Falamaki v Wollongong City Council S89/2001 [2002] HCATrans 460 (17 September 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

GLEESON CJ

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 SEPTEMBER 2002, AT 2.29 PM

Copyright in the High Court of Australia

DR M. FALAMAKI appeared in person.

MR N.J. MULLANY: Your Honours, at 12.15 yesterday my instructor received a telephone call terminating both his and my instructions. They were terminated that morning by facsimile and for those reasons I seek leave to withdraw. (instructed by Hilton King)

GLEESON CJ: Yes, you have that leave. Thank you, Mr Mullany.

MR C.W. McEWEN: If it please your Honours, I appear for the respondent with my learned friend, MR A.M. PICKLES. (instructed by Peedoms Lawyers)

GLEESON CJ: Dr Falamaki.

DR FALAMAKI: Yes.

GLEESON CJ: Go ahead with your argument.

DR FALAMAKI: I seek leave of the Court to start in the name of Allah, the beneficent, the merciful. I wish, if I can get the leave of the Court, to tender this document as exhibit in relation to the request that I am going to ask from the Court to adjourn the hearing until I get a legal representative for this case.

GLEESON CJ: It has already been adjourned once and you got a legal representative and apparently you have withdrawn their instructions.

DR FALAMAKI: Yes, your Honour.

GLEESON CJ: Can you explain why that is?

DR FALAMAKI: Yes. This document that I was going to tender is supporting the reasons and that why this situation happened and I appreciate if I can get leave of the Court to tender this document.

GLEESON CJ: Do you have any objection to that, Mr McEwen?

MR McEWEN: Your Honour, I have not seen the document.

DR FALAMAKI: This is the document. That is the correspondence that we had between the parties.

GLEESON CJ: Why do you not, while Mr McEwen is looking at that and deciding his attitude, hand that document up, we could be reading it for ourselves. Could you hand it, please? We will just have a quick look. Well, this is correspondence between you and your former legal advisers.

DR FALAMAKI: Correct, yes, your Honour.

GLEESON CJ: What is the point you seek to make from it?

DR FALAMAKI: The reasons that I cannot use the services of the legal representative that was introduced to me on 15 August last by the Registry of the High Court, given the fact that the directions of their Honours were made on 21 June 2002 and then after a lot of phone calls that was made to the Registry of the New South Wales High Court and to the one in Canberra the earliest that I got some name was 4.00 pm on 15 August nominating a barrister practising in Perth, 4,000 kilometres away from here.

Then I immediately communicated with that gentleman and the supporting documents or the material that I was going to tender contains some correspondence between myself, the solicitors and the barristers and I do not know if I can go on or - - -

GLEESON CJ: I asked you what is the point you seek to make from this correspondence. What does the correspondence show that justifies the granting of an adjournment?

DR FALAMAKI: Your Honour, if you do not mind, I just put that in terms of a few questions and then the facts are before your Honour, that is the correspondence, the questions. I am a layperson in law, first I put the questions that were raised to me and then the argument, if you do not mind. The first question was that why the Registry of High Court almost after two months inform me about the name of the barrister and then it was at a time that we had less than one month to the hearing date, which was 17 September.

Why should a barrister from Perth to be nominated? Why should the barrister tell me at the beginning in his letter of 16 August that there is an arguable point concerning apprehended bias and then on 14 September I learned that he says the chances are slim. Why should Mr Mullany not letting me to visit his work or the materials that he prepared to file in the Court before filing in the Court? This is referred to in my letter of 28 August 2002. Why should Mr Mullany does not accept any comment about the nature of his documents? Why should Mr Mullany refuse to refer to misleading actions of his Honour Justice Talbot during the courses of hearing that we had on 1998? That is page 19, last paragraph, and page 20, third paragraph, of the material that I tendered.

By only providing this honourable Court with the transcripts of the hearing that happened after the February 1999, why should the main core of this court case to be ignored by the lawyers? The main core was the occasion - the main core of this court case was the occasion that on 1997 Wollongong Council produced false documents with the assistance of one of its consultants, Thomas, and took the matter to the court and then all these litigation were started while it became clear to the trial judge - in my opinion - it became clear to the trial judge in that occasion that those materials were constructed and they were not suggesting what was going on.

