Roderick v Telstra Corportion Ltd A2/1999 [2000] HCATrans 230 (12 May 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A2 of 1999

B e t w e e n -

DAVID JAMES RODERICK

Applicant

and

TELSTRA CORPORATION LTD

Respondent

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 2000, AT 2.24 PM

Copyright in the High Court of Australia

MR D.J. RODERICK: If the Court pleases, I am the applicant. I appear and represent myself.

MR S. WALSH, QC: If the Court pleases, I appear for the respondent. (instructed by Norman Waterhouse)

GLEESON CJ: Yes, go ahead, Mr Roderick.

MR RODERICK: If it pleases your Honours, briefly, if I assume your Honours have read the summary of arguments of both parties and the response of the applicant, and in doing so, I have supplied a list of authorities and statutory materials - - -

KIRBY J: You seem to specialise in getting out of time.

MR RODERICK: I beg your pardon?

KIRBY J: You seem to specialise in being out of time. You have been out of time before and you are out of time in this application.

MR RODERICK: Well, I note your comment, your Honour, but there are reasons. But also, since this case proceeded, and it is now 10 years and 3 months ongoing, 12 months within employment, 9 years and 3 months on the 21st of this month, there have been a lot of matters that have been adjourned, suspended, and the court's jurisdiction in the administration of justice, there have been long delays in listing the matters, so I note your comment, I accept it, yes, but there are reasons. Now if I could just direct your Honours - - -

GLEESON CJ: Now, just before you go any further, you are applying for an extension of time from us.

MR RODERICK: Yes, your Honour.

GLEESON CJ: Is that right?

MR RODERICK: Correct, your Honour.

GLEESON CJ: Then what you should do is put all your arguments within the time allotted to you about why we should extend your time and also going to the merits of the application you want to make.

MR RODERICK: With respect, your Honour, that is what I was about to do. I was going to refer your Honours - or if your Honours would briefly refer to the list of authorities and statutory material that the applicant wishes to refer to, and if you have a bundle of documents there, it is the fourth one from the bottom as supplied, if it is still in that manner, and this is getting to the point of why I require, and should be granted, an extension of time, firstly, before we look at the special leave questions.

Now, the document is a four-pager. On the first page, it is SG No 3 of 1998. Do your Honours have that in front of you?

GLEESON CJ: Yes.

MR RODERICK: It is paragraphed in frames. It is a chronology.

GLEESON CJ: Yes?

MR RODERICK: Well, if your Honour would turn to page 5, the last page.

GLEESON CJ: Yes.

MR RODERICK: Your Honours will see - and I am only assuming this - have your Honours had a look at this document before I got to Court?

GLEESON CJ: Yes.

MR RODERICK: That is great. That will speedily get to this point. If your Honours have a look at SG3 of the Full Federal Court, their Honours Von Doussa, Whitlam and Carr on 20 July 1998, it is on the fifth page of that document in front of you.

Now, I had - and correct me if I am wrong - 28 days to apply to the High Court for an application as a result of the decision of the Full Court. I put proceedings in motion to do that, but, in the meantime, on 11 August 1998 I applied to the South Australian Industrial Relations Court for a wrongful termination of employment, and the reasons I did these other matters down there was mainly contributed to lack of legal representation, knowledge and the procedures to do so. But I will not deny that I did know there was a 28 day period and I did make attempts to the Registrar of the High Court here in Adelaide, and speaking to the Registrar of the High Court in Adelaide, it is in my summary of argument, which your Honours have noted and read, that because I stated that I have action pending in the South Australian Industrial Relations and the Australian Industrial Relations, and then matters were dealt with. One was discontinued because, once again, I was in the wrong arena and once again, because of my health and my lack of knowledge in pursuing this matter, that is some of the reasons why the period of time to apply to your High Court, your Honours, it was out of time.

KIRBY J: May I just ask you, is the position this? The decision of the Full Court of the Federal Court was given on 29 July and, therefore, you would have had to bring your application by about 29 August and - - -

MR RODERICK: That would be correct.

KIRBY J: You were admitted to hospital on 14 October, all of 1998, and do you tell us that in the period from the time the Full Court gave its decision until October 1998 you were suffering from the problems that led to the coronary bypass surgery in October?

MR RODERICK: Correct, your Honour, not only the bypass - - -

KIRBY J: And that that is what distracted you from bringing your application in time. Is that what you tell us?

MR RODERICK: Yes, your Honour. But, also, this is combined with it. This is a very critical part of it. I was pursuing the action in other areas and I was on my own belief - - -

KIRBY J: But that does not excuse you from bringing your action in time in this Court. All of this is to do with conduct that occurred as long ago as 1990.

