Kien Dan Luu Pty Ltd & Ors v Australian Mutual Provident Society Pty Ltd A35/1999 [2001] HCATrans 379 (16 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A35 of 1999

B e t w e e n -

KIEN DAN LUU PTY LTD

KIEN DAN LUU AND VLASSIA SOULA LUU

Applicants

and

AUSTRALIAN MUTUAL PROVIDENT SOCIETY PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 16 AUGUST 2001 AT 3.36 PM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC: If the Court pleases, I appear for the respondent. (instructed by Johnson Winter & Slattery)

MR K.D. LUU: Kien Dan Luu and Vlassia Soula Luu, my wife, applicants.

GLEESON CJ: Mr Luu, you are representing yourself?

MR LUU: Yes, your Honour.

GLEESON CJ: I want to say something to you before you begin your argument. For many years I had policies of life insurance with the AMP Society and for a number of years I had superannuation policies with the AMP Society. When the AMP Society demutualised a couple of years ago, I therefore was issued some shares in the AMP Society. I have never either bought or sold any shares in the AMP Society, and so far as I am aware, the outcome of this case could not possibly affect the value of my shares in the AMP Society. I say that to you in case there is anything you want to put to me about whether I should sit.

MR LUU: We have been discussed the - - -

GLEESON CJ: I am terribly sorry, could you speak into the microphone.

MR LUU: Yes, your Honour. We have been discussed with my wife and we can put in another day for hearing. Just adjourn the matter for another hearing.

McHUGH J: I cannot hear you, Mr Luu. You want to adjourn?

MR LUU: Seeking to adjourn, yes.

McHUGH J: You want to adjourn? Why do you want to adjourn?

MR LUU: Maybe.....from your Honour but the shareholder just you mention before, but this matter, if your Honour concerned about a share policy holders, turned out owner personally, and applicants concerned for next hearing day, adjourn to another hearing day.

GLEESON CJ: I take it what you want is for us to adjourn the case so that some other judge can sit in my place?

MR LUU: Yes, your Honour.

GLEESON CJ: What I want to ask you is this. Do you have any reason to advance as to why the outcome of this case might affect the value of the shares in the AMP Society, or any other reason why I should disqualify myself? I do not propose to disqualify myself without having a good reason to do so, we do not allow litigants to choose their judges.

MR LUU: This happen in the Supreme Court. We got a shift judge and other justice.....was not a shareholder and policy to respondent.

GLEESON CJ: I am having a little difficulty - - -

MR LUU: This happen - - -

GLEESON CJ: It is not your fault entirely I might say, I am a bit hard of hearing myself at the moment. Do you say the same sort of problem arose in the Supreme Court?

MR LUU: Yes, the same problem from the Supreme Court. The Chief Justice of the Supreme Court and Justice Duggan have the policy with the respondents and the shareholders. They have been announced before hearing day, but we not take any notice, so now judgment I think is wrong.

GLEESON CJ: Do you want to say anything about this Mr Well?

MR WELLS: No, your Honour, unless your Honours wanted any assistance with what Mr Luu has just said about what happened in the Supreme Court.

GLEESON CJ: I would like some assistance with that.

MR WELLS: I am just trying to recall, but I think he is right that, I think it was the Chief Justice who indicated that he had been a holder of life policies. I actually have a small portion of the transcript if it would assist the Court, we put together a small, supplementary book. He declared that he was the holder of some life policies, three or four I think his Honour said, and on that occasion counsel acting for the applicants indicated that they had no objection to the Chief Justice sitting. That was the history of it in the Supreme Court.

GLEESON CJ: It looks as though they have taken the view that having not objected to Chief Justice Doyle sitting, and having lost in front of Chief Justice Doyle, it would be prudent to object to me sitting. I understand the process of reasoning, but we still have to look at the question of whether there is any reason for disqualification. I think this Court said in Ebner that judges should not disqualify themselves without having a good reason to do so.

MR WELLS: Indeed.