GLEESON CJ: Well, if you will just excuse me, we will hear what Mr McEwen's attitude is to this before we hear you further.

DR FALAMAKI: Right.

GLEESON CJ: What is your attitude, Mr McEwen?

MR McEWEN: Your Honour, on instructions, we oppose the application. This matter was before Justice Gummow and Justice McHugh on 21 June of this year, as your Honour is probably well aware. Their Honours granted an adjournment and extended a particular latitude to the applicant, inviting the Bar Association to see if a barrister could be found to put his application in a form which would be attractive to the Court.

GLEESON CJ: Mr McEwen, what is the current state of this litigation?

MR McEWEN: The current state of this litigation, your Honour, is that the orders of Justice Talbot previously made have not been complied with in that the structure has not been remediated.

GLEESON CJ: But the orders stand, do they not, unless set aside?

MR McEWEN: That is so, your Honour, yes.

GLEESON CJ: Subject to the question of costs, what does it matter to your client if this matter never comes on?

MR McEWEN: Well, what it matters, your Honour, is that there is on the land in question an excavated portion of it, a substantially excavated portion of it, which the Council maintains, by virtue of the orders of Mr Justice Talbot, is entitled to have remediated.

GLEESON CJ: And the Council may be right. Those orders - I am perhaps not making myself clear. If Dr Falamaki keeps getting the case adjourned and adjourned and adjourned for two or three years, what difference does that make to the orders that presently stand?

MR McEWEN: In that respect, your Honour, it makes no difference, except that certain times were imposed by his Honour and then the Court of Appeal within which the work was to take place.

GLEESON CJ: But those times still stand, do they not?

MR McEWEN: They have passed, those times.

GLEESON CJ: And the fact that there is a pending application before this Court does not affect anything, does it?

MR McEWEN: No, it certainly does not work a stay or matters such as that, your Honour, no.

GLEESON CJ: So that subject to the question of costs, if these proceedings are dragged out, for whatever reason, that does not do Dr Falamaki any good, does it?

MR McEWEN: No, it does not, but nor does it do landowners who own land behind the subject land any - - -

GLEESON CJ: But I do not understand - - -

MR McEWEN: Yes, your Honour.

GLEESON CJ: - - - what is there to stop your client enforcing the orders?

MR McEWEN: There is nothing in those terms to stop my client enforcing the orders, your Honour.

GLEESON CJ: Unless the pending application to this Court operates as some restraint.

GAUDRON J: Except is not the situation this - I am sorry to interrupt, but is not the order that - the order for demolition, is it - - -

MR McEWEN: Yes, your Honour.

GAUDRON J: - - - is not to take effect until further order?

MR McEWEN: That is so.

GAUDRON J: So the situation is that unless you go back to the Land and Environment Court to have that altered or unless Dr Falamaki fixes up the -does what he was ordered to do, I suppose it just sits there. Is it said to be dangerous?

MR McEWEN: That has been the Council's case. I hesitate to adopt the word "dangerous" in fairness to Dr Falamaki, but I do submit to you that the whole basis of the Council's case is that the land was unstable by reason of his intervention and the orders, if complied with, would render that land stable.

GLEESON CJ: But is it the position that you want to bring this matter to finality - - -

MR McEWEN: Yes, your Honour, it is.

GLEESON CJ: - - - because unless and until you do that, you fear you cannot get another order or a further order from the Land and Environment Court? Is that the position?

MR McEWEN: I cannot put to your Honour that I fear I cannot get another order. I can put to your Honour that the utility of it would be limited in that the orders require certain works to be done by the appellant - or the applicant before you and in terms of the orders which might be imposed by reason of his Honour coming to the conclusion that he should give no further time, the order which would be made would be that the building partly constructed be demolished. That was the order which was first made by his Honour Justice Talbot and the operation of which was suspended. That is to be found on page 49 of the application book, your Honour.

GLEESON CJ: All right, thank you very much. Yes, Dr Falamaki.

DR FALAMAKI: I seek leave of the Court to make one comment in relation to one of the statements of my friend. My friend mentioned about the danger and - - -

GAUDRON J: About the what?

DR FALAMAKI: About the danger in the site.

GAUDRON J: No, I mentioned that.

