Sinanovic, In the matter of an application S299/2001 [2002] HCATrans 56 (22 February 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S298 and S299 of 2001

In the matter of -

Applications for leave to appeal by HAKIJA SINANOVIC against the refusal of leave to issue a proceeding

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 FEBRUARY 2002, AT 9.31 AM

Copyright in the High Court of Australia

MRS M.A. SINANOVIC: Good morning, your Honour. My name is Mrs Sinanovic and I seek leave to appear on behalf of the applicant, Hakija Sinanovic.

MR S.C. KAVANAGH: If your Honour pleases, Kavanagh is my name, from the New South Wales Director of Public Prosecutions Office. We are not a party to this application but we seek leave to appear for the purpose of assisting the Court, if that becomes necessary. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

HIS HONOUR: Yes, thank you very, Mr Kavanagh. Thank you for coming today. Mrs Sinanovic, first of all, I notice that in a document which Mr Kavanagh has prepared, setting out the chronology of the matter, there is a reference to the fact that you have sought leave to appeal against an order which I have made - this is in the Judge Stewart trial.

MRS SINANOVIC: Yes.

HIS HONOUR: There is nothing in that application that results in my being disqualified from hearing this application, is there?

MRS SINANOVIC: No, your Honour. I have no - - -

HIS HONOUR: So you do not ask that I be disqualified?

MRS SINANOVIC: No, no.

HIS HONOUR: Yes, very well.

MRS SINANOVIC: All I ask, your Honour, that according to the - - -

HIS HONOUR: Yes, I just wanted to clear that matter up first.

MRS SINANOVIC: Yes, yes.

HIS HONOUR: And you do not ask that?

MRS SINANOVIC: No.

HIS HONOUR: Now, the second matter is whether or not you should be allowed to appear for your husband.

MRS SINANOVIC: Yes.

HIS HONOUR: I understand that some members of the Court have declined to give you that leave to appear for your husband.

MRS SINANOVIC: On 20 November.

HIS HONOUR: What is the reason for your not - or your husband's not securing a legal practitioner to appear before the Court? It is usual for people to have a lawyer to appear.

MRS SINANOVIC: Yes. Yes, you are quite right.

HIS HONOUR: It protects them as much as the Court.

MRS SINANOVIC: Well, your Honour, there are so many matters. There are so many matters already on foot for Mr Sinanovic - - -

HIS HONOUR: That is true, but you can set out in summary form the history of the matter, as Mr Kavanagh has, and you can concentrate the mind of the lawyer for your husband on the particular matter that is before the Court and if you have a lawyer, that does help the Court and it also tends to help the litigant. So why have you not had a lawyer for your husband? Because I have to consider the question as to whether you should be given leave to appear for your husband, which apparently other members of the Court have refused to give.

MRS SINANOVIC: Your Honour, first of all, that is a difficult question in I have not had that particular question that you have put to me in discussion with Mr Sinanovic. Firstly, there has been a lot of impediment towards Mr Sinanovic and there is a very long - lengthy history.

HIS HONOUR: But that is not answering my question, which is - - -

MRS SINANOVIC: Well, it contributes. I am getting to the point of what your Honour has asked of me. Mr Sinanovic has been in custody since November 1997. It is a lengthy period of time. Now, within that period of time, your Honour, he has been outside from society. Now, being in prison is not the same position as being in the outside world. So he has lost six years. Now, six years time being in prison, within those six years there has been a number of factors and impediments and that is - Mr Kavanagh can either object to this, what I am submitting - over the period of time there has been a lot of impediment. There has been a lot of difficulty that the applicant has faced.

HIS HONOUR: But I do not see why this prevents you getting a lawyer for your husband.

MRS SINANOVIC: Well, your Honour - - -

HIS HONOUR: I mean, is the problem one of - - -

MRS SINANOVIC: - - - there are a number of issues. First of all - - -

HIS HONOUR: I know there are issues.

MRS SINANOVIC: There are a number of issues.