GLEESON CJ: I am inviting assistance from both sides on whether there is any reason. One possible reason being, for example, that the outcome of these proceedings could in some way affect the value of the shares in the AMP Society. I do not know of any reason why that would be so, but I am inviting assistance on that issue.

MR WELLS: Your Honour, I cannot offer any further assistance because our respectful submission would be that there is no basis upon which it could be said that the outcome of this application, and if were granted, any appeal, would affect the value of any of the shares in AMP. The amount involved is not of any proportion which, if I may say so with respect, would shake the foundations.

I am sorry, your Honour, I think perhaps for the sake of completeness I ought to say that the transcript also shows that Justice Debelle who sat also declared an interest. He had a sum of money invested and no objection was taken to his sitting either.

McHUGH J: Mr Luu, what the law says is that a judge should only disqualify himself for holding shares in a company, if the result of the case would affect, or could possibly affect, the share price. If we granted special leave in this case and you won the case, it is not likely, is it, that the share price of AMP would fall the following day?

MR LUU: I am not thinking falling the following day, but for my opinion, just for your Honour personal something, just say interest, personal interest, because a relationship with AMP.

McHUGH J: That is not enough. These points have been argued in this Court in the last six months, last 12 months, and the Court has held that the fact that a judge holds shares in a company is not, by itself, sufficient reason for the judge to disqualify him or herself. Unless you can show that your likely verdict is likely to be so great that it could have an affect on the share price of AMP, there would appear to be no ground for the Chief Justice to disqualify himself.

MR LUU: In the commercial.....this accepted. Just a small amount, but in the personal injury, personal interest acting this more laterally, than the commercially.....

McHUGH J: If you got a verdict of even $200,000 for personal injuries, it is not going to affect the share price of AMP, is it? What is the share capitalisation of AMP? It is in the billions.

MR LUU: Yes, I know that, your Honour. But happen in the history, and have an announcement to the applicants and the listing accept this for our case.

GLEESON CJ: Mr Luu, so far as I can see there is no way in which my personal interests, financial or otherwise, could possibly be affected by the outcome of this case, and nothing that you have put has indicated to me any reason why I should disqualify myself, so I do not propose to do that. You go ahead with your argument.

MR LUU: Yes, your Honour. The applicants' application for special leave to appeal should be granted on the following grounds. First, the Full Court of the Supreme Court of South Australia judgment given on 14 October 1998 is wrong as matters of law on the following grounds: (a) The applicants' amended defence and counterclaim set out in paragraphs 1 to 14 on 10 December 1996; (b) amended applicants' application for leave or special leave to appeal set out in paragraphs 1 to 10 on 28 July 2000; (c) the applicants' summary of argument set out in Part I to Part VI on 28 July 2000; (d) applicants' reply to the respondent's summary of argument set out in paragraphs 1 to 12 on 27 October 2000; (e) all the 22 items/documents it gives in the supplementary material applicants' book, pages 1 to 211, as matters of law.

As such, the Full Court of the Supreme Court of South Australia's judgment was wrong in adopting the wrong decide judgment by Judge Pirone in the District of South Australia given on 25 February 1998 and 6 March 1998. 2: The applicants dispute the Full Court of the Supreme Court of South Australia's decision which adopted the wrong whole decision by Judge Pirone as facts and matter of law. 3: Judge Pirone was wrong in duty giving to the respondent unlawful way by its conduct of the trial. 4: The Full Court of the Supreme Court of South Australia judgment and Judge Pirone were wrong as facts and matter of law. 5: The applicants complain and dispute the whole of said judgment of the Full Court of South Australia and the whole of the said judgment of Pirone on the following grounds:

Your Honour, the applicants contended that the first applicant had achieved or maintained the required performance standard. Again, the second applicant, as the first applicant, was a professional, experienced agent working long hours and hard work to develop further into a very successful agent. Since October 1986 to May 1994, around 8 years your Honour, the average income was level and steady, was of $38,165 per annum. Your Honour, see the schedule of income exhibited D20 AMI in supplementary material application book, pages 1 to 2. This to be good income and accepted by the respondent, your Honour.

