Abriel & Ors v Australian Guarantee Corporation Limited & Anor S59/2001 [2001] HCATrans 644 (14 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 2001

B e t w e e n -

RUDOLPH ABRIEL

First Applicant

VERA ABRIEL

Second Applicant

PREMIER KNITS PTY LTD

Third Applicant

and

AUSTRALIAN GUARANTEE CORPORATION LIMITED

First Respondent

WESTPAC BANKING CORPORATION

Second Respondent

Application for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2001, AT 2.35 PM

Copyright in the High Court of Australia

______________

MS L.K. ROBINSON: I appear for the applicants, your Honours. (instructed by Rudolph Abriel & Vera Abriel)

MR J.W.J. STEVENSON: I appear for the respondents, if your Honours please. (instructed by Henry Davis York)

HAYNE J: Yes, Ms Robinson.

MS ROBINSON: Your Honours, the applicants are seeking to leave to rely on further grounds that were not included in the application book. There was communication with the Registry earlier on this week on Monday by Mr Malcolm Hilberry which - - -

HAYNE J: Yes, we received a supplementary submission which - am I right in understanding this - sought to agitate grounds that, although raised by the notice of appeal to the Court of Appeal, were not pressed in the Court of Appeal.

MS ROBINSON: That is correct, your Honour.

HAYNE J: Why should you have leave now to raise them in this Court?

MS ROBINSON: Your Honour, the particular ground in question that was raised before the Full Court of the Federal Court was a question of apprehended bias by the judge at first instance in the Federal Court. The applicants submit firstly that that ground appeared in the grounds of appeal and was clearly there. Secondly, the ground was not raised by counsel before the Full Court and the fact that it was not raised was totally unknown to the applicants themselves. They had not given instructions for it not to be raised and in fact - - -

HAYNE J: Why should we embark on an inquiry about an allegation of apprehended bias when it was raised but not pursued in the intermediate court?

MS ROBINSON: Because, your Honour, a question of apprehended bias is a matter which goes directly to the administration of justice.

HAYNE J: Yes, it does, and therefore one would expect if it is to be pursued, it would be pursued at the first available opportunity.

MS ROBINSON: One would have thought so, your Honour, but it was not. Also, it is a matter of such importance and it is so obvious, the applicants submit, from the transcript of the initial proceedings that the Full Court could of its own motion have raised the question of why that ground was not being pursued by counsel for the applicants at the time.

CALLINAN J: Courts do not do that. This is an adversarial system. It is for the parties to bring forward their points.

MS ROBINSON: Absolutely.

HAYNE J: Counsel appeared in the Full Court?

MS ROBINSON: Yes, there was counsel representing the applicants before the Full Court.

HAYNE J: Other than these further grounds, if I describe them in that way, what do you say about the application otherwise? That is, do you stake your case solely on these further grounds or do you seek to - - -

MS ROBINSON: No.

HAYNE J: Your time is running on, so perhaps we had better hear what you have to say about the other grounds.

MS ROBINSON: The other grounds, your Honour, are that the Full Court of the Federal Court erred in holding that the applicants had failed to request leave to cross-examine a witness pursuant to section 38 of the Evidence Act. Their finding on that issue appears in the Full Court judgment in the appeal papers at page 201. This states he did not seek leave under section 38. Your Honours, the applicants hold that the court erred in that. If I could take your Honours to the transcript in the application book at pages 107 and following.

CALLINAN J: What was the judge supposed to do?

MS ROBINSON: The applicants are saying - - -

CALLINAN J: To give the applicant a lesson in the law? The judge actually referred to section 38 of the Evidence Act.

MS ROBINSON: Yes, he did, your Honour, and if you turn to page 108 at about line 19, his Honour states to the first applicant in the discussion between the Bench and the applicant in regard to section 38:

Well, are you saying something to me about it?

Now, a legal practitioner would probably interpret that as being an invitation to make an application under section 38.

CALLINAN J: No, listen. The point was that the judge referred your client to section 38. Indeed, the judge asked your client whether he had read section 38, is that not right?