HIS HONOUR: But, Mrs Sinanovic, let us face the realities. You have not been very successful for your husband and if you had had a lawyer, maybe a lawyer would have been able to see a point and help the Court to see a point efficiently, effectively, quickly, economically, and that might have been more successful for your husband and that may have been behind the decision of the Justices to refuse you leave, that in the end you may not be doing your husband a favour by seeking leave to appear for him.

MRS SINANOVIC: With all due respect, I believe that depends on the person who makes that criticism of me. See, I understand what your Honour - - -

HIS HONOUR: I am just looking at the objective facts. I am just looking at the objective facts.

MRS SINANOVIC: Well, your Honour, I understand what happened on 20 November. I was criticised by putting the words that I am unqualified, I do not have an understanding of the legal principles. Now, I did take offence to that, though I did not publicly put me view across, but I did take that quite personally.

HIS HONOUR: But I think the word is a technical word. To say you are unqualified is merely meaning you do not have the qualifications of a legal practising certificate.

MRS SINANOVIC: Because I do not hold a certificate or a diploma that is recognised in this country. That is why that has been - and I am not disputing that. But, your Honour, if we were to go back, what I have been able to achieve goes in light of the face of later, now almost 13 years later saying I have not been able to assist Mr Sinanovic, whereby in the past I have been quite successful in succeeding and assisting Mr Sinanovic. I have now progressed to a point that maybe now I need to be stopped instead of allowing me to continue to proceed to assist Mr Sinanovic.

It would be unusual, right at this late stage, to say to me, "Well, Mrs Sinanovic, you have done no favour for Mr Sinanovic", when we step back a few years before, where, for example, three judges in the Court of Criminal Appeal on 19 May accepted that I am a benefit to Mr Sinanovic: one, the amount of knowledge I have in his cases, no lawyer can absorb that amount of knowledge - - -

HIS HONOUR: I do not know that that is - - -

MRS SINANOVIC: They are so - your Honour, they are very convoluted, his matters. It got to the - - -

HIS HONOUR: Yes. Anyway, just for the moment I will postpone the consideration of whether you should formally have leave and concentrate on the reason that you are advancing on your husband's behalf because I understand there may be an element of urgency. When will your husband be released?

MRS SINANOVIC: His earliest date of release is 2 June 2002.

HIS HONOUR: Yes.

MRS SINANOVIC: That is at the conclusion of the Luland sentence.

HIS HONOUR: Judge Luland.

MRS SINANOVIC: Yes, Judge Luland's sentence that was - it is due to commence on, if your Honour would bear with me - - -

MR KAVANAGH: 3 April.

MRS SINANOVIC: Yes, thank you, 3 April and date of release is actually 1 June. By 2 June he should be out. So the last day would be - I think they have - it is actually recorded on the warrant that his date of release is 1 June.

HIS HONOUR: Yes. Now, therefore, you say that unless your husband has the opportunity of having the special leave hearing before then, the reality is that he would not - he would be released before this Court would, in the ordinary course of business, get to the special leave hearing.

MRS SINANOVIC: Yes, it would.

HIS HONOUR: Now, the special leave application is from an order of a Justice of this Court, is that correct?

MRS SINANOVIC: Yes.

HIS HONOUR: Which order of the many orders is that?

MRS SINANOVIC: It was the order of Justice Gummow that was handed down - - -

HIS HONOUR: This is the order made on 10 December 2001?

MRS SINANOVIC: That is correct, your Honour, yes.

HIS HONOUR: And that, in turn, was an application to reopen an order made by Justices McHugh and Callinan on 27 November 2000, is that correct?

MRS SINANOVIC: That is correct, yes.

MR KAVANAGH: If your Honour pleases, I think the correct date of Justices Callinan and McHugh's decision was actually 20 November.

MRS SINANOVIC: Yes, that is correct.

HIS HONOUR: 20 November 2000?

MR KAVANAGH: 2001.

MRS SINANOVIC: 2001.

HIS HONOUR: 2001?

MR KAVANAGH: Yes.

HIS HONOUR: So the application to Justice Gummow was timely after that, is that correct?

MR KAVANAGH: That is correct, your Honour, yes.