MR RODERICK: Well, your Honour, in regards to that, with respect, from 29/7 of the Full Court's decision to the 9/2/99 to the High Court's application, it is a period of approximately six months. Now, in that period of six months I had a lot of heavy medical problems to the point where it - well, I have a serious medical problem, a coronary situation, and it prevented me really from acting in any capacity, but because I have no one else to do this, I have had to continue and do the best I can. But having said that, your Honour, it is no excuse for not being there in the time period with respect to an unrepresented litigant in cases before the Court.

In Ulowski v Miller principles, your Honour, there are discretions and reasons where their Honours' discretion can consider the reasons in the length of delay; reasons for the delay; the prejudice to either parties; and if there is a case to pursue, and I wish that to be noted by your Honours in seeking an extension of time, briefly. In addition to that, while all this was going on, I have continuously, since 1991, applied to the Legal Aid Commission for legal aid assistance, even to the point to the Attorney-General's Department in Canberra, to Mr Geoff Wheeler, and that was for the first Full Court appeal of SG10 in 1992.

GLEESON CJ: Mr Roderick, what do you seek to appeal against?

MR RODERICK: My reason for being here - - -

GLEESON CJ: Excuse me, Mr Roderick, could you just listen to me for a moment. You are seeking to appeal against a decision of the Full Court of the Federal Court - - -

MR RODERICK: Correct.

GLEESON CJ: Dismissing an appeal against a decision of a single judge of the Federal Court who refused to give you an extension of time to do something.

MR RODERICK: That is so, your Honour.

GLEESON CJ: And you need an extension of time for us to commence your appeal against the Full Court of the Federal Court. Correct?

MR RODERICK: That is correct, but - - -

GLEESON CJ: Now, would you mind telling us where in the decision of the Full Court of the Federal Court, from which you want to appeal, we find the error that you say they made?

MR RODERICK: All right, your Honour, I will deal with that now. If your Honours permit me for a brief moment to just refer straight to it. If I could just take your Honours to the application book, page 60, first off. It is page 60 of the application book, but page 4 of the judgment of their Honours.

GLEESON CJ: Yes, we have that.

MR RODERICK: Now, both before the primary judge and before the Full Court, the applicant submitted to the courts his medical condition, his applications pursuing legal aid and legal assistance, and his reasons for being out of time and, more to the point, his reasons to review the orders of SG10 of 1992, to conduct a further review and apply the rules of natural justice. The rules of natural justice were breached in that further hearing. Now, at point 10 of page 60, his Honour states:

He will only suffer injustice if, upon a review, a court would set aside the decision of the second Board of Review, and......came to a different decision.

Well, his Honour has erred there for a starter because the only decision that another board of review would come to, because I would not be doing it myself any more - the union have finally come to grips and decided to take these people on, so to speak, and the different decision would be that I was right all along and the respondents were wrong. That is one of the reasons -that is the specific reason, but for the extension of time I have heavy medical reasons, if we just turn over the page to page 64, your Honours, of the application book.

That was another operation after my major triple bypass and it involved vascular surgery and 57 stitches for breathing, stress, anxiety and all the other problems - and angina attacks, and that continued for quite - it just never went away. It is still here today. I am on angina tablets and a breather which I have to take at any time if I get attacks of angina. Now, if I could take your Honours further - in the list - again I have to refer to the list of authorities and other material, your Honours. Supplied there was a further medical opinion dated 29 February 2000 by my specialist, a vascular surgeon. Have your Honours seen that?

GLEESON CJ: What page?

MR RODERICK: Well, it is actually - that, your Honour, is in the list of authorities and statutory material the applicant wished to apply and it was not - - -

GLEESON CJ: This is "Further Medical Opinion by Specialist"?

MR RODERICK: I beg your pardon?

GLEESON CJ: Is it the document called "Further Medical Opinion by Specialist"?

MR RODERICK: No. I apologise to your Honour. I may be confusing. This page is not in the application book. Have I confused your Honours? It is in the supplementary documents - - -

GLEESON CJ: No. We have got the supplementary bundle and there is something - - -

MR RODERICK: Yes. Well, you have a one-pager there dated 29 February 2000, Dr Limaye, specialist, heart specialist. I supplied the documents you have in front of your Honours, the authorities and Telecom Act and likewise and condition in stapled form but not binded or page numbered because of - - -

GLEESON CJ: That is the point, not page numbered, so it is going to take us a little time to find it.

MR RODERICK: Well, I realise that, your Honour. It is all very well for the Court to say this, your Honour, but I have done the best I can on the run and I only was notified by the Registrar in writing two days prior to assembling these documents. So it is all very well for your Honours to say they are not page numbered. I can show the document to you or that may not be - - -

GLEESON CJ: Go ahead.

MR RODERICK: The document - while your Honours are looking at it, it says, "To Whom It May Concern":

Dear Sir/Madam,

Mr Roderick has been under - - -

GLEESON CJ: Excuse me. Is this the document signed by S. B. Limaye, cardiologist?