MS ROBINSON: That is correct, your Honour.

CALLINAN J: There is a limit to the amount of assistance a trial judge can give to an unrepresented litigant, not only because of matters of efficiency but also the trial judge cannot lean in favour of one party rather than another.

MS ROBINSON: Of course not, your Honour, and the applicants accept that.

CALLINAN J: Well, what is your submission? Could you articulate your submission. What should the trial judge have done?

MS ROBINSON: The trial judge should have been clearer in his instructions or his - - -

CALLINAN J: The judge does not give instructions to the parties.

MS ROBINSON: In his invitation to Mr - - -

CALLINAN J: Judges do not give invitations to parties. Judges sit to hear cases presented to them, not to take sides and not to assist one side to the advantage or disadvantage of either side. It is a sad fact perhaps that people are representing themselves but also the fact that they do represent themselves can cost a great deal of money, time and anxiety to the community at large and to the other party.

MS ROBINSON: Your Honour, the applicants are stating that - - -

CALLINAN J: What is your proposition of law?

MS ROBINSON: The proposition of law is that in dealing with a litigant in person a judge should use everyday language that the litigant can understand when dealing with the litigant in person. His Honour Justice - - -

CALLINAN J: The judge said, "you haven't yet made an application pursuant to section 38 of the Evidence Act, which you say you are familiar with and you seem to be familiar with the idea of a hostile witness. You haven't made any applications." What more could the judge have possibly have done?

MS ROBINSON: He could have said, your Honour, with all due respect, "Are you going to make an application?".

CALLINAN J: I think that is nonsense. There is no proposition of law to support that.

MS ROBINSON: Your Honour, there is a proposition that in dealing - and it is set out in a recent case, Damjanovic v Sharpe Hume. It was decided on 23 November in the New South Wales Court of Appeal.

CALLINAN J: What does it say?

MS ROBINSON: It states that judges should at all times attempt to be as fair and as honest as they can be.

CALLINAN J: Exactly.

MS ROBINSON: Your Honour, the applicants are submitting that Justice Dowsett was not being as fair as he could be with a litigant in person. He was using legal terminology which the litigant in person could not understand. Apart from the fact that the litigant in person is not a lawyer, he is not even a native English speaker.

CALLINAN J: How long did this case take?

MS ROBINSON: I believe four days, your Honour. The applicants submit that it is a question of great public importance as to how litigants in person are dealt with in the courts. The judge at first instance was dealing with a litigant in person who was not a native English speaker and that in putting questions to the applicant and in interchanges between the applicant and the Bench, the judge should have put his mind to using language which the litigant in person could understand. The language used by his Honour Justice Dowsett in the exchange in the transcript from pages 107 to 108 is not couched in language that a litigant in person can understand. His invitation to the applicant to put an application under section 38 of the Evidence Act is couched in legal jargon, not in plain words.

CALLINAN J: I think we understand the point. Are there other points?

MS ROBINSON: No, your Honour, just that the court erred also in finding that there had been no denial of natural justice in the first applicant not being allowed to cross-examine. On the authority of Stead v State Government Insurance Commission, the authority states that where a party is denied natural justice because of the opportunity to present evidence, then the basis for a retrial is on the basis that there is a possibility that the evidence which might have been led could have changed the outcome of the case.

The applicants submit that in the refusal for the applicant to cross-examine under section 38, that there was a possibility that had he been allowed to cross-examine the witness, then there could have been evidence brought out under cross-examination which could have considerably assisted his case, if not changed the outcome.

HAYNE J: That has to be understood in the light of paragraph 15 of the Full Court judgment at page 201 where their Honours say that the evidence in question "was in large part elicited as a result of cross-examination".

MS ROBINSON: Yes, "in large part", your Honour, but how large a part? There is no way of assessing what other evidence could have been adduced had the applicant been allowed to legitimately cross-examine the witness. The authority states it is a possibility. It does not have to be a probability. It does not have to be as strong as a probability; a mere possibility that the evidence which might have been adduced could have changed the outcome of the case.