HIS HONOUR: Does that relate to Judge Karpin - the trial before her Honour Judge Karpin?

MRS SINANOVIC: Both Judge Karpin and Judge Grogan. So it is - Judge Karpin is the High Court matter S260 of 2000, Judge Grogan is S302 of 2000. They were listed consecutively on 20 November, matters, I think, 9 and 10 on the list.

HIS HONOUR: Yes.

MRS SINANOVIC: A notice of motion was then filed in respect of S260 and S302. It was - - -

HIS HONOUR: Now, where are the reasons of Justices McHugh and Callinan in refusing special leave against the orders made?

MRS SINANOVIC: Actually, your Honour, you will find that in the summons to expedite the hearing in the affidavit. There is a copy of the actual transcript, and that is at annexure B in the sworn affidavit of - - -

HIS HONOUR: Are you referring to the summons which is before me now and the affidavit in support of that summons and an affidavit sworn by you of 25 January 2002? That is the affidavit?

MRS SINANOVIC: That is correct, your Honour, yes.

HIS HONOUR: Do you read that affidavit?

MRS SINANOVIC: I have read it, yes.

HIS HONOUR: And you formally place it before the Court?

MRS SINANOVIC: I do.

HIS HONOUR: Do you have any objection to that affidavit, apart from the objections to Mrs Sinanovic's participation in the proceedings? Is there any objection to the content?

MR KAVANAGH: No, there is not, your Honour.

HIS HONOUR: Do you wish to cross-examine Mrs Sinanovic?

MR KAVANAGH: No. No, your Honour.

HIS HONOUR: Yes, very well.

MRS SINANOVIC: The way the matter is actually set out, it is exactly the same affidavit listed under the two separate file numbers. So we are only dealing with the one contents of information but listed under the two separate file numbers, which is S298 and S299. So before your Honour you will have two separate affidavits, though the contents in the affidavit will be exactly the same.

HIS HONOUR: Yes, very well. Well, I will just have a look at the annexed transcript of the special leave hearing. Now, I notice that Justice McHugh said that he proposed to adjourn the application to enable your husband either to seek legal representation or to rely on his own submissions but he refused on behalf of himself and Justice Callinan to allow you to represent him, so that his Honour was not shutting the door. He was simply refusing you leave to present the case.

Why did you not take the course, given that decision, to, at least on this occasion, get a lawyer to appear for your husband so that in that way you could prosecute the application for special leave? That would have been a much more fruitful way to bring the matter to the Court than to seek to challenge the discretionary order which has been made refusing you leave to appeal against what is a discretionary ruling on a matter of practice which appellate courts rarely, if ever, interfere with in circumstances like this.

MRS SINANOVIC: Yes, it is quite unusual to have - - -

HIS HONOUR: It certainly is, and rather - - -

MRS SINANOVIC: - - - to have a judge make such orders.

HIS HONOUR: - - - unsuitable and rather inattentive to the interests of your husband.

MRS SINANOVIC: Your Honour - - -

HIS HONOUR: The right way to have gone about this would have been to have got a lawyer to appear and to have put whatever arguments you had, at least on this occasion, because the Court had not slammed the door on your husband. It had simply said it would not give you leave to appear.

MRS SINANOVIC: Why it has been appealed is there is an argument on that point - well, a number of factors on that point, the reasons behind the not granting of leave to appear, notwithstanding that the applicant had granted me a power of attorney. Now, that is an arguable point, what is the view of the High Court in respect of a power of attorney. If they feel - or they have arrived at a conclusion of power of attorney has no legal standing, then that can cause quite a number of argumentable points.

HIS HONOUR: No, but I understand Justice McHugh to be saying on behalf of himself and Justice Callinan that he did not believe that you would give the Court assistance in relation to the application for special leave, which is your husband's concern - it is not your concern, it is your husband's concern - and that on that basis he would simply adjourn the application to enable your husband either to seek legal representation or to rely on his own submissions, but leave was refused to you.

