Mann v Commonwealth of Australia & Anor S168/2001 [2002] HCATrans 186 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S168 of 2001

B e t w e e n -

CHRISTOPHER PETER MANN

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 APRIL 2002, AT 2.47 PM

Copyright in the High Court of Australia

MR C.P MANN appeared in person.

MR M.R. ALDRIDGE, SC: May it please your Honours, I appear for the first respondent. (instructed by the Australian Government Solicitor)

MS V.A. HARTSTEIN: May it please the Court, I appear for the second respondent. (instructed by Crown Solicitor for the State of New South Wales)

McHUGH J: Yes, Mr Mann.

MR MANN: Due to having a stroke, my wife will help me with documents.

McHUGH J: Yes, Mr Mann.

MR MANN: Thank you. Perhaps you could give me some guidance of which part you want me to deal with in this case. It seems to centre on the Limitation Act 1969 and the objection that has been raised by the other parties is that we are out of time.

McHUGH J: Well, that is so, yes.

MR MANN: And we say we are not out of time because we had not been given documents that we required because the Department of Immigration and the Health Department and the New South Wales Health Department had said that we could not have any documents because they were protected by various Privacy Acts. Then I took proceedings in England against a doctor who we had dismissed here, due to him defrauding Medibank, and also during that time he suffered an acute attack of paranoid schizophrenia. During the course of the action in London we were required to discover documents in Australia and we asked the various departments here for access to the documents so we could list them and they refused on privacy grounds and we told the British Court this and they accepted it and proceeded towards trial. I did, by the way, win the action as litigant in person in England - - -

McHUGH J: Yes, I know, but you got a lot less than was paid into court.

MR MANN: Yes. Well, that was because the judge said the jury should limit the amount because it had been limited publication. However, after the trial our costs taxation accountant and our solicitors worked out that our costs were in the region of 300,000. Then Mr Rubinstein, who was acting for the solicitor - for the defendants in England came out here. He got access to documents and we later found out that he got these by misleading various public servants.

McHUGH J: Mr Mann, we have read all the material in the judgments below and the critical point against you is that Mr Mann's - affidavit came to your knowledge no later than October 1987 and therefore time ran against you from that moment and that is the critical point that your case foundered on, both before Justice Newman and before the Court of Appeal. Now, we do not sit here as just another Court of Appeal. We can only hear about 70 cases a year and there has to be some important point of law involved and unfortunately, it seems to me, that your case concerns questions of fact which have been found against you. So, that being so, it makes it very difficult to grant you special leave to appeal.

MR MANN: Everywhere we went, including the Ombudsman, we have been faced by the fact that they had not given any material to Mr Rubinstein.

McHUGH J: Well, I understand that but - - -

MR MANN: I went to the Ombudsman and he said you have not got a case because there is no evidence that the public servants have given Mr Rubinstein - and they have done nothing wrong.

McHUGH J: I understand that, but, you see, what has happened is that you commenced your action out of time and it was statute barred by the Limitation Act of New South Wales. But, in certain circumstances, that can be extended, but it cannot be extended further than when you became aware of your cause of action, and according to the courts below, you became aware in October 1987. Now, you argue that you did not really become aware until June 1990.

MR MANN: Correct, your Honour.

McHUGH J: But the court found that against you. That is a question of fact. It is not the sort of case that we take on for special leave.

MR MANN: But have not I been denied sort of common justice in that they acted contrary to the Act? They tell me that I could not have the documents I required, yet they gave them to the other side.

McHUGH J: Well, I understand that, Mr Mann, but the point is that you had your time to bring the action and you did not bring it, and the defendant has pleaded the Limitation Act on you.

MR MANN: But I was told that I could not bring any action by the Ombudsman.

McHUGH J: Well, I do not want to encourage litigation, but you may have an action against whoever gave you advice if it was incorrect and negligent, but your problem is that you became aware of this breach of confidence as a result of Mr Rubinstein's affidavit being served on you.

MR MANN: But they all denied that they had given him any documents.

McHUGH J: I know that. They may have denied it, but the fact is that Rubinstein's affidavit said so and, after all, you put on your affidavit of discovery within five days, did you not?

MR MANN: My solicitor did - - -

McHUGH J: Your solicitor did, yes.

MR MANN: - - - because Mr Rubinstein then listed what he wanted. Prior to that date it had been handled by two of my solicitors and he never said what he wanted.

McHUGH J: Well, you do not seem to have had much luck with your solicitors. One of them you have got a substantial sum - how much was it, 15,000?

MR MANN: No, [sterling]40,000.

McHUGH J: [sterling]40,000 damages.