CALLINAN J: If you look at the summary of the exchanges at page 201, his Honour bent over backwards to assist your client, and then your client purported to interrogate the judge. People cannot interrogate judges about how they might or might not decide the case in the end after they have heard all of the evidence. Nonetheless, in the exchanges the trial judge could not have made it plainer.

MS ROBINSON: Your Honour, as I have said before and as your Honours know, the person before the court was a litigant in person. Had those types of exchanges taken place between the legal practitioner and the judge, then, yes, they would be delinquent, but we have here a litigant in person and a very elderly gentleman who has been before the judge for four days arguing his own case. In fact, I believe at the time he was 78 or 79 years of age, a non-English speaker, in a matter which he believed involved life or death.

HAYNE J: The emotional investment was very large, I understand that, Ms Robinson. It is not so long since I have been a trial judge that I have forgotten that.

MS ROBINSON: Yes. So that is one of the factors that must be taken into consideration when looking at the applicant's behaviour. Admittedly, it must be incredibly difficult for a trial judge dealing with a litigant in person in those instances but, because it may be difficult to deal with a litigant in person, because it takes longer to conduct a trial, that is no reason why we should say that because it was a litigant in person it does not matter on the outcome.

HAYNE J: No, Ms Robinson, that proposition is self-evidently true and it is not going to go unremarked. The fact that Mr Abriel appeared for himself does not, emphatically not, mean that the case does not matter. It does not, emphatically not, mean that he is entitled to some lesser or imperfect standard of fairness. There can be not the slightest misunderstanding of that. Indeed, because he is in person, or was in person at the relevant time, the courts have to undertake burdens larger than normal. I well understand that the complaints you make are to be judged against that higher standard that applies because Mr Abriel appeared on his own account.

MS ROBINSON: Thank you, your Honour. That was the main point other than the - I would just like to conclude by stating that the matter does have extreme public importance. We have authorities scattered - - -

CALLINAN J: Why does it have extreme public importance?

MS ROBINSON: Because, your Honour, the High Court has the ability to propound rules as to how courts should deal with litigants in person. Those rules - - -

CALLINAN J: To treat them fairly, to give them neither advantage nor disadvantage. It is well settled.

MS ROBINSON: It is well settled in various authorities, your Honour. The applicants' contention is that if the High Court were to make a decision, it would be in one particular case, one particular decision. So that not only the legal practitioners could advert to that one authority, but also other litigants in person who can then become aware of their own rights before the courts.

CALLINAN J: Their rights are to get a fair trial. They know that.

MS ROBINSON: Absolutely, your Honour, but there is also the manner in which that trial is to be achieved.

CALLINAN J: Not to be coached in the law as the case goes along. They have no right to have that.

MS ROBINSON: No, your Honour, of course not. However, the principles are - - -

CALLINAN J: The principles are clear.

MS ROBINSON: But they will perhaps, your Honour, be even clearer if they were placed in a single judgment rather than in a number of judgments as they are now.

HAYNE J: I think we understand the point that you seek to make, thank you, Ms Robinson. We need not trouble you, Mr Stevenson.

The applicants sought leave to expand their application for special leave to appeal to include grounds which had been raised in the notice of appeal to the Full Court of the Federal Court of Australia but were not pursued in that court. That application, in our opinion, should be refused.

As for the grounds that were advanced in the application for special leave to appeal, it is enough to say that the judgment of the trial judge depended critically upon findings of fact which he made and which, in important respects, were based on his assessment of the credibility of the witnesses. Furthermore, it seems to us, in any event, that the trial judge gave the principal applicant, who appeared on behalf of the other applicants at trial, every opportunity to present the applicants' case and to test the case for the respondents.

The Full Court reviewed the findings of fact which the trial judge had made and did so applying orthodox principles. There is, in our view no reason to doubt the correctness of the decision of the Full Court. That being so, special leave to appeal is refused, and refused with costs.

AT 2.54 PM THE MATTER WAS CONCLUDED