That the respondent, since March 1994, through its employee, new agency manager, name Gary Leverington, unlawful discriminated against the second applicant by terminating the first applicant's contract of employment, for substantial reason that the second applicant had been with AMP too long, and because the second applicant is Chinese, and his own term agency manager bonus. The respondent unlawful terminate agency and breached the first applicant's contract of employment damage on 25 May 1994. Refer to the application book, page 53, line 14 to 15, the letter dated 27 April 1994 of the Leverington to the first applicant in which the statement is made: "your Agency with the AMP Society will be terminated on 25th May 1994." Refer to letter exhibited D18 of documents 53 and 54, the first applicant to the respondent dated 25 March 1994 and 22 May 1994 in the supplementary material application book page 9 and 10. As such, the respondent unlawful of which damage by the Leverington, the second applicant suffered hurt and feeling of humiliation, being stress surrounding the second applicant's employment.

The Full Court of the Supreme Court and Judge Pirone was wrong to discount the first applicant's income, and that damage for loss of income of $38,165 per annum from May 1994 to date of judgment working life should be awarded as a matter of law.

Further, the second applicant build up for the size of the first applicant insurer register business value was $40,957.89. It is reverted to the respondent, your Honour - refer to the schedule of register value at exhibit D20 AM4 in the supplementary material application book, page 3 to 5 - that accepted by the respondent, your Honour. As a result of the respondent's unlawful termination of the contract of employment, the register business value could not discount the Full Court of Supreme Court of South Australia, and that Judge Pirone was wrong in discounting the value of the loss of the first applicant's register value business at $25,135, should be paid in full value of $40,957.89 as matter of law.

The second and the third applicants suffered by the way of the respondent's unlawful conduct, damages from loss of the concessional home loan mortgage. The measure of the loss is calculated to 1997 at $6,690 - refer to the schedule of concessional home mortgage exhibit D20 AM5 in supplementary material application book, page 6 to 8 - that accepted by the respondent.

McHUGH J: Mr Luu, you give no reasons for saying that the judges below wrong, and this Court does not grant leave unless there is something very special about the case. We only can hear about 70 or 80 cases a year. There has got to be something very special about it, and your case just seems to be a question of facts. There is no important questions of law involved in the case.

MR LUU: Yes, your Honour. More further, your Honours can see this the case now .....this case is a matter of law, your Honour, and the reason now the applicants contend that no agreement was even in place between the respondent and the first applicant to change any item of the contract 1987, of Part 1 and Part 4 apply from 1 January 1984, and accept appointment of the corporate agents - refer to exhibit D18, documents 7, D24, D25 and P43 in supplementary material, application book, page 34 to 158, and page 159, page 160 and page 161, line 15.)

Your Honours see again, in the letter dated 25 July 1994 from the respondent to the first applicant at exhibit P43, the statement says:

To up-date the current agency agreement which has been in use for over 10 years.

The.....the contract 1987 Part 4 in supplementary material application book, page 156, lines 17 to 18, states that the agent had:

Freedom of action to run your own business, to dictate your own earnings by the results you achieve.

All the totality of the evidence points the respondent clearly unlawful discriminating in the termination of the agency business - - -

McHUGH J: That is what happened, was it not? The trial judge found that the respondent had unlawfully terminated the agency business.

MR LUU: Yes, but just put in the contract, not for the contract 1987, but it just put in the contract the second applicant and the first applicant never forfeit that contract, the contract 1991 having mentioned in the court from the respondent. On occasion, your Honour, for the ADL, for ADL for the law, the respondent make a statement, came in the court.

McHUGH J: The contract was never terminated from the 25 May, was it?

MR LUU: Yes, but this happen then, on 25th May, the applicant had been mentioned with your Honour before, this Leverington perform discrimination based on the.....application book, page 53, lines 14 to 15, the letter 27 April 1994 from Leverington to the first applicant in which the statement is made "your agency with AMP Society will be terminated on 25th May 1994".