MR MANN: He became mentally ill.

McHUGH J: Yes.

MR MANN: I was surrounded by mentally ill people. But we were getting advice from Canberra - and the Ombudsman himself was a lawyer and both my wife and I were called down there for a conference with him and he says, "Look, you are wasting your time taking any action. The Commonwealth and State haven't done anything unlawful." Now, when in 1990 I got hold of documents, which were subsequently ruled to be privileged, there was a whole list of the people he had seen. Now, I think that is completely unfair. He was given one preference by lawyers in Canberra and public servants and I was said, "No, you can't have them." Now, that to me is denying me a fair go.

Now, the Ombudsman, when he did his investigation, said, "Yes, you have been treated unfairly. Yes, there has been breaches of the Privacy Act." And he said, "We will get the people to apologise to you." And they did, but that did not get my house or farm back. They just said, "We are sorry." Now, what - - -

McHUGH J: Well, there were questions as to whether or not there was what the lawyers call a causal connection between whatever damage you suffered in your costs action and so on, but the fact is that you are out of time, and that is the problem that you have got. You were out of time when you commenced your action.

MR MANN: But we did not know who to sue. They said they had not done it. They denied any knowledge of Mr Rubinstein - we have got that in writing - and they said he must have got the documents somewhere else. I then got my MP to ask questions in Parliament and then, when we got the documents from London, they all ran for cover and started making up numerous excuses as to why they had given Mr Rubinstein the documents, and the big thing that they did was that Rubinstein told them a lie. He said that we had been trying to hide documents. Now, this was wrong, because he had not done the discovery in London. He was working in America and he did not take the case over until 1986.

Now, discovery had been done properly. We had done our best. The Master over there accepted we had finished discovery and then Rubinstein got hold of Dr Eccott and took a statement from him, came to Canberra, told a pack of lies, which is documented, and they then gave him the documents saying, "Oh, yes, Mr Rubinstein, here you are. Mr Mann has been a naughty boy." And I had not. So I think that is grossly unfair. So what I am asking is, can we have a new trial, now we know who has been doing naughty things, and since these proceedings Mr Rubinstein has not been terminated by his firm and they have settled our claim and my wife's claim in London and it appears that they have terminated his instructions.

McHUGH J: Yes, but that is a matter for the English courts. We have got nothing to do with - - -

MR MANN: No, but it is what he did here, sir.

McHUGH J: Well, yes, I know, but you are seeking to sue the Commonwealth and the States and you did sue them and the judge did not have to get to the merits of the case, because he held that your action was statute barred, and that is your problem. The law says you had to bring your action within a certain period of time, that is to say six years. You did not bring it within six years. In certain circumstances you can get an extension of time if you can show that you did not know about the cause of action until a particular date, and the courts below have all held that you knew that you had a potential cause of action on 29 October 1987.

MR MANN: Yes, but is there not a defence, sir, if they have acted illegally, concealed matters? That is what the Ombudsman found.

McHUGH J: Well, that is so, but it was held in the Court of Appeal that there was no fraud, but Justice Handley said, well, even if there was fraud, nevertheless you still knew about it, the concealment came to an end on 29 October 1987. So even assuming in your favour that there had been concealed fraud on the part of the Commonwealth and New South Wales, your knowledge brought that to an end in October 1987.

MR MANN: Well, how could we sue anybody if we did not know who to sue? They all said they had not done it.

McHUGH J: Well, you sued the Commonwealth and the State. You ultimately sued them and the law is that you could have sued them at any time after 29 October 1987.

MR MANN: No, we sued them when we got the facts, and that was not until 1990, and then I got the list of 100 page document showing who had helped him and he had acted dishonestly and they contravened the Privacy Act by giving him the documents. So I feel, sir, that it is grossly unfair that he was helped and we were rubbished.

McHUGH J: Mr Mann, this Court does not sit here to review questions of fact which are found by the lower courts. We only decide important questions of law and your case turned on questions of fact. You had a trial before Justice Newman and the Court of Appeal. They found the facts against you. We just cannot take on factual cases. There are hundreds of thousands of cases every year heard in this country and this Court can only hear about 70 of them, including constitutional cases about the powers of government, criminal appeals and other matters of national importance.

MR MANN: Well, where can I go, sir?

McHUGH J: Well, I am afraid you have reached the end of the line so far as the law courts are concerned. Sad though it is from your point of view, the fact is that you were out of time and that is what the law says, that you have got six years.

MR MANN: Yes, but there were offences committed by those people.

McHUGH J: Well, whether they be offences or not, the fact is that you still have to bring your action within six years, I am sorry, Mr Mann.

