Falamaki v Wollongong City Council S89/2001 [2002] HCATrans 306 (21 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S89 of 2001

B e t w e e n -

DR MASOOD FALAMAKI

Applicant

and

WOLLONGONG CITY COUNCIL

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2002, AT 3.14 PM

Copyright in the High Court of Australia

MR M. FALAMAKI appeared in person.

MR C.W. McEWEN: If it please your Honours, I appear for the respondent. (instructed by Peedoms Lawyers)

McHUGH J: Yes, Dr Falamaki.

MR FALAMAKI: I seek leave of the Court to start my pleading in the name of Allah, the Beneficent, the Merciful. Because English is my second language, if you allow me, I just read through the material that - - -

McHUGH J: First of all you have a motion for an adjournment.

MR FALAMAKI: Correct.

McHUGH J: You rely on, among other matters, that you have a hearing in the Supreme Court for five days.

MR FALAMAKI: Correct, yes.

McHUGH J: But, Dr Falamaki, even if you were successful in that, that does not help you in this particular appeal. Even if you won, that would be of no relevance in this particular application. One of the problems about this case is that, although you are a highly qualified engineer, you are not a lawyer and I am not sure that you have done yourself justice in this particular case. I know that you have tried to get assistance from the Law Society and the Bar Association, but one of your grounds of appeal in the Court of Appeal was that there was an apprehension of bias on the part of the trial judge. The Court of Appeal does not seem to have dealt with that ground at all. Is that right, Mr McEwen?

MR McEWEN: No, your Honour. In my respectful submission, the Court of Appeal did deal with it.

McHUGH J: Where was that dealt with?

MR McEWEN: I will take your Honours to it.

GUMMOW J: It was grounds 1 and 2 of the notice of appeal at page 51.

MR McEWEN: Yes, your Honour.

GUMMOW J: So you look at paragraphs 19 and 20 on page 58.

MR McEWEN: Yes, I am sorry, your Honours, I think.....cannot pick it up.

GUMMOW J: Then go over to paragraph 34.

McHUGH J: Paragraph 31 in the last sentence:

Dr Falamaki also challenged the Judge's decision refusing to disqualify himself, but failed to establish any error of fact or principle in this part of the decision.

MR McEWEN: Yes, that is the matter I was looking for, your Honour, thank you. Then his Honour went on to deal with the question of costs.

McHUGH J: Dr Falamaki, carry on. What were you wanting to read? What is it about?

MR FALAMAKI: Actually, I can give you a copy of the material that I prepared for the Court last night. It is only about a few minutes, if I can read for the Court, but I just put my thoughts together and - - -

GUMMOW J: We can read it to ourselves; it might be easier.

McHUGH J: Dr Falamaki, the problem is that it is very difficult to get special leave to appeal in this Court and we are not a court of appeal. Well, we are a court of appeal, but ordinarily we only take on very few cases. There are hundreds of thousands of cases decided each year in Australia and we can only hear maybe 70 at the most. They are all important cases and the fact that a court may be wrong is not usually a ground for granting leave. We just cannot hear every case where it is alleged that a court is wrong. There has to be something special about the case. I am worried about the fact that English is your second language, that you do not have legal representation. You just got that letter from the Bar Association, did you?

MR FALAMAKI: I approached all possible avenues - Legal Aid, Bar Association, Law Society - and the reply was in such a way - some of them were saying that "Because it is against a government body, legislation does not let us to participate in defending you", and some of them just did not produce any reasoning.

McHUGH J: Let me say this to you. It is very difficult to challenge a decision from an interlocutory order, and that is what these are. You may find it difficult, but these are interlocutory orders and they are very difficult to challenge. To successfully challenge it, you are going to need at the very least - we need to have a lot of the evidence before the judge, we would want to have the transcript of argument, the whole of it in the Court of Appeal, and the reasons and other matters. That costs money and if you lose, you would be ordered to pay the costs. It is a matter for you, but what I have in mind is adjourning these proceedings and instructing the Registrar of this Court to write to the Bar Association saying that this is a matter that in the view of Justice Gummow and myself, the Bar Association ought to see if they can make somebody available to look at your case for you. But you have to understand that if your case goes on and you lose, then you are going to be up for money.

MR FALAMAKI: Yes, your Honour.

McHUGH J: You might have been better off trying to get your house built rather than engaging in all this litigation.

MR FALAMAKI: Right, your Honour. I appreciate your advice and I look forward to get assistance from the Bar Association.

McHUGH J: Mr McEwen and the Council may oppose it, but I will just find out what he wants to do. Mr McEwen, special leave applications against discretionary judgments are very difficult to succeed in and in a sense the odds are against Dr Falamaki succeeding, but I am not confident that he has been able to do justice to his case. He knows that he runs the risk of costs, but I would certainly like to see his case prepared by a legal adviser, and so would Justice Gummow, so that we could be sure that there has been no miscarriage of justice in this particular case. I think it ought to be adjourned with a direction to the Registrar to write to the Bar Association saying that we think this case is at least worthy of investigation if somebody from the Bar would look at it. I am sure there are a lot of able junior barristers who would only be too happy to look at it. Do you have any submission about that?

MR McEWEN: I do not think it is appropriate that I should make any particular submission, your Honour. The only matter I should bring to your Honours' attention - and Dr Falamaki has far more knowledge of the facts than we do in relation to this, but it is apparent from the documents which form part of his affidavit that he has extensively sought assistance from persons including the Bar Association.

McHUGH J: I know.

GUMMOW J: We know about that.

McHUGH J: I have read his affidavits and I have seen the letter from this Court to him. Even refugees' institutions and so on have been - - -

MR McEWEN: It appears an opinion has been expressed by somebody who was requested to do what I apprehend your Honour may suggest should be done, so there has been an opinion expressed but, beyond that, I think it would be inappropriate for me to make a submission.

McHUGH J: Yes. Dr Falamaki, what we would propose to do - your case is on 2 September, is it not?

MR FALAMAKI: Second to the sixth.

McHUGH J: Second to 6 September. Well, Justice Gummow and I will be back here in Sydney on 17 September and we could hear the matter then. So, we can adjourn the matter until 17 September. I will give a direction to the Registrar to write to the Bar Association. You have to understand that a barrister may say you have no case, in which case you will have to do the case yourself. You have to appreciate that you run the risk of a costs order if you lose.

MR FALAMAKI: Yes, your Honour.

McHUGH J: In those circumstances, unless there is something further that you would want to say, I will adjourn this matter until 17 September, to be listed before Justice Gummow and myself and perhaps a third Judge, but certainly the two of us. I direct the Registrar to write to the New South Wales Bar Association and indicate that this matter is pending in the High Court and that Justice Gummow and I think that it is a matter that it maybe in the interests of justice if a member of the Bar Association was prepared to have a look at it to see whether there is an arguable case for the grant of special leave.

MR FALAMAKI: Thank you, your Honour.

McHUGH J: Anything further, Dr Falamaki

MR FALAMAKI: No, thank you.

AT 3.29 PM THE MATTER WAS ADJOURNED

UNTIL TUESDAY, 17 SEPTEMBER 2002