So, that time already respondent feel, suffer and feeling, and have been damaged on that day, and.....the contract 1987 only one contract, AMP, within the applicant and respondent, Tom and.....that say the agent have "Freedom of action to run your own business, to dictate your own earning by the results you achieve."

Your Honour, the respondent unlawful terminate, and I have been damaged, on 25 May 1994, and the applicant - - -

McHUGH J: You continued on working for them until they terminated the contract in September 1994.

MR LUU: Yes, because that how I have been damaged, and then your Honour, the suffering until 28 September terminate, but they terminate on 28 September 1994 by, signed by the State Manager, Greg Robbie, and having argued during the court that Greg Robbie did not come to court and give any evidence on that document.

McHUGH J: He did not have to.

MR LUU: No, I think so, because this we have argument damage on 25 May 1994, have been terminated by Leverington, and what.....between Leverington and Robbie and issue another letter on 28 September, only that time have been damaged, and my income have been damaged, and for a personal suffering and for feeling that surround the applicants' employment, and another matter of law about for the respondent.....on the loan ADL, they call ADL, the applicants contend that the agency development loan of $19,144 was established in 1989, your Honour, with no interest, no repayment, and this was spent industriously by the first applicant in the development of sub-agencies and the office interstate.

In further building the size of the company and the company register business value of $40,957.89 - refer the schedule having been mentioned before - the schedule list the value at exhibit D20 AM4, and this amount, which of $40,000 for security to the agency development loan, the register value of the first applicant was worth more than the agency development loan, and the applicant contend that the agency development loan should not repay based on the respondent's unlawful termination of agencies, and breach the first applicant's contract of employment.

Your Honour, this loan agreement develop applicants, second applicant and third applicants business if so far on the ADL, if so far on.....the respondent - this loan no injured, no repay. If the breach from the respondent unlawful, this contract no repayment.

McHUGH J: Mr Luu, what you have to understand is there has to be something very special about the case. There has got to be some important point of law which affects other people - - -

MR LUU: Yes, your Honour - - -

McHUGH J: Your case is concerned with your facts, and that all the facts have been found against you by the trial judge, and they have been upheld by the Full Court.

MR LUU: Yes, your Honour. This because the respondent is prohibits, both at common law, and pursuant to section 51AA and 51AB of the Trade Practices Act 1984 from acting in this manner.

I believe, your Honour, we believe, the applicants, we believe, the applicant - have no case. No case, and as to the second and third, pay the ADL, and the second and third applicants become further distressed and suffer and feeling humiliation, and to the person now to the - - -

McHUGH J: Yes, but the contract was with the company, not with you, and under the law of this country you cannot sue for the breach of the contract between the company and AMP.

MR LUU: The respondent, again unlawful claim against personally to the second and third applicants on their statement came in the court on 1996, if no wrong. So this suffering for feelings many years, and employment, and financially suffer, and the applicants sold house, sold car.

McHUGH J: Yes, but it was only the company that had the contract with AMP, and AMP unlawfully terminated that contract and the company can get damages for it, but neither you nor your wife are entitled to any damages for the stress or any health problems that you may have had a result of it.

MR LUU: But I say, the applicants say, again, the first applicant breached the business the value $40,000 was greater than the ADL loan, but that have been lever and security for the ADL loan, I have been lever....by respondent, and in additional, the respondent to unlawful to claim on the personal, the first applicant, and the personal second and third applicants, by legal proceedings. This damage, have to be awarded because it unlawfully, and your Honour had to see - look at this. The applicant contend again, that due to the nature of the relationship between the first and second, and the third applicants. The second and third applicants are only the party to the contract with the respondent for the unlawful and breach, they claim damage and personal injury to the second and applicant damage by the way of compensation that for any loss and damage suffered this reason of the unlawful conduct of the respondent caused to the second and third applicant, that damage should be awarded.

Your Honour, this again, this case it happened unlawful of which damage and loss, and suffering, in every country of the war should be toughest, and should be war. The applicants have case, the applicants want justice.