DR FALAMAKI: The fact is that on 1997 when we went before his Honour Justice Bignold in the Land and Environment Court it was almost 41/2 months after the excavation and then the same issue was raised by the Council that the excavation will collapse with the next rain and his Honour mention that it is 41/2 months and nothing has happened and so far we have about five years since then and nothing has happened, although we had very serious flood in 1998, and the documents which were produced by Australian Geotechnical Society on year 2000 supports the fact that the procedure that I followed for construction on 1996 - and it was approved by the Council - was valid procedure and, in other words, the same association was suggesting that the practitioners should cease following the procedure which was common practice on year 1996 because of its danger. So, I mean, I am punished by this court procedure for not using something which was wrong.

GAUDRON J: No, you were not. The question was whether you had complied with the conditions. That is an entirely different question. I would like to ask a question, Dr Falamaki. Do you not want to get on and build this house? The orders of Justice Talbot have stood there giving you a means of getting on and completing the house and you have apparently not availed yourself of the benefit of the orders. A number of those orders, or a very considerable aspect of them, were made for your benefit.

DR FALAMAKI: Your Honour, my submission is that the matter of justice is the issue and I believe a court is a place that its practice is to establish that justice - - -

GAUDRON J: Well, it is justice according to law - according to law. It is not your idea of justice. It is the justice according to law. The first rule of Australian justice is that the law must be obeyed.

DR FALAMAKI: Yes, your Honour, and I did not - - -

GAUDRON J: And that includes court orders unless and until set aside.

DR FALAMAKI: Yes, your Honour, and I did not breach any court orders. I mean, I did comply with all court orders and so far - I mean, there is no document suggesting that - - -

GAUDRON J: Well, I have perhaps distracted you.

GLEESON CJ: Dr Falamaki, is there anything else you want to say as to why we should adjourn this application?

DR FALAMAKI: Yes, your Honour. I had a few more lines to take up before - - -

GLEESON CJ: Yes.

DR FALAMAKI: Why should Mr Mullany refuse to refer to the misleading actions of his Honour Justice Talbot during 1998 and the other activities of his Honour that support real bias rather than concentrating on the apprehended bias which was mentioned in his documents? Why should the main core of this court case to be ignored by the lawyers and even in the judgment that I received from the Supreme Court on 4 April 2001? The main core of this action which was during the period of April 1997 to June 1998 was completely excluded in that judgment and it appears that the above actions of the Registry of High Court by not introducing the barrister on time and Mr Mullany is in line with the actions of the previous lawyers to cover the fact, especially the facts that happened during April 1997 to June 1998. For that I refer to the affidavit that I filed in the High Court in support of my notice of motion.

GAUDRON J: So you wish to allege actual bias? Is that what you are saying?

DR FALAMAKI: Exactly, and that is the point, yes, because - - -

GAUDRON J: And not apprehended bias?

DR FALAMAKI: I am a layperson in law but I - - -

GAUDRON J: Well, it does not matter. You are going to have to answer the questions, Dr Falamaki.

DR FALAMAKI: Yes.

GAUDRON J: Although you are a layperson, you have seen fit to ignore your lawyer's advice, to sack him because you did not like it. You are at least claiming to have enough legal knowledge to know that - to sack your lawyer. Now, are you claiming actual bias?

DR FALAMAKI: Your Honour, my position is that I believe I am entitled to have a legal representative.

GAUDRON J: Well, you are not entitled to have a legal representative, per se. You had a legal representative. You have sacked him. Now, I have asked you a question: are you claiming actual bias on the part of Justice Talbot? I want to know what you are claiming because - - -

DR FALAMAKI: The answer to that question should be after consultation with a legal representative.

GAUDRON J: Well, you have had an opportunity to consult with your lawyer. Now, you have to - at some stage you have to come to grips with these issues and if you refuse to answer my questions, I cannot see why I should give you an opportunity to deal with - why I should give you an adjournment, if you will not even answer questions. I mean, one of the issues - - -

DR FALAMAKI: You see, as a layperson - - -

GAUDRON J: - - - in matters such as these is that there has to be an end to litigation. That is as much a rule of justice as any other rule.