MR RODERICK: Correct, your Honour.

GLEESON CJ: Yes.

MR RODERICK: So if your Honours wish to read that, that is another reason why I consider the Court should consider an extension of time out of time because of my continuing medical problem.

GLEESON CJ: Yes.

MR RODERICK: Now, in regards to the medical problem, it is there. It is not going to go away. This case does not make it any better. I have had to pursue this case, repeating, for nine years and three months against all adversaries and I have continued to pursue within employment an allegation of conduct that has never ever existed and still has not been proven today and the reasons for my dismissal at the Full Court ordered review of SG10 of 1992, the allegations there of a conduct have been refuted over nine days when 29 informants came at a further internal review.

The evidence was taped. It was not transcribed. And the rules of natural justice - we all know what they are. I do not have to say what they are, but in applying them rules, with the deepest of respect, could I put to your Honours if you were the applicant and you were put up with the situation where a Full Court of the Federal Court ordered to do a further internal review - it went for nine days and 29 informants came in, in excess of that, gave evidence and the evidence of conduct was refuted on the tapes, would not your Honours want to know why the condition of dismissal still stood?

Also, in the further review, the person responsible for my dismissal - and there was a conspiracy here, it has been confirmed and there are people to confirm this, Mr J. McLachlan, he said, at the fifth day of the review, that if the conduct is not relevant, then there are personal matters why we shafted him. To this day, I do not know what they are, neither do the respondents, and I am entitled to know, your Honours.

Now, I will get back to the basis of the main part of the argument. I have explained to you my application for an extension of time; I can do no more than tell you where I have been, the chronology shows you where I have been. I would ask your Honours to determine or consider the respondent's conduct. There has never been a valid confirmation of conduct to terminate, never, up until today's hearing, there still has not been.

Incorrect procedures were put into place in every area of the termination of the applicant, work incidents, unsafe work acts, at the further internal review, and that is the incident where the applicant was sent back to the city, loss of TA and country work, never to return to normal duties, and I was dismissed from that area. That was refuted 100 per cent at the further internal review. They say they have established natural justice. They have denied natural justice in a conspiracy to deny evidence that proves the presumption of innocence. That is an entitlement of all litigants.

Now, I will go to the ADJR Act. Section 11(1)(c) of the Act does enable the court's discretion on this to extend time. Now, their Honours, I will say this with the deepest of respect of the primary judge of SG3 and SG10 of this appeal to the High Court, they had a discretion to allow me to establish my presumption of innocence. They chose not to give it to me, with respect. It would not have hurt them to have allowed me to take this back to the Federal Court and through the union prove, beyond reasonable doubt, that there was a conduct of dismissal. Until today, there is no conduct of dismissal; it has never been established.

Internal reviews, the first review the applicant went to on 21 February, when he was dismissed on 21 February 1991, and that review was on 16/17 February 1991; that review was a denial of natural justice. Now they no longer have a promotions appeal board or a review process within the system because of this very reason, because of the cost.

I close my statement, your Honours, in saying that the administration of justice denies unrepresented litigants the same equality in the court system. Legal aid should be available for cases like this, that does have the merits to succeed, with the honourable senior Queens Counsel that Telstra have there representing them today, who I respect most deeply, and I - - -

GLEESON CJ: Thank you, Mr Roderick.

MR RODERICK: Thank you.

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

We see no error in the reasons for judgment of the Full Court of the Federal Court and for that reason to grant an extension of time, as sought, would be futile. Accordingly, the application is dismissed. Can you resist an order for costs, Mr Roderick?

MR RODERICK: Can I resist an order for costs, no, your Honour, but I ask the costs, because of the system of justice, and the Court, with respect, has denied the appeal, I say that the justice system should look at people that are unrepresented. I am still entitled to the presumption of innocence. Mr Colston walked. He walked with 27 charges of fraud investigated by the highest order of the police force in the Commonwealth and that man walked.

GLEESON CJ: Thank you, Mr Roderick. The applicant must pay the respondent's cost of the application.

KIRBY J: Mr Walsh, you were here earlier on the day for another matter and, in the normal circumstances, one would have expected this matter - at least I would have expected this matter to have proceeded with counsel in Adelaide; that is the whole point of having video links, and one might have expected, in the case of an unrepresented litigant, that Telstra would have been represented by junior counsel in this matter. I speak only for myself, but I would assume that the costs that are burdened on Mr Roderick would take those considerations into account.

MR WALSH: They will, your Honour; indeed, there will be no charge to Telstra with respect to the fact that I am here, and then there will be a question for them to decide, of course, as to the question of junior counsel, but that will be conveyed to the client.

GLEESON CJ: Thank you, Mr Walsh.

We will adjourn for a short time while arrangements are made for the next matter.

AT 2.47 PM THE MATTER WAS CONCLUDED