McHUGH J: Thank you.

MR LUU: Thank you, your Honour.

GLEESON CJ: Mr Wells, can I ask you a question? These proceedings were commenced in the Magistrates Court?

MR WELLS: Yes, I think that is right initially, your Honour, but it was removed into the District Court, in part because of the counterclaim, so it went to trial before a District Court judge.

GLEESON CJ: Yes, and what are your submissions in response to the application?

MR WELLS: Your Honour, we wondered whether it might be of some assistance to the Court if we were to attempt, if we could, to set out what we understand to be the complaints made by Mr Luu and the other applicants, and on that basis to put forward a response.

We entirely understand that he might have some difficulties in at least orally communicating, and I have listened carefully to what Mr Luu has said, and it seems to me that he has been really through the outline that he has prepared and filed with the Court, save for, as I noted it, perhaps three extra matters which do not appear, either in his outline or in the application or the proposed the grounds of appeal.

Would it be of assistance if I were, in the first instance, to hand up a small booklet which contains a schedule of what we understand to be Mr Luu's complaints?

GLEESON CJ: Have you shown a copy of this to Mr Luu?

MR WELLS: No, it has only been settled as of today, but I have a copy for him.

GLEESON CJ: I presume he is going to need an opportunity to read it. How many pages are in it?

MR WELLS: It is only a few pages that are of any assistance from the point of view of his submissions.

GLEESON CJ: How many pages are there in the booklet that you have prepared?

MR WELLS: Your Honour, it is not paginated. What is contains are three separate things. First of all a schedule - - -

GLEESON CJ: Can you give me an approximate idea of how many pages there are in the booklet that you have prepared and are about to show to Mr Luu for the first time?

MR WELLS: It would be in the order of 20, your Honour, of which only I think about 4 or 5 are of any importance.

GLEESON CJ: Presumably, if you are going to use this booklet, he is going to need an opportunity to read it and satisfy himself that there is nothing in it that he wants to answer.

MR WELLS: Your Honour, I am happy not to use it. I am simply seeking to - - -

GLEESON CJ: We are not inquiring as to your pleasure, I am simply pointing out that it would not be fair to Mr Luu to permit you to hand up to us now a book of 20 pages or so of materials which he has never had an opportunity of reading. It may be that the practical answer to that is that you can hand the book up to us now, and we can adjourn until tomorrow morning, but I simply point out to you that seeking to use a booklet at this stage that you have not given the other side an opportunity to look at, is going to be productive of a fairly obvious difficulty.

MR WELLS: I understand what your Honour is saying to me. The purpose of the booklet was an attempt to assist the Court, given the difficulties that Mr Luu has had. In order to do that it was not appropriate, your Honour, until we knew what it was that he was saying, to even consider providing the booklet. It is an attempt, your Honour, to try to give some short expression to what we understand to be what appears in Mr Luu's written outline which we found, if we may say so with respect, a little confusing.

GLEESON CJ: It will now be necessary for me to ask Mr Luu a question. Could you take a seat thank you.

MR WELLS: If your Honour pleases.

GLEESON CJ: Mr Luu.

MR LUU: Yes, your Honour.

GLEESON CJ: You have just heard that Mr Wells is proposing to hand to us a booklet that you have not yet had an opportunity to see. One possible course for us to take is to receive the booklet from Mr Wells - it is now 14 minutes past four in the afternoon. We normally adjourn at 15 minutes past four in the afternoon - and you can take the booklet away and look at it over night and let us know tomorrow morning at 9.30 am when we resume, whether you have any objection to us looking at anything in the booklet, or any comments you want to make on the booklet. Are you content with that course?

MR LUU: This not fairly the booklet to handing for the applicants in this Court for the oral argument, and - - -

GLEESON CJ: Thank you, sit down Mr Luu, take a seat. Mr Wells, it is perfectly obvious that attempting to use written material at this stage that Mr Luu has not yet had an opportunity to see, regardless of the intentions behind it, will be obviously productive of a complaint that there has been an absence of procedural fairness. Nothing, I would have thought, is more readily predictable.