MR MANN: Can we have leave to have a go at the Ombudsman?

McHUGH J: Well, we do not give you leave. I mean, you will have to get your own advice or act on your own advice, as to whether you have got any cause of action against anybody who may have misled you, owed you a duty and misled you. That is a matter upon which you will have to either get advice or make your own decision, but it is not a matter for this Court. We do not give - - -

MR MANN: We cannot get Legal Aid, sir.

McHUGH J: Well, that may be because the Legal Aid people do not think you have got a case. But, in any event, you will just have to work it out somehow or other, Mr Mann, but we have got no power to give leave to proceed against the Ombudsman. It is nothing to do with us.

MR MANN: Is it not a miscarriage of justice?

McHUGH J: Well, it is not a miscarriage of justice if the law has been properly applied, and that is the point. The Court of Appeal said you have got six years to sue and you did not sue. That is the beginning and end of it.

MR MANN: Because we were told we had not got a case by a solicitor and officials in Canberra.

McHUGH J: Yes. Now, Mr Mann, we have considered your submissions. I do not think we are advancing the argument any more. Is there anything further that you wanted to put?

MR MANN: No, sir. Thank you very much for your help.

McHUGH J: Yes, thank you. The Court need not hear you, Mr Aldridge or Ms Hartstein.

The applicant in this matter seeks special leave to appeal from a decision of the New South Wales Court of Appeal consisting of Justices Handley, Powell and Stein. The decision of the Court of Appeal dismissed an appeal from a decision of Justice Newman. The applicant had brought proceedings in the Supreme Court of New South Wales seeking damages from the first and second respondents for breach of duty of confidence, breach of contract and negligence and misrepresentation on the part of both respondents and, as against the Commonwealth, the first respondent, misfeasance in public office.

The proceedings were brought out of time. Justice Newman dismissed them because of the Limitation Act (NSW), which required the proceedings to be brought within six years. The Court of Appeal upheld his Honour's judgment. In the Court of Appeal, Justice Handley gave the leading judgment.

In this application, the applicant relies on four grounds to support the grant of special leave. The first relates to an alleged error by Justice Handley in stating that the matter in issue was not in excess of $100,000. While his Honour did refer to an issue concerning the competency of the appeal, the amount of the matter in issue was assumed in the applicant's favour. The appeal was treated as competent. Accordingly, the first ground of the written application cannot succeed.

The second ground alleges error on the part of Justice Handley in making the factual finding that the applicant became aware of the causes of action no later than 29 October 1987 when the applicant was served with an affidavit by a Mr Rubinstein. The applicant claims that as officials of both respondents denied that Mr Rubinstein had visited them and inspected documents until after the applicant's libel action was determined in June 1990 in the High Court of Justice in England, the limitation period under the New South Wales Act only began to run from June 1990. This ground raises questions of fact, not principle, and was determined in a manner unfavourable to the applicant. There is no allegation that the New South Wales Court of Appeal wrongly applied the law. The claim is that they applied the limitation period from the wrong date. That was a question of fact and its correctness is not a matter that would justify the grant of special leave to appeal to this Court.

The third ground of the application alleges that Justice Handley erred in holding that there was no evidence that the relevant officials of the Commonwealth and State were guilty of fraudulent concealment in the sense referred to by Acting Chief Justice Mahoney in Seymour v Seymour (1996) 40 NSWLR 358 at 371. The applicant claims in his written application that there is ample evidence of such fraud. Once again, this ground seeks to review factual findings made against the applicant.

There is no claim that the Court of Appeal wrongly applied Seymour or that there is any need for this Court to review that decision. The Court of Appeal, in our opinion, was correct in applying the dicta of Acting Chief Justice Mahoney and did so without error. In any event, the court held that, even if there was fraud in the relevant sense, the applicant was aware of what the Commonwealth and the States had done by 29 October 1987. Accordingly, ground three provides no basis for the grant of special leave to appeal.

The fourth ground is really a minor ground. It alleges that Justice Powell, who was one of the three judges of appeal, erred in concluding that the applicant never had a cause of action, as the information disclosed was not confidential information of the applicant. Justice Powell did so without giving detailed reasons. But as any cause of action that the applicant may have is statute barred, this statement of Justice Powell provides no basis for the grant of special leave to appeal. Any appeal would be futile given the fact that it is statute barred, even if his Honour erred in saying that the applicant had no cause of action.

In our view, the decision of the New South Wales Court of Appeal was plainly correct. Special leave must be refused with costs.

AT 3.10 PM THE MATTER WAS CONCLUDED