Marinakis v General Motors Holden A19/1999 [2000] HCATrans 465 (10 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A19 of 1999

B e t w e e n -

ATHANASIOS MARINAKIS

Applicant

and

GENERAL MOTORS HOLDEN

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR A. MARINAKIS appeared in person.

MR B.F. BEAZLEY: If the Court pleases, I appear for the respondent. (instructed by Lawson Downs)

NICHOLAS CAPPONI, sworn as interpreter:

GUMMOW J: Now, will you tell Mr Marinakis that he has no more than up to 20 minutes to present his case orally; that we have already read his written materials, but there are 20 minutes for oral submissions.

MR MARINAKIS (through interpreter): Can I speak now?

GUMMOW J: Yes.

MR MARINAKIS (through interpreter): Your Honours, my profession is actually a cheese producer and my certificate for that is here. I have a licence to operate commercial vehicles. I was working with my father in the village in a very small business. When I got married I left my father's business and I was working for dairy producers who actually worked for certain agricultural banks.

GUMMOW J: Now, how many years ago was this?

MR MARINAKIS (through interpreter): This was before I came to Australia.

GUMMOW J: Now, the accident that this case is about happened many years ago, more than 30 years.

KIRBY J: May, 1965.

MR MARINAKIS (through interpreter): Yes.

GUMMOW J: Now, the first question that arises is that an extension of time would be necessary to bring the matter in this Court after such a long period.

MR MARINAKIS (through interpreter): Yes, that is why I came here today so I can be heard.

GUMMOW J: And there has to be an explanation of the reasons for the delay.

MR MARINAKIS (through interpreter): I do not know that. You, your Honour, would know that.

GUMMOW J: Well, what is the explanation for the delay?

MR MARINAKIS (through interpreter): When the court took place it was giving me $845 and this because the doctors had said that I will be well within 6 months. But I have not got better at all. It has been 30 years now that I have been sick and I have been without work.

KIRBY J: Well, we know that. We have read all the papers. The question is why should we exceptionally open the case that is 30 years old? Just imagine what the law would be like if we did that in every case.

MR MARINAKIS (through interpreter): I do not know. I can explain to you. I can speak to you. I do not know these things. I have reports from doctors which say I will be unable to work for the rest of my life. My back has been injured and all my genital area has been injured. The main nerve in my lower back has been injured, the one that comes from the top to the bottom and there is a lump on my spine as big as a walnut, and I have pain. There are many abnormalities on my body, from the top down to my feet. The doctors give medication for the pain and cream which I have to put on my penis, and it is written on here that it is for that reason, for my penis.

From the day I was injured up to today has been 35 years now and I have been taking this medication. The doctors spoke in court and they said it was all in my mind, but it is not in my mind which a doctor said in court and that was sheer injustice. The results that the doctors gave, they were all wrong. There has been injustice here and I am asking from the Court to give me some justice, and for the pain that my family has gone through, my children and my wife.

KIRBY J: But why 30 years? Why 30 years? Why has he waited 30 years to come to this Court?

MR MARINAKIS (through interpreter): I will speak to you about that. I want to finish here now. My wife died on 19 May this year and there was a lot of injustice in her life and in our sex life. There had been a lot of injustice ever since I had been injured as far as the sex is concerned and, of course, there was injustice on my behalf because I was ill.

KIRBY J: You were represented in the proceedings by Mr Johnston, were you not?

MR MARINAKIS (through interpreter): Yes.

KIRBY J: And he advised you at the time of the settlement of your case?

MR MARINAKIS (through interpreter): He was doing whatever he wanted to do. He wanted to do whatever he wanted to do.

GUMMOW J: There was an appeal, was there not, to the Full Court of South Australia?

MR MARINAKIS (through interpreter): Yes, but that was rejected and the reason for that was that I had no excuses and I had no evidence, but I did have evidence and I have the evidence here. From those years up to now I have the evidence that I have been ill. And this injustice had thrown me into a turmoil. I have been searching for justice ever since then. All these years I have been searching to find justice, to run, for 30 years, to many lawyers: to the Queen, to the governors. I have a paper from the Queen here and papers here. I have been to the ombudsman, to government officers, to Law Society, Parliament House, Legal Aid, and many places which I do not remember. For 30 years now, I have not stopped.