MR WELLS: That is quite apparent, your Honour.

GLEESON CJ: How long do you expect your oral submissions will take?

MR WELLS: Your Honour, we would think probably 5 or 10 minutes.

GLEESON CJ: Why do you not go ahead with those now?

MR WELLS: If your Honour pleases. Could I just say first of all, your Honours, that it may be of assistance if your Honours were - in the application book to turn to page 158, which is the amended application for leave or special leave to appeal, which is in the same terms as the proposed notice of appeal, which is on page 161. What we would put to the Court, I hope shortly, is this: both the application and the notice of appeal complains of certain findings and, in particular, says, for example in 2.a., that it was wrong to hold that there was no contract between the second and third named appellants and the respondent for breach of which damages could be awarded.

The answer that we make to that, if the Court pleases, is that that was the finding, those were the findings of the trial judge. It was, unlike a number of the other grounds that have been advanced by Mr Luu, a ground of appeal before the Full Court, and the Full Court upheld the trial judge upon the basis that there was no evidence of any contract between the individual defendants, now applicants, and AMP. There had been, there was initially at the probationary stage a contract with Mr Luu personally. The learned trial judge found that that had been replaced by the contract that was entered into between AMP and his company at the end of the probationary period, and that it was a replacement contract and not a contract operating concurrently.

McHUGH J: What I could not follow in Mr Luu's submissions is the claim that the contract was terminated on 25 May. How did that arise in the case?

MR WELLS: I was hoping that your Honour would not ask me that because, I cannot, I am afraid now, quite recall exactly the sequence, but it is certainly true there was correspondence.

McHUGH J: There was a letter from Mr Luu in his handwriting dated 22 May I think, and it is around about page 10 or 11 of the application book. I have just got no recollection of seeing a date 25 May.

MR WELLS: No, there was correspondence that preceded the termination, and it appears as though Mr Luu perhaps feels that some of that correspondence has, in affect, had the effect of bringing to a halt his commission agency. The finding that was made by the learned trial judge, and might I say a finding that was not the subject of challenge on appeal to the Full Court, was that the termination occurred in September, and that that was also the date on which, as his Honour held at trial, that AMP had failed to comply with the procedures laid down in the relevant contract for termination. Whatever happened before, the finding that was made was September. That was not a challenged issue before the Full Court, and a number of the matters that are raised by Mr Luu appear to be of that kind. That is, matters that were resolved at trial one way or the other, but were not the subject of appeal to the Full Court.

The first complaint is no contract. The second complaint is that even if there was a contract, it was wrong to say that the applicants could not recover damages. That is not a matter that we would say attracts any consideration for special leave, particularly as there was a finding that there was no contract, so it is in any event, moot. His Honour the Chief Justice, in the Full Court and in this respect concurred in by the other members of the court, express the view also that even if there had been a contract, there would be no basis upon which damages for personal injuries could be awarded. He also offered the view, which came only in the Full Court in that obiter, that there did not appear to be any basis for finding a duty of care. That seems to be because the pleadings simply said "we are claiming damages for personal injuries". His Honour was really the only one who considered whether possibly even there was a duty of care; as his Honour expressed it, the duty of care to refrain from exercising a contractual power. That was not a matter which was itself explicitly the subject of any submissions in the Full Court and, indeed, was not apparently the subject of any consideration by the learned trial judge. It was put simply on the basis of contract, and that deals, as we would see it, with the first three matters in the notice of appeal, the proposed notice of appeal.

There is a complaint which is 2.d., that the Full Court was wrong in upholding the finding that the required performance standards part of the contract had not been maintained. That is a matter simply of fact, and we would say furthermore that it was not a fact that was the subject of challenge in the Full Court, and was not the subject of any discussion in the Full Court, and on those grounds, and including the absence of any matter of public importance, we would submit that there is no ground there for special leave. The complaint is made, and I think repeated by Mr Luu, that the finding by the trial judge that the loan was repayable - this was the Agency Development Loan - was wrong. In that respect again, that is, challenging a finding made by the learned trial judge which was not the subject of a challenge on appeal to the South Australian Full Court, and on that ground again, we would respectfully submit that there is no basis for the grant of special leave.