DR FALAMAKI: Your Honour, I just as a layperson in law am suggesting that - I mean, justice is something inherent within all of us and according to that something that Allah has put to me, knowing what is wrong and what is right, I learned that Council on the occasion - - -

GAUDRON J: Well, what has Allah told you about Justice Talbot that you wish to rely on in this Court?

DR FALAMAKI: That is the issue of doing right or wrong and what I learned from his Honour Justice Talbot in the course of action that he had in June 1998 was that he was suggesting something that would happen and then he changed his words and he did not act upon his suggestion, and I can bring your attention to his action, if you do not mind, about his directions that he put in the court. I bring your attention to page 8 of my affidavit that was filed on the Court on 20 June 2002 and that is entitled "His Honour Justice Talbot". That is the third-last paragraph from bottom of the page.

GAUDRON J: What page?

DR FALAMAKI: It is page 8 of the affidavit.

GAUDRON J: Page 8 of the affidavit. What page of the application book?

DR FALAMAKI: It is an affidavit in support of my notice of motion dated 20 June 2002.

GAUDRON J: Well, I do not know that we have that.

DR FALAMAKI: That was filed in the High Court Registry.

GAUDRON J: We have the application books.

DR FALAMAKI: I can read it through, if you do not mind.

GAUDRON J: No, you should - - -

GLEESON CJ: Did you say 20 June 2002?

DR FALAMAKI: Yes, your Honour, yes.

GLEESON CJ: This is the one headed "AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION"?

DR FALAMAKI: Correct, yes.

GLEESON CJ: Yes.

DR FALAMAKI: Yes, on page 8 of the same affidavit item 1) "His Honour Justice Talbot" I put that:

During the hearing of 5 June 1998, His Honour Justice Talbot made an agreement with me that if I agree to produce a certificate by an impartial person that my building would not collapse, then he would dismiss the Council's application - - -

GLEESON CJ: Yes, well, we see that. Now, what has that got to do with your application for - we are dealing with your application for an adjournment. Is there anything further you want to say about that, as distinct from the merits of the case?

DR FALAMAKI: Right. What I can do is to bring the attention of this honourable Court to what I learned from the sayings of his Honour Justice McHugh on paragraph 25 of the transcripts of the last hearing saying that:

you are not a lawyer and I am not sure that you have done yourself justice in this particular case.

It was my impression that the reason that his Honour assigned or advised me to have a legal representative - - -

GLEESON CJ: Yes, he did. All right, thank you, Dr Falamaki.

DR FALAMAKI: Yes. I wanted just to add one thing.

GLEESON CJ: Well, you go ahead and add one thing now. We cannot listen to this adjournment application all afternoon.

DR FALAMAKI: Right, yes. Actually what I was trying to say is that it was my impression that I was not practising justice by not having a legal representative, so I was waiting for two months after that particular date, 21 June 2002, to hear from the Registry of the High Court for a barrister and then immediately after I learned that the barrister 4,000 kilometres away is going to act, I complied with all his requirements, the money that he wanted to be deposited in his account and all the information that he requested for, and then I was surprised why he is not letting me - or eliminating this right of me to have a look through the documents that he is going to file on my behalf in the Court.

Then the second surprise was that when I asked him that in his oral presentation in the Court through the solicitor he also mentions about these issues, that the actions of his Honour Justice Talbot was misleading because he promises something, he makes an agreement with me in the court and then he does not fulfil that and many other examples, that some of them have been listed as the examples of my request to be tried by a jury and then he completely ignored all these things and decided to go ahead - - -

GAUDRON J: Yes. Well, we have heard all that before.

GLEESON CJ: Yes, thank you, Dr Falamaki.

DR FALAMAKI: And the last thing is that I believe that all the previous cases are void because in none of the occasion I gave consent that my case to be heard by - - -

GLEESON CJ: We are dealing with the adjournment application. Take a seat, thanks, Dr Falamaki.

DR FALAMAKI: All right.

GLEESON CJ: When this matter was previously before the Court it was adjourned to enable the applicant to obtain legal advice. Solicitors and counsel agreed to represent the applicant. The applicant takes some point about the fact that counsel who agreed to represent him is based in Western Australia. The counsel in question, who appeared before us today to announce his appearance and then withdraw in accordance with his instructions, is an experienced and competent counsel who appears, not only in Western Australia, but in New South Wales and in Canberra, and who appears regularly before this Court.