MRS SINANOVIC: The appellant point is an order made by the judge to order an applicant to rely on his written submissions is one of the appellant points to be argued in this summons to expedite that hearing - - -

HIS HONOUR: Yes.

MRS SINANOVIC: - - - bearing in mind, your Honour, once an election has been made - and it is his right to make that election, it is open to every applicant to decide whether they elect to support oral submissions in support of their written submissions or the High Court has allowed a provision in the Rules that if an applicant elects not to support their written submissions with oral submissions then the High Court does have the power to make their decision on written submissions.

What is arguable is his Honour did not have the power to order the applicant to change his election, because that is his right to do so, and that has actually come later coming out of the transcript. What I heard on that day on 20 November was the Justices directed that he appear himself, which does sound more than likely is what his Honour had the power to say and direct, or for him to get legal representation.

Now, it is quite unusual that a judge orders an applicant, bearing in mind they do not have the power to order a legal representation. It is really a decision of the applicant whether he chooses to have legal representation or he does not. Consideration has to be taken, because we do not have the applicant here, what is his position enabling him to get legal representation. Now, it well may be at this stage, bearing in mind, your Honour, he has been in custody for six years, and what we have to take into account is why the considerable undue delay to get thus far.

Now, what is now in the written submissions is it may well be the High Court does not have the power to dismiss the special leave to appeal and they only have the power to direct these matters back to the New South Wales Court of Criminal Appeal and get them to decide on all the points because, without that, the applicant cannot go forwards and cannot go backwards. One, he does not reap the benefit of a decision that was favourable to him, that he would be acquitted; or, secondly, without a decision he cannot seek a higher court to have it reviewed. Either way, he lost in the Court of Criminal Appeal.

Now, considerably undue delay - sooner or later the courts will have to consider this position. Now, why the applicant has chosen to deal with this as quickly as possible is if it is heard and the High Court is satisfied, bearing in mind we will have to hear what the other will have to say, what the respondent will have to say in respect of it, but if that is the case, your Honour, that is causing even further undue delay and it should never have happened, bearing in mind it took 11 months for a decision to be reached in the court below. Now, he lost 11 months.

HIS HONOUR: But you are seeking leave to appear on behalf of your husband, who is seeking special leave to challenge, amongst other things, a judgment of Judge Karpin ordering him to imprisonment, which imprisonment, as I understand it, has expired. It expired on 28 July 1998.

MRS SINANOVIC: Yes, your Honour.

HIS HONOUR: Well, why would the Court grant special leave to appeal against a sentence that has expired? Occasionally it might do so to relieve a person of the burden of a conviction which was flawed - - -

MRS SINANOVIC: Which he is entitled to have.

HIS HONOUR: - - - but it would not be the sort of thing that would immediately attract urgent consideration by the Court. It would be purely theoretical.

MRS SINANOVIC: But if Mr Sinanovic does go through the process, as we are - that is the reason why the matter was listed. Hence, the matter is now temporarily stayed. Now, if the matter was listed and the High Court agrees that it cannot take this matter any further and must order the matter back to the Court of Criminal Appeal, if it goes in his favour, he is acquitted. Then the High Court does have the power to recredit the sentence. He would automatically be released. And he is entitled to that.

Mr Sinanovic - no court is entitled to say, "Well, I'll delay it, bearing in mind he is going to get out on 2 June", but in the meantime the court must consider is a man who is innocent, likely to be innocent, bearing in mind we have not given him that opportunity - - -

HIS HONOUR: Yes, but you have been given - he has been given that opportunity. Justice McHugh made it absolutely clear:

I propose to adjourn this application and the next application to enable your husband either to seek legal representation or to rely on his own submissions - - -

MRS SINANOVIC: And with all due respect, Justice McHugh - in the view of the Court saying, well, that is an opportunity, but we have not heard from the applicant, where is that opportunity? First of all - - -

HIS HONOUR: The opportunity is if he gets a lawyer, like the great majority of people in the High Court.