We have had some difficulty in understanding the complaint made about costs which is 2.f. That is because it would appear that Mr Luu has confused two sets of orders. One, the set of orders made by the learned trial judge, and the other, the orders made by the Full Court on the appeal when they gave their reasons and made orders. The appeal seems to be to combine those. If we can put that aside, our short response again, if the Court pleases, is that it would very rarely be a case that a matter of costs would justify a grant of special leave. We are talking about a discretion. There is no question raised as to the applicable legal principle and, as Chief Justice Doyle said in the Full Court, it is a wide discretion that the trial judge had and is not disposed to disturb it, and that their Honours considered in addition to that, the orders that they made as to costs on the appeal and the cross-appeal.

That leaves, if the Court pleases, only, what we perceive to be one further ground. It is not expressed as a ground, but at page 162 of the application book under the heading "Orders sought", paragraph 3, there is a further paragraph which appears to us to be not orders sought at all, but two further complaints. One complaint was about the limited assessment of damages on the basis that, as your Honours may recall in the judgment, the learned trial judge said that even though it was a wrongful termination, the AMP had a right under the contract to bring the agency to an end anyway, and they would have done that within four months, in any event.

That is the subject of complaint in that paragraph 3, and we apprehend also there is a complaint which is to this effect, that the motive or basis for the termination was racially based. That had been a matter that was raised at trial and was rejected by the learned trial judge on the basis that he disbelieved Mr Luu. It was not the subject of challenge to the Full Court. The assessment of damages was the subject of challenge to the Full Court and it was dealt with by their Honours, and the matter was dealt with ultimately in this way, by their Honours saying the trial judge's approach was right based on the facts that he found, but that they noted that there had clearly been a breakdown of the relationship quite independently of Mr Luu's failure to meet performance standards and that AMP could have, and would have, terminated the appointment for that reason. On that further ground, they upheld the conclusions reached by the learned trial judge as to the basis for the assessment of damages.

Our submission is that even if we treat that as part of Mr Luu's application to this Court, that the Full Court was clearly correct; that the applicable legal principle was not in doubt; that it involved effectively factual matters only, and that there is no point of public importance which is identified or raised by those complaints.

Your Honours, I noted only in addition, from what Mr Luu said at the Bar table, perhaps two other matters. One was his complaint about the concessional home loan mortgage for which he was awarded some damages, but he was awarded them again on the basis that, in effect, there was a loss which went only for four months. That is, the period that the learned trial judge held would have been the period after which the AMP would have terminated the agency agreement anyway. It would appear that Mr Luu is complaining that that ought to be more, but it is limited by the period that was set by the trial judge for the period of loss.

McHUGH J: There is one other matter that he did raise in argument, I think, I am pretty sure he did in addition to the matters grounds 2 through, and that was the argument that the value of the register was such that the sum of $40,000 was not sufficient to compensate him.

MR WELLS: Yes. Your Honour, that was a matter that was canvassed in the Full Court, and as the trial judge had observed, he had very unpromising material to work with in trying to make the estimate.

McHUGH J: The AMP left the registers with him to give him an opportunity of selling them, did - - -

MR WELLS: Yes, and he could not.

McHUGH J: Yes.

MR WELLS: So it, immediately, we said, showed that their value perhaps was not very high, and at all events we complained ourselves about the basis upon which the learned trial judge in fact made that assessment. Our complaint was that it should not have been even as high a valuation as his Honour put on it, having regard to the materials that had been provided to him for that purpose. That is all factually based, and right or wrong, the issue that is raised is simply whether the learned trial judge was right on the evidence that was before him to come to the conclusion that he did. The Full Court held that it was not a matter on which they ought to intervene either way, because there was a double attack there from both sides on that valuation.