I have many papers at home and you can see them. All they show is that I have spent a lot of money on lawyers. Johnston, Elliott, appeared in court on 19 to 22 September 1969. It was in the High Court of Australia, and he had told me that I had lost the case. Mr Arthur Drikas had come to Court on my behalf in 1982 but I do not remember the exact date, and this was in the Supreme Court and he told me that I did not have the evidence and Mr Drikas gave me in writing and this writing said for me not to go to court. I have his letter at home. He told me verbally that if I had gone to court there will be consequences. I have many, many testimonies which say that I have been out of work for many years of part of my life and I have many papers from lawyers but the lawyers did not support me. They will only take money from me and they would push me away.

KIRBY J: Would you explain to Mr Marinakis that we cannot receive new evidence; that it is not possible for this Court to receive the fresh evidence. If he has any remedy it has to be in courts below this Court and he has to go to them first. He cannot just come straight to us.

MR MARINAKIS (through interpreter): The High Court of Australia has to give the order that I have to go to that court.

GUMMOW J: Well, we are the judges of that.

MR MARINAKIS (through interpreter): You can see all the places that I have been.

THE INTERPRETER: Your Honour, he is asking me to read the places.

KIRBY J: We would accept that he has tried to go to everybody who can help.

MR MARINAKIS (through interpreter): These are all the places that I have been. You can hear this. And these are the places I have been but they have not helped me.

THE INTERPRETER: Your Honour, he is asking me to read it to you.

GUMMOW J: Has he been to this Court before?

MR MARINAKIS (through interpreter): I came to a court with Mr Johnston but the court did not say anything to me at all. They did not speak to me at all and they did not allow me to speak or anything like that.

KIRBY J: That was probably the Supreme Court back in 1969?

MR MARINAKIS (through interpreter): 1969, yes, and they did not hear anything. I was ill and they did not want to hear me.

GUMMOW J: Well, you were represented by counsel.

MR MARINAKIS (through interpreter): My solicitor was not on the right track. He was always off the track. I had papers from the hospitals which said that I was ill. You can see it says for the rest of my life I will be ill. From this time, from 21 September 1970 and 21 March 1974, there are testimonies which say that I will be unable to work for the rest of my life.

KIRBY J: Now, Mr Marinakis, we know this is very upsetting for you but we cannot allow you to bring your appeal to this Court unless you give an explanation of why you have waited 30 years to appeal from the Full Court of the Supreme Court. It is the longest period of time I can ever remember in my time on this Court. Now, you do not help your case unless you can give an explanation.

MR MARINAKIS (through interpreter): The explanation is that I would go to the lawyers but they would not lead the way. They would not come. There was - - -

THE INTERPRETER: Your Honour, he is asking me to read to you. Would you like - there are all these lawyers and agents.

(Through interpreter): I have been to so many lawyers but they did not want to lead the way for me. There was - - -

THE INTERPRETER: He is asking me to read it, your Honour. Would you like me to - - -

GUMMOW J: Yes, very well, but all this is taking into the 20 minutes of time.

THE INTERPRETER: There was correspondence, your Honour, from Milligan and Hardy; from A. Drikas & Co; Johnston & Johnston, Mr G. Carabelas, Mr C. Goodall, Messrs Herriman, McEvoy and Gilchrist, correspondence from Messrs Tindall Gask & Co, correspondence from Riley Ahearn & Kerin; from L.J. Elliott, QC, from Messrs Peacock Wardle & Co; of R.R. Millhouse; there were various handwritten notes and copies of solicitors' business cards; there was correspondence from the Legal Service Commission; from the Greek Welfare Centre; from the Australian Legal Aid Office; the Law Society; from the Commonwealth Social Services and various medical reports; correspondence from the South Australian Council for Civil Liberties; there was a letter from the Humanist Society of South Australia; there was a letter from the United Nations Associations of South Australia; a letter from the Good Neighbour Council of South Australia, correspondence from the Ethnic Affairs Departments; from the Royal Consulate of Greece; correspondence from the South Australia Ombudsman; the Premier's Department; Government House, Adelaide; and Government House, Canberra; there was correspondence from various politicians, both State and federal; copies of various court proceedings; a letter from Mr Palios Meegan & Co; Nicholas Yarnhos and E.F. Nelson & Co. Your Honours, they were the list of the people that Mr Marinakis - - -