Within the last few days the applicant withdrew the instructions of his solicitor and counsel. The clear inference is that he withdrew those instructions because he was not content with the advice he received from them. The applicant now seeks a further adjournment in order to obtain other legal advice. The adjournment is refused.

Go ahead with your application, Dr Falamaki.

DR FALAMAKI: Do I have 20 minutes?

GLEESON CJ: You do.

DR FALAMAKI: In terms of my application, I respectfully bring the attention of the Court to Petition of Right 1628 Part III in which it was said that and whereas also by the statutes called the Great Charter of Liberties of England it is declared and enacted that:

No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or his free Customs, or be outlawed, or exiled, or any otherwise destroyed . . . but by the lawful Judgement of his Peers, or by the Law of the Land.

I also bring the attention of this honourable Court to Act No 49 1900 common law practice section 3(1) in which it is saying that:

In any action by consent of both parties the whole or any one or more of the issues of fact in question may be tried, or the amount of any damages or compensation may be assessed by a Judge without a jury.

And it is my application, and it was my application previously, that this matter to be heard with a jury because a court, in my opinion, consist of judge and jury. I also bring the attention of Court to Magna Charta 1225 CAP XXIX in which it is saying that:

No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful Judgement of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Apart from that, my respectful application is that the previous hearing which was done without my consent are void and I deserve a proper hearing in a court consist of judge and jury. Also I bring the attention of this honourable Court to the International Covenant on Civil and Political Rights which entered into force on 23 March 1976 and entered into force for Australia on 13 November 1980 and in article 14 of that international covenant it is saying that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Then in paragraph (b) of article 14 of the same document it is suggesting that:

To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing -

and then in paragraph (d) of the same article 14 it is saying that:

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it -

and then I respectfully bring the attention of this honourable Court to what I extracted from law dictionary in relation to the meaning of word "bias" which is equal to the meaning of the word "natural justice", and in relation to natural justice it is saying that this means that any decision, however fair it may seem, is invalid if made by a person with any financial or other interests in the outcome or any known bias that might have affected his impartiality.

Now, I have already brought the attention of this honourable Court to the issue of why I did not agree to get the services of Mr Mullany, although their Honours are of the view that he is a competent person, but my excuse is that he did not have the opportunity to visit all the 20 volumes of documents that I had in this court case. He selected part of them and he was not even willing to listen to my comments and he then excluding the right from me to have a look through those documents that he was preparing on my behalf to file in the Court and then did not give any value to my comments by referring to the issue of bias of his Honour Justice Talbot on the basis of the fact which is the core of the issue.

I mean, I do not understand when somebody is acting against natural justice, against somebody and his activities during the course of action supports that person is not doing according to natural justice, then a barrister or my counsel tries to ignore all those facts and concentrate on the issue of apprehended bias, whereas why he did not declare that he had so much co-operation with one party prior to sitting on the Bench and listening to those parties.

Many paragraphs that are written in both the documents of Mr Mullany and the documents that were filed by my friend as a response it were talking about fair-minded lay observer, that this impartiality or natural justice has to be observed by a fair-minded lay observer, which in my opinion it is a jury. So the activities of a judge according to this has to be challenged by a jury, which is a group of 12 people of fair-minded observers rather than another judge who might be a friend of the previous judge and cannot be a fair-minded person.

Also Mr Mullany in his documents in many occasions referred to the word "fictitious" in many paragraphs of his arguments. For example, I bring your attention to the summary of arguments filed by Mr Mullany in paragraph 10, paragraph 11 and in paragraph 21. Many occasions when he was talking about a fair observer, he was referring to the word "fictitious", the fair-minded fictitious lay observer, which this cannot be correct because "fictitious" means that not true and there is no place in the court of justice for something fictitious. That has to be - I mean, I was looking through his work and I was just concerned about the presentation and he was not giving me even the opportunity to discuss about that and it was only last Saturday that I learned through my solicitor that his opinion has not changed. Originally he was of the opinion that - it is saying that:

in my opinion there is an arguable point concerning apprehended bias and the need to ensure a fair trial -

and that was the page 1 paragraph 2 of the exhibit that I tendered to the Court and then on page 21 of the same document, third paragraph, he is saying that - or the solicitor on behalf of Mr Mullany is saying that:

Mr. Mullany has confirmed that he has previously advised you that the chances of you obtaining special leave to appeal to the High Court are "slim".

