Goldberg v Brown [2004] HCATrans 31 (19 February 2004)

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Goldberg v Brown [2004] HCATrans 31 (19 February 2004)

Last Updated: 25 February 2004

[2004] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M253 of 2003

B e t w e e n -

DAVID GOLDBERG

Applicant

and

RHONDA BROWN

Respondent

Application for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 19 FEBRUARY 2004, AT 9.31 PM

Copyright in the High Court of Australia

MR D. GOLDBERG appeared in person.

MR H.D. McARDLE: May it please the Court, I appear for the respondent. (instructed by Victorian Government Solicitor)

HIS HONOUR: Mr Golberg, I have read the papers that you have filed, of course. Is there anything you want to add to what you have said there?

MR GOLDBERG: Since that time when I filed those papers, your Honour, which was on 27 November, and then the date was set on 2 February this year, I have also received a number of pictures from the police. Those pictures reinforce my case that there is nothing wrong with that particular car and therefore I decided to bring that application if it quickens it up, because what I am saying is, as you know, there is nothing wrong with the car. We do have the receipts for purchase of the car and all the parts and the car was repaired according to the insurance report, the damage which sustain it. I do have pictures in my possession that what was said in the report is exactly the same what has been done to the car, plus you have a report from the Victoria Scientific Centre which has examined the car. So that is my issue.

I am extremely concerned, your Honour, that I have to come before this Court in a matter like this one. I mean that matter should be resolved in a lower court and it has not. I have the same situation in the Court of Appeal. They had said I have to make an application for that date to be set. That application is yet to be heard on 19 March. I was without the car for 12 months. We have got everything legitimate, there is nothing wrong, there is proof of it and I cannot get anywhere. I have to come to this Court.

HIS HONOUR: The immediate question that I have to decide is whether there is any reason to put your case on ahead of other cases in the list. Now, I understand that you say, first, it is a clear case. I understand that you say it is a case that is important to you and that you are left in the position where you and your wife do not have access to the car and that that is a matter of not only concern to you, but inconvenience and, you would say, cost. The critical question for me is, why should I prefer your case over the other cases that are waiting in the list? Is there anything you want to say about that?

MR GOLDBERG: Yes, I would like to..... There is no question of preferring anything. What I am saying is if I get the date set, whatever that may be, at least I know what I am waiting for. At this point in time I have spoken to Ms Musolino and she told me that she is unable to provide me with any date, whatever that will be, in 2005 or 2006 or whatever that may be. We are at the point that we do not know whenever the case will be heard.

HIS HONOUR: I think the probabilities are that it will be heard this year, but you have to understand that the work that comes to this Court, firstly, is considerable – there is a lot of cases – and, secondly, it includes, for example, cases where people are in gaol and we treat those cases, cases where people are in gaol, as more urgent than cases where people are ultimately fighting about money. That may be right, it may be wrong, but it has always been the way we have organised our business. Now, the question is, is there anything that you want to say which would show why we should take your case out of order?

MR GOLDBERG: I am not trying to say my case is out of order. What I am trying to put to your Honour is that if this Court can set the date, whatever that may be – I am not trying to jump before anyone else. I am not saying my case is more important than anyone else. What I am trying to say is, please, give me some sort of time frame that that will happen in – 2004, 2005.

HIS HONOUR: The best indication we can give is that it is likely that you will come on, I think – this is my untutored estimate – in the December special leave applications, which is the second Friday in December. That is the best we can offer you at the moment. I know that that is imperfect. I know you may think it is unsatisfactory. It is the best we can do.

MR GOLDBERG: In that case, if I could ask your Honour please set a date in December then.

HIS HONOUR: No, I will not, because it depends on what other demands there are on the Court’s business. We take cases from around Australia. They are a variety of cases and I cannot now say that your case will be given a date in December. That, I think, is the probability, but I cannot and will not say it will be given that date.

MR GOLDBERG: But in that case, is it possible that your Honour can set the date in 2005?

HIS HONOUR: No.

MR GOLDBERG: I have been waiting that long and I do not think another 12 months is going to make much big difference. The damage has been done, so the issue is it is not going to affect me that much more than it already has affected. I mean, I am not a rich man and obviously that is an enormous problem to me and to my wife to be without a motor car for that period of time.

HIS HONOUR: Yes.

MR GOLDBERG: So that is what I am saying to your Honour.

HIS HONOUR: Yes. Is there anything else, Mr Goldberg?

MR GOLDBERG: I do not think there is anything else I can add. I mean, there is another issue which when I am here today, I may not come here before – the matter could be sorted out before that. I have been before this Court on two occasions and I am profoundly disappointed that on both occasion – one of those occasion was before your Honour – that my legal rights were not uphold. I am unhappy about that.

HIS HONOUR: Yes.

MR GOLDBERG: I mean, I have enormous faith in this Court and that faith has diminished. Those rights were never uphold and that is why I am here for a third time. That is all I wanted to say.

HIS HONOUR: Yes, thank you, Mr Goldberg.

MR GOLDBERG: Thank you.

HIS HONOUR: Thank you. I need not trouble you, Mr McArdle.

On 15 August 2003 the Court of Appeal of Victoria (Phillips JA and Ashley AJA), dismissed an application by the present applicant, Mr David Goldberg, for orders that an appeal he had instituted to the Court of Appeal not be taken to be abandoned. That appeal was against orders made on 28 March 2003 by Justice Osborn in the Supreme Court of Victoria dismissing Mr Goldberg’s application for interlocutory orders directing the respondent, a police officer, to release a motor car then being held by police under a warrant issued pursuant to section 465 of the Crimes Act 1958 (Vic). It is not necessary to explore further the circumstances surrounding the seizure or detention of the motor car or to examine the consequences of Mr Goldberg’s contention that the motor car concerned is his wife’s.

On 28 August 2003 Mr Goldberg filed an application for special leave to appeal to this Court, against the orders of the Court of Appeal made on 15 August. He now applies for an order expediting the hearing and determination of that application or, as he indicated orally this morning, for an order fixing the date on which the application will be heard.

In support of his application he contends that the case, as a whole, is very clear cut and that, having complied with the requirements for the hearing to proceed, there is now no reason for it not to be dealt with promptly or at least at a fixed time. He swears that:

It is clear that the car was seized illegally and unlawfully with the main objective to keep it as long as possible in order to inflict an enormous damage to the Plaintiff and his wife.

I refer in this connection to his affidavit of 27 November 2003, paragraph 6.

I accept that the litigation in which the applicant is engaged, including, in particular, his application for special leave, may be of great importance to him. It is evident that the detention of the car causes inconvenience to any person who, but for its detention, would be entitled to its use.

The question which the application for expedition raises, even if understood as an application for the fixing of a date, is whether his application for special leave should be dealt with separately and differently from others waiting in the list.

The pressures of work in this Court do not diminish. Many applications are made to it for special leave to appeal. Each of those applications is of critical importance to the particular litigants concerned. In the end, however, the Court must deal with those applications in the order in which they are ordinarily fixed.

In my opinion no sufficient cause is demonstrated, either to expedite this application or to give it a fixed date. Accordingly, the applicant’s application is dismissed. It seems to me that the appropriate course is to make the costs of the application costs in the application for special leave.

Do you wish to be heard against the making of a costs order in those terms, Mr McArdle?

MR McARDLE: No, your Honour.

HIS HONOUR: No. The orders are: application dismissed; costs of the application to be costs in the application for special leave.

AT 9.43 AM THE MATTER WAS CONCLUDED