to that car and in order to prevent an accident which would have been very serious, and considering that the left lane was vacant, so I entered to that left lane.

GLEESON CJ: Mr Pelark, we are not here for the purpose of having another trial of your action, we are interested in any argument you want to make as to why you say the decision of the Court of Appeal was wrong.

MR PELARK (through interpreter): Well, in the other court, your Honours, stress was made about the colour of the vehicle which caused the accident basically and so far I remember and I have no doubt whatsoever the colour of the vehicle was a white colour and that caused accident in the first place.

GLEESON CJ: Yes. Is there anything you want to add?

MR PELARK (through interpreter): I have got photos of this accident and I would like your Honours to see these photos.

GLEESON CJ: Yes, show us the photographs.

MR PELARK (through interpreter): Also, I submit a diagram of the event.

GLEESON CJ: Thank you. Yes, we have seen those.

MR PELARK (through interpreter): One of the reasons that my case has not been successful in the past court was due to the fact that I could not communicate well and I was not provided with the service of an interpreter, your Honours.

GLEESON CJ: Yes. Anything else you want to add?

MR PELARK (through interpreter): I have not got anything further.

GLEESON CJ: Thank you. We do not need to hear you, Mr Tonner.

In this matter, we have read the reasons of the trial judge and the members of the Court of Appeal and the written arguments that were lodged by the previous solicitor for the applicants and we have given consideration to the oral arguments that the applicants have put to us today. The Court is of the view that there are not sufficient reasons to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave. The application is refused. The applicants must pay the respondent's costs of the application.

We will adjourn to reconstitute.

AT 2.58 PM THE MATTER WAS CONCLUDED