May I ask how many more minutes I have to express myself?

GLEESON CJ: Seven.

DR FALAMAKI: Right. Within this seven minutes I appreciate if I just bring the attention of this honourable Court to just a very short summary of this case and then leave - I mean, leave the case to your Honours to decide, but it is my impression that justice was violated in this court case because in 1997 we made an agreement with the Council that - it was in May 1997 after we had a hearing before his Honour Justice Bignold and in that hearing the impression of his Honour was that I was doing the right thing. He did not make orders to the - I mean, he did not give weight to the interlocutory orders that Council was asking. There was about four interlocutory orders that Council was asking from the court and then persuaded me to accelerate the construction.

After that I spent another $75,000 to accelerate the construction and then Council in - what you call within a plan or whatever with one of its consultants named Thomas produced this document that the building that I designed will collapse and then they brought the matter again to the Land and Environment Court and they stopped my construction. Then when it was heard on June 1998 before his Honour Justice Talbot, he learned that calculation was useless and learned, when he made comment that it might be a plan by the Council - I mean, it is my impression from his writings that it might be a plan by Council and Thomas to stop my construction.

So, you see, this is a court of justice and justice was violated because it was a fraud, or whatever, that they had no right to stop my construction while I was doing the right thing and then his Honour on the occasion of 4 or 5 June in the court made an agreement with me that if I produced a certificate by an independent structural engineer then he will dismiss the Council's application and then he asked that it happens within three months and I did that. I produced the certificate. Then rather than dismissing - - -

GAUDRON J: But the certificate did not comply with the certificate that Justice Talbot had indicated to you that should be produced. Now, for some reason or another the engineer took a particular view of the issue and did not give the certificate that Justice Talbot had indicated to you was required.

DR FALAMAKI: Your Honour, I just bring your attention to the transcripts of that particular hearing, which was not filed by my friend, Mr Mullany, in the Court, but if you look through the transcripts of the same hearing, you will see that his Honour was very much concerned about the vocabularies or the words which were used in that certificate. For example, the certificate was saying that the design documents are enclosed and his Honour was concerned and was saying that why the word "attached" is not used and the material has to go back to the consultant it changes the certificate, that is, the word "enclosed" to be changed to the word "attached" and then send it back to the Council.

I mean, there was apart from the issue of bias, there was many occasions as I highlighted in my submissions to the Court of Appeal that his Honour was not impartial and the actions of his Honour in my view made me suspicious to do some research and investigation, why his Honour is doing like that, and then after the hearing of November 1998 I learned that he was appearing for the Council for a period and then I raised the issue on the occasion of February 1999 for his Honour to disqualify himself. He mentioned that he was the first choice barrister for the Council for 10 years from 1982, I believe, until 1992, which was the last appearance. That was four years before hearing - five years before the hearing of my case.

But the point is that, I mean, according to my understanding of natural justice, I mean, if a judge has to - if a judge is suggested to be impartial, he is not the person that decides himself whether he was biased or not. It is a different party who has to make that decision. So the matter went before their Honours in the Court of Appeal in the Supreme Court and their Honours also did not give that much weight to my application. I mean, I put 20 pages of executive summary of my submissions to their Honours and in part 3 of that submission I exclusively highlighted my main grounds of appeal, which were the issue of conspiracy or whatever or fraud in the Council case and the issue of the bias of his Honour and then not even a single word was mentioned in the judgment of their Honours on 1 April 2001 about the period of 1997, April 1997, that this litigation start, to June 1998 and then their Honours were saying that the main ground of my appeal was the issue of breach of condition 6, which was not the case.

GLEESON CJ: Yes, that is your time. Thank you, Dr Falamaki. We do not need to hear you, Mr McEwen.

The Court is of the view that no reason has been shown to doubt the correctness of the decision of the Court of Appeal or to apprehend that the interests of justice require a grant of special leave to appeal in this matter. The application is refused. The applicant must pay the respondent's costs.

AT 3.17 PM THE MATTER WAS CONCLUDED