MRS SINANOVIC: They do. Now - - -

HIS HONOUR: So the door is not shut and instead of taking that course, which, in the circumstances, was eminently sensible, you have proceeded to ask Justice Gummow to issue a summons allowing you to reargue the matter. His Honour has refused to do that and you have now sought expedition of the hearing of a special leave application against that order. So it is three steps removed from reality. It is hopeless. I have to tell you, Mrs Sinanovic, it is hopeless, hopeless, and it is not the correct - - -

MRS SINANOVIC: What is hopeless, your Honour, I am sorry?

HIS HONOUR: It is hopeless because it is an application to challenge a discretionary order of Justice Gummow, in turn relying on a discretionary order of Justices McHugh and Callinan, and if you had an even the smallest understanding of the principles that govern the review by appeal courts of discretionary practice decisions, you would know that that course is hopeless. The only course that is practical and sensible is to take the course that Justice McHugh suggested, which was that you apply, by a lawyer, to advance the arguments for your husband which have not been determined but simply stood over.

MRS SINANOVIC: Your Honour is familiar with a case of Small v Kennedy when it comes to consideration if accused can obtain legal representation for their trials. There is a - there is no recognition for an entitlement to legal representation in Australia. Now - - -

HIS HONOUR: This is just ill-directed. Justice McHugh has made it absolutely clear:

I propose to adjourn this application . . . to enable your husband either to seek legal representation or to rely on his own submissions -

so that to - - -

MRS SINANOVIC: Well, your Honour, we are entitled to argue - we are entitled to appeal against - - -

HIS HONOUR: Mrs Sinanovic, this is hopeless. I am sorry, it is hopeless - - -

MRS SINANOVIC: But hopeless in what sense - - -

HIS HONOUR: - - - and you are wasting my time and your time.

MRS SINANOVIC: - - - that the door is going to be closed on Mr Sinanovic?

HIS HONOUR: No, it is not closed.

MRS SINANOVIC: Is it the view - - -

HIS HONOUR: I have told you twice it is not closed. It is open if your husband allows a legal representative to come to the Court to argue his submission, instead of your coming along here and putting ill-directed arguments that are not in your husband's interests. I am not concerned with my own time. I am not even really concerned with Mr Kavanagh's time. I am not even really concerned with your time. I am concerned that what you are doing is an impediment to the prosecution of what may or may not be your husband's rights, and you are not advancing those rights by coming here - - -

MRS SINANOVIC: No, your Honour - - -

HIS HONOUR: - - - to seek application in respect of one discretionary decision, which concerns another discretionary decision, which is hopeless.

MRS SINANOVIC: And, your Honour, I respect your view. You are saying that I am bringing an impediment. In my view, I am bringing a recognition to the Court.

HIS HONOUR: Well, I am sorry - - -

MRS SINANOVIC: With all due respect, I am bringing about a recognition to the Court - - -

HIS HONOUR: Yes.

MRS SINANOVIC: - - - which the Court is taking a view it does not want to accept or recognise. Ordering legal representation, yes, I can see in the Court's point of view and to the respondent's point of view that it is beneficial that a lawyer stands here and puts what the Court wants to hear and what the respondent wants to hear. We understand that, because that is the reason why that order was made. With all due respect, your Honour, I know you are getting very upset about this - - -

HIS HONOUR: I am not upset at all. I am not upset at all.

MRS SINANOVIC: - - - but if you could see it from the - - -

HIS HONOUR: I am concerned that your husband, who is the litigant, is not having his interests properly advanced.

MRS SINANOVIC: Well, if your Honour - the High Court - and I have been able to establish with the High Court what remains important to them is if there is nobody standing in front of them in silk the High Court will not listen.

HIS HONOUR: It has nothing to do with silk.

MRS SINANOVIC: Well, it takes - - -

HIS HONOUR: It has nothing to do with lawyers. It is a matter of the litigant's right and the litigant can either advance that right in person or, in certain States, if he is still in prison, by writing or by a lawyer, and you have sought leave to appear. It has been refused and, although I am the most tender to the right of people to have leave, I can understand why it has been refused. You are just misdirecting your energies and, more importantly, you are impeding proper consideration of your husband's application.