KIRBY J: It may be different in Greece but writing letters is not relevant to agitating in a court, bringing the case to court.

MR MARINAKIS (through interpreter): I am not talking about Greece, I am talking about Australia. I have been to my local MP as well.

GUMMOW J: But politicians do not control what happens in the courts. If he has a complaint about the court, he will appeal in the court.

MR MARINAKIS (through interpreter): All I know that I am ill and injustice has occurred here. Injustice occurred to myself and to my family. My whole family has been injured and wounded because of this system, and my wife was the one that was paying for all the court proceedings because she could see the injustice that had occurred to her and to myself. I cannot say anything else.

GUMMOW J: Thank you, Mr Capponi. Yes, Mr Beazley.

MR BEAZLEY: Your Honours, the first hurdle for the applicant is whether the Court ought to dispense with the requirement of rule 3(2). In my respectful submission, nothing has been put to you either in documentary form or otherwise to give any explanation at all for the delay of 30 years. We know that - - -

KIRBY J: Well, I suppose there is this much, that he has gone to every possible track that an unadvised person might think was appropriate.

MR BEAZLEY: That is so. Your Honour, accepting that as being the case then one would then look to page 39 of the application book which refers to at least one of those occasions going to see a firm of solicitors, at line 30, dated October1989, which recites what, really, Mr Marinakis has put to you. Nothing has occurred since 1989.

KIRBY J: Is it true, as is stated on page 42, that a doctor, at the time of his original injuries, said that the interesting thing is that this is predominantly Greeks who develop this typical response to such injuries and invariably there is compensation at stake. Was that actually said by a medical practitioner?

MR BEAZLEY: We have not seen the transcript but it is certainly in the magistrate's initial reasons. He made reference to that when dealing with the question of statistics, and I will try and find the reference to it. It is a rather unfortunate thing to have said but it was referred to. I think it was - - -

KIRBY J: Well, you accept that it was said. Do not worry about who - - -

MR BEAZLEY: It was said. The magistrate referred to it. At the end of the day that particular medical practitioner, Dr Maguire, I think, assessed the likely recovery period as being one month or six weeks, perhaps consistent with that. At the end of the day, your Honour, the magistrate, and concurrently in the Full Court, the courts determined that the periods specified by Dr Earl, the psychiatrist, that six months was appropriate.

GUMMOW J: The appeal is sought to be brought against the decision at first instance which was the Local Court, was it? It is a State law matter. We do not take appeals directly from State inferior courts exercising State jurisdiction. The appeal would have to be from the Full Court decision of 1969, I suppose.

MR BEAZLEY: That is so, and that is where the difficulty lies so far as Mr Marinakis is concerned because it is clear that when the matter was considered by the Full Court, particularly Dr Bray, reading pages 23 and 24, that what the Full Court did was independently assess that period themselves and there was a concurrent finding. In fact, his Honour the Chief Justice considered as to whether in fact the six months was reasonable or otherwise. At page 23, line 290, and at the end of the day concluded that in fact the period of six months was an appropriate period - pages 23 and 24 - so there has been a concurrent finding of fact in that respect.

KIRBY J: Is there a facility in this State as there is or used to be in New South Wales whereby, if subsequent events proved that however well meaning and accurate in information at the time a decision has miscarried in a matter such as this, is there a way under the compensation law of this State that the matter can be reopened if you have fresh evidence?

MR BEAZLEY: I do not think there is, your Honour. I think it relies entirely upon the question of fresh evidence as such.

KIRBY J: But if there is fresh evidence, is it possible to go to the Magistrates Court or the Full Court and seek to reopen the matter there?