The other matter that I thought I caught Mr Luu referring to was his complaint which was aired at trial, as to what was the contract, because there was an issue about whether it was a contract in the form which it appeared at the probation stage, 1987, or whether it was a contract which had that original form but was subject to a number of subsequent additions in accordance with the terms of the original contract. The learned trial judge held that it had been added to and modified by subsequent memos to agents, as they were called, MTA's.

McHUGH J: Sorry, to go back to the question of the registers. Mr Luu asserted that registers were worth nearly $41,000-odd, I think. What sum was he given for them, do you recollect, just approximate?

MR WELLS: No, I do not recollect, your Honour, I am sorry. I might have to take a moment to recall it, if your Honour would just bear with me. The valuation of the registers was dealt with by the learned trial judge at pages in the application book starting at page 75, and going through to page 86. I think I am right in saying that it was about page 86, yes, at line 32, if the Court pleases:

It follows, therefore that I assess the market value of the registers at a total of $25,138.00.

Those were the only extra matters.

McHUGH J: Yes, the judge made a tentative assessment of $37,000-odd and discounted it by a third.

MR WELLS: Discounted it, yes, that is right. Those are our submissions, if the Court pleases.

GLEESON CJ: Mr Luu, do you wish to say anything in reply to what Mr Wells had said?

MR LUU: Yes, your Honour. For the excuse for the respondent counsel had been put, the respondent should not terminate after four years, any time, anyway. The applicants' reply, this appeal for this, because your Honour see in the statement of the respondent did not mention upon this issue and this kind of matter. Secondly, this case is discrimination and race.....of employment. We refer to the case of the Equal Opportunity Act (WA), section 66Q. This case from Equal Opportunity, the subject of the ground, is discrimination on the ground of the impairment.

Really, your Honour, see that Mr Leverington, the respondent, through his employees, to discrimination with respect to the second applicant, and terminate the first applicant's contract of employment. This happened there very clearly face to face, and.....step by step, and the damage had been done on 25 May 1994. No reason, the respondent, to put back now the time or the argument in the Court today say, can be terminated after four months in any event. This is not acceptable, and the respondent unlawful discrimination contract of employment.

McHUGH J: What the judge found was that, in any event AMP could have terminated the contract within four months of September 1994. It could have done so lawfully.

MR LUU: Unlawfully, your Honour. Your Honour, the second applicant ask.....the first applicant with AMP since 1986. This is very successful agent, experienced, professional. No reason the new agency manager come with the substantial reason to the second applicant, he said "stay too long", or other reason "for Chinese men", and so that is from March 1994, your Honour, from March 1994. Until 25 May 1994 the totality damage and terminate on that letter from Leverington. The respondent - the applicant reply to letter on behalf of second applicants, for the first applicant to the respondent, and copy no less to Leverington. That letter again, 22 May 1994 to the respondent.....and the respondent meant in the letter, and this letter have not state, about Leverington, and this appeal to Leverington the decision, discrimination, and Leverington.....

This letter, your Honour, have not got any response from that letter. Clearly, the respondent on that point, no reason to say now in the oral argument the respondent counsel put back to terminate any time in four months after unlawful terminate. This never happen. Why no happen for during around 8 years time? Why happen when Leverington come in?

GLEESON CJ: Yes, thank you.

MR LUU: Yes, your Honour, thank you.

GLEESON CJ: The Court is of the view that this case raises no issue suitable to a grant of special leave to appeal and that there has been no miscarriage of justice involved in the proceedings in the South Australia courts. The application for special leave to appeal is refused.

Now, what is the position about costs, Mr Wells?

MR WELLS: My instructions are to seek them, your Honour.

GLEESON CJ: Now, what do you want to say about costs, Mr Luu?

MR LUU: Your Honour, the case now, this case - because I say again, because the respondents have not got case, the respondent have to pay the applicant 100 per cent costs of the proceeding anyway.

GLEESON CJ: The applicants must pay the respondent's costs of the application.

AT 4.34 PM THE MATTER WAS CONCLUDED