MRS SINANOVIC: And if it is found later that what I have submitted was of substantial legal argument, your Honour, it would be quite embarrassing, would it not? It would.

HIS HONOUR: Yes, well, I do not think that will happen because your application is hopeless.

MRS SINANOVIC: That is your view.

HIS HONOUR: I am afraid I have sat here now for 25 minutes listening to it and it is not advancing the matter at all.

MRS SINANOVIC: Well, would your Honour agree, therefore, that by that argument, that direction for legal representation, that there is no other option but Mr Sinanovic having to serve out all sentences, which is in breach of the laws of the Constitution - - -

HIS HONOUR: There is another - there is another option and I have told it to you now three times. It is that your husband secure a lawyer, who will stand before the Court and argue his application for special leave.

MRS SINANOVIC: It is easy to say secure a lawyer but lawyers need 5,000 a day to appear in the High Court. Now, that has always been the fundamental argument. This is not a question where we can go out and get a $5,000-a-day QC to stand up before the High Court, prepare this, and it is not just a question of one day appearing in the Court. It may take two weeks.

HIS HONOUR: My understanding is that if there is some merit in the case, the Bar Association will provide pro bono counsel to appear before the Court.

MRS SINANOVIC: At this late stage, your Honour?

HIS HONOUR: Well, that is what is contemplated by the order of the Full Court. Anyway, I think I will ask Mr Kavanagh a question, if I may. Mr Kavanagh, have I understood correctly that the Full Court has not dismissed the application for special leave, it has simply adjourned it? Is that correct or not?

MR KAVANAGH: That is correct, your Honour, yes.

HIS HONOUR: So that it would still be open for Mr Sinanovic, in respect of those matters which he still wishes to challenge and notwithstanding the order of Justice Gummow, to come directly to the Court with a lawyer and ask that that application be expedited and, if it has merits, heard on its merits on another day, indeed, a day before June?

MR KAVANAGH: That is correct, your Honour.

HIS HONOUR: Yes, thank you.

MR KAVANAGH: In respect of both matters, 260 of 2000 and 302, I think it is, of 2000.

HIS HONOUR: Yes.

MR KAVANAGH: Yes.

HIS HONOUR: Very well. Thank you very much.

I have before me an application to expedite the hearing of an application for special leave. The application relates to an order made by Gummow J on 20 December 2001. In those matters Gummow J refused leave to the applicant, Hakija Sinanovic, to issue process. The application in question has been made by the applicant's wife, Mrs Sinanovic, purportedly on the applicant's behalf. Mrs Sinanovic has attended the hearing today to seek expedition of the special leave hearing. She sought leave to represent her husband.

Mrs Sinanovic was permitted to read an affidavit which she has sworn. The affidavit deposes to the fact that her husband entered custody on 3 November 1997. He is presently held at Junee Correctional Centre. He cannot read or write English. Mrs Sinanovic states that she is:

assisting the applicant with his court matters and act[s] according to his instructions.

Long ago I stated, in one of the many Sinanovic proceedings, that it was admirable for a wife to advance the cause of a husband, or, indeed, of any person to seek to advance the cause of another, before a court, where the subject of the litigation was unable to attend the court and was, as Mr Sinanovic is said to be, unable to read or write the language of the court: see Sinanovic v The Queen [1998] HCA 40; (1998) 72 ALJR 1050 [1]. However, the history of these proceedings since I made that statement illustrates the fact that sometimes, however well meaning, the intervention by such a person can do little to advance the cause of the subject. For want of legal knowledge and experience, he or she might even impede the interests of the person concerned. I believe that that is the case in respect of the proceedings before the Court today.

In order to understand the order of Gummow J refusing leave to issue process, it is necessary to appreciate that the order relates to an attempt by Mrs Sinanovic, purportedly on behalf of her husband, to challenge a decision by McHugh and Callinan JJ on 20 November 2001 refusing her leave to appear on behalf of Mr Sinanovic. Mr Sinanovic had commenced proceedings in this Court seeking special leave to appeal in respect of two of several convictions that have been entered against him and the sentences that followed. Those convictions were entered at a trial respectively before her Honour Judge Karpin in the District Court of New South Wales and another before Judge Grogan in the same court.