MR BEAZLEY: You would need to go the Full Court to put forward - in this case, I suspect, to go to the Full Court to raise the question of fresh evidence. That also raises a further problem for Mr Marinakis. Over the years, of course, the Act has changed. The 1932 legislation which was the subject of this matter, which included that section 26, has been repealed. A 1971 Act came in which preserved, as it were, actions before that time; took the jurisdiction away from the Local Court as an arbitrator; established a brand new court, the Industrial Court, and then in 1988 that legislation was also repealed with a brand new legislation, the Workers Rehabilitation and Compensation Act coming into play, and there is no equivalent section in that legislation. In fact, there was no equivalent section in the 1971 legislation.

I can understand the Court might feel some sympathy for Mr Marinakis but if one looks at the matter simply from the point of view of the prospects of an appeal, this was a case where the Full Court considered the matter afresh. If there were some - - -

GUMMOW J: Yes, it is a reported decision.

MR BEAZLEY: It is; it is, and determined independently that a period of six months, the highest period at that time, was a reasonable period. Now, courts do that everyday. Every court has to sit down and go through the difficulty of assessing future loss of earning capacity and has to make that decision.

I can imagine that there would be thousands of plaintiffs and thousands of defendants who say courts have got it wrong and one week after a case is over someone seems to improve, so far as the defendant is concerned. So far as the plaintiff is concerned, he never got better. There is nothing special about this case at all, with respect. In fact, if anything, it is a very common case. The issue which was raised was as to whether, in fact, Mr Marinakis was suffering from compensation neurosis. As I read the transcript, it appears as though it was never really in issue, that it really was compensation neurosis. Now, he complains about that and says, "Look, I wasn't suffering from compensation neurosis at all, I was suffering from a physical injury."

KIRBY J: Sometimes compensation neurosis can be just a consequence of a physical condition. The mind is part of the body.

MR BEAZLEY: That is certainly so, your Honour, and that is what the magistrate - - -

KIRBY J: Or so they say.

MR BEAZLEY: In fact, that is what the magistrate found. In fact, if anything, the magistrate, I think it is fair to say, showed a great deal of sympathy for the applicant. The magistrate found, in fact, that there was, despite the argument that he was not genuine, that he was genuine, and had the task, as all the courts have, to assess what was a reasonable period for him to improve; made the finding; there was an appeal, properly argued, and Mr Marinakis was well and truly represented in the matter and the Full Court independently determined that.

GUMMOW J: Yes, thank you, Mr Beazley. Mr Capponi, Mr Marinakis has the right to a short reply to anything that has been put by Mr Beazley.

MR MARINAKIS (through interpreter): To answer on what, your Honour? I have got nothing to answer. Whatever I wanted to say I have already said to you.

GUMMOW J: Thank you. This application for special leave to appeal is some 30 years out of time. The applicant wishes to appeal from an order for redemption of workers compensation payments. The litigation is already the subject of a decision of the Full Court of the Supreme Court of South Australia in Marinakis v General Motors Holdens Pty Ltd (1969) SASR 99. Given the passage of 30 years, this is not a case in which time should be extended. Accordingly, the extension of time is refused. It follows from that that the application cannot go forward.

Do you seek costs, Mr Beazley?

MR BEAZLEY: I do, your Honour.

GUMMOW J: Mr Capponi, costs are sought against Mr Marinakis. Can you explain that to him.

MR MARINAKIS (through interpreter): Why is not there any justice done in this Court?

GUMMOW J: Ordinarily costs follow the event and the event is that the extension of time is refused. Now, does he wish to say anything on this question of costs?

MR MARINAKIS (through interpreter): It is not my mistake, it is not my mistake. I have been running for so many years now. The lawyers will not lead the way for me. It is not my fault.

GUMMOW J: This is not responding to the question.

MR MARINAKIS (through interpreter): Sorry?

GUMMOW J: Very well. The application then is refused with costs.

The Court will adjourn to reconstitute.

AT 9.59 AM THE MATTER WAS CONCLUDED