Goldberg v Jefferson Ford Pty Ltd M102/2000 [2002] HCATrans 27 (15 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M102 of 2000

B e t w e e n -

DAVID GOLDBERG

Applicant

and

JEFFERSON FORD PTY LTD

Respondent

Application for special leave to appeal

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 12.34 PM

Copyright in the High Court of Australia

MR D. GOLDBERG appeared in person.

HAYNE J: Jefferson Ford not having appeared, Mr Goldberg.

MR GOLDBERG: That is correct. They indicated that they will not appear.

HAYNE J: Yes. Now, you understand do you, Mr Goldberg, that you have 20 minutes?

MR GOLDBERG: Yes, I have. It is going to be a short matter, it is just a simple matter, relates to the order. It is not something complicated and if I could start it now - it is a simple matter of discrimination by the exercise of judicial act on the appellant or any.....by the Court of Appeal in Melbourne. The central issue of this application is an order which Justice Tadgell made and imposed on the appellant on 1 September 2000. It is quite clear that the same Court of Appeal on 3 March 2000, compromising by different judges - in this case it was Justice Buchanan and Justice Chernov - dismissed my application based on the fact that I was sick and this litigation should be stopped.

It was not actually a litigation to be stopped, but the payment of money by me who should be stopped to such time as I will recover from my sickness. I have two operation and I was scheduled to have a third one. Litigation was started at the time when I was sick, so there was nothing really which could surprise the other party. Justice Buchanan, which was presiding judge, told me that the fact that I was sick was not sufficient fact for making.....and he dismissed my application. There was also - I indicated there was no prejudice suffered to other party because payment had been made on a systematic basis. So that was the situation and I continue to make those payments.

However, on 1 September the application was brought before Justice Tadgell and Justice Batt in the Court of Appeal on behalf of the respondent and Justice Tadgell submitted, conducted and decided the case because counsel representing the respondent, Mr Klooger, had said nothing. He told me that because I am sick that it is not sufficient not to grant an application for that apart for me to pay certain amount of money - in this case it was $4,000 - within four weeks or my appeal will be dismissed without any hearing.

I indicated to Justice Tadgell at that time that I was in the same court on 3 March 2000, just six months earlier, and his Honour Justice Buchanan told me that because I am sick that is not sufficient reason to get the order I was asking for why there is - when other party ask for order for them on the same basis that I am sick, I will not be able to pay the cost in case I am losing the litigation, he is going to grant that order. He made no comment and there was some other submission which I made to him that perhaps the matter would be stayed, that a fair time would be given so I could pay the fine, but he did not consider that.

I have told him that, therefore, I am not equal before the courts and, basically, he discriminated against me because when it comes to an application made by me, there is a different outcome. Circumstances did not change and six months later when the other party brings the same application, on the same basis, on the same grounds, he is happy to give them an order, which simply is going to shut me out of the legal process. Justice Tadgell had not responded to that nor he gave reasons for his decision.

I have also told him that it is common law duty of the court to act fairly in making order which affects rights and interests and expectation of the appellant. He has made no comment to that and he granted the application to the respondent. It is also important perhaps to bring to attention to this Court some few months later, Justice Tadgell was removed from the bench and from the information available to me, one of the reasons was the reason that he made that discriminatory order against me.

On that basis, I ask this Court that this matter would be allowed to go further and this order will be removed so the matter can proceed to trial. I mean, I have got the right to be heard in a position to any adverse finding against me. In the circumstances, that is what I am asking this Court. There is nothing else I can add it to. Thank you.

HAYNE J: Thank you, Mr Goldberg.

No reason is given to doubt the correctness of the decision of the Court of Appeal. The constitutional arguments which the applicant seeks to advance are, in our view, untenable. Special leave to appeal is refused.

AT 12.41 PM THE MATTER WAS CONCLUDED