At the outset of the application for special leave before McHugh and Callinan JJ, McHugh J asked Mrs Sinanovic to justify her application to appear for her husband. There was a lengthy exchange between McHugh and Callinan JJ and Mrs Sinanovic. At the end of this exchange, McHugh J speaking for the Full Court said, addressing Mrs Sinanovic:

Leave is refused to appear. I propose to adjourn this application and the next application to enable your husband either to seek legal representation or to rely on his own submissions, but leave is refused, Mrs Sinanovic.

The "leave" in question in these comments was the leave sought by Mrs Sinanovic to represent and speak for the litigant in the proceedings, Mr Sinanovic. It is clear from the transcript, and agreed by the representative of the Crown who has appeared today to assist the Court, that the Full Court did not on 20 November 2001 finally dispose of the special leave applications. It merely refused leave to Mrs Sinanovic to advance those applications. Accordingly, it still open, even at this time, for Mr Sinanovic to do so. Because he is in custody and unable to attend the Court, what he needs to do is either to signify that he relies on his own written submissions, as presented or elaborated, or to secure legal representation before the Court to support the submissions which he wishes to place before the Court.

Instead of taking the course that was left open by the Full Court, Mrs Sinanovic proceeded, purportedly on behalf of Mr Sinanovic, to file the application to reopen the special leave applications before the Full Court. It was that application which Gummow J refused leave for filing. It follows that the present application before me concerns the suggested expedition of a hearing, before a Full Court of this Court of the challenge, not to the sentences imposed on Mr Sinanovic, nor to any concluded substantive decision made by the earlier Full Court constituted by McHugh and Callinan JJ, but to the order made by Gummow J refusing leave to prosecute a challenge to the order made in the Full Court proceedings.

This chronicle of events has only to be stated to reveal how hopeless is the substance of the application. It represents a challenge to a discretionary order of a Justice of this Court in a matter of practice or procedure: cf House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. That order is well supported by the circumstances of the case. Moreover, the course that has been taken by Mrs Sinanovic does not objectively advance the interests of the person primarily concerned here, namely, Mr Hakija Sinanovic. Those interests would have been properly advanced by taking the course that was left open by McHugh and Callinan JJ. That course is still open to Mr Sinanovic, even at this time.

I am conscious of the fact that the expiry of the last remaining of the several sentences imposed upon Mr Sinanovic, namely that imposed by Judge Luland in the District Court of New South Wales, is said to occur on 1 June 2002. Accordingly, upon one view, unless Mr Sinanovic's applications before this Court were heard promptly, the sentences in respect of which the applications are made would have expired before the hearing took place. But the course adopted by Mrs Sinanovic, in seeking to challenge the order of Gummow J is completely misconceived. The attempt should not be expedited because it is doomed to fail.

Accordingly, the application for expedition is refused.

I have not formally ruled that Mrs Sinanovic should be refused leave to appear on this application for Mr Sinanovic. I have listened to her in case there was any foundation for the application. In Cameron v The Queen [2002] HCA 6 at [96]- [98] I referred to my concern that, in some States of Australia of which New South Wales is one, persons in custody who are unable to afford legal counsel that they would otherwise retain, may be at a disadvantage in advancing their rights before this Court. They are not in the ordinary course brought to court to argue their applications. In other States of Australia, prisoners can appear before the Court in person in the ordinary course, as Mr Cameron did with utility. It is for that reason that I have listened to Mrs Sinanovic. Having listened, I am of the view, for the reasons that I have given, that there is no possible prospect of success in the application. No glimmer of a relevant injustice has been uncovered in the mountain of paper generated by the many applications Mrs Sinanovic has brought. The application should not, therefore, be expedited.

The door of this Court remains open for the applications for special leave to be advanced in the permissible way. That is the course that Mr Sinanovic should be advised to take if he still wishes to prosecute his substantive applications.

The Court will now adjourn.

AT 10.13 AM THE MATTERS WERE CONCLUDED