Abriel & Ors v Rothman [2004] HCATrans 335 (10 September 2004)

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Abriel & Ors v Rothman [2004] HCATrans 335 (10 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S146 of 2004

B e t w e e n -

RUDOLF ABRIEL

First Applicant

VERA ABRIEL

Second Applicant

PREMIER KNITS PTY LTD

Third Applicant

and

STEPHEN ROTHMAN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 2004, AT 9.58 AM

Copyright in the High Court of Australia

__________________

MR R. ABRIEL appeared in person.

MR J.G. DUNCAN: If the Court pleases, I appear for the respondent. (instructed by McCabe Terrill)

GLEESON CJ: Mr Abriel, I think the Registrar has notified you that I hold some shares in Westpac, although I do not think that Westpac has any interest in the outcome of this case, and that I also have personally known for many years Justice Bennett.

MR ABRIEL: I received a letter, yes, I did.

KIRBY J: It was communicated to you in respect of myself that Westpac is my ordinary bank. I also had some investments in AGC and I also have known Justice Bennett for some years and been to her home and I have also known Mr Rothman and had some social exchanges with him, though none of them are sufficient in my view to disqualify me from sitting. But I had all those matters communicated to you and I understand there is no objection to my participating in the matter.

MR ABRIEL: No objection, your Honour.

KIRBY J: Thank you, Mr Abriel. I gather that is the same at the other end of the table?

MR DUNCAN: That is so, your Honour.

GLEESON CJ: Yes, go ahead, Mr Abriel.

MR ABRIEL: Your Honours, I have a special request. I think that a 20-minute limit is set for cases which have been through the legal process of a trial. This is a summary dismissal case and it will require more time on my part.

GLEESON CJ: No, we have a number of other cases in the list and we have to ration our time. This, I might add, is a case that one way or another has well and truly been through the legal process in the past. Go ahead. Your time will be limited to 20 minutes.

KIRBY J: We did receive a copy of the written text of what you wanted to say today and I have read that.

MR ABRIEL: Honourable Justices, I am appealing against a legally unsustainable summary dismissal decision. The primary judge, Burchett J, reasoned that the stringent test for summary dismissal goes well beyond the mere conclusion that the prospects of success are low. The general rule is that a party approaching the Court must be given a hearing in the interests of justice. Exceptionally, a full hearing may be denied where the proceeding is clearly shown to be without foundation and bound to fail.

In the case of Abriel v Rothman it was proven that the defendant had no defence and that granting summary dismissal was wrong. The Court of Appeal judges, Ipp and Sheller, established and identified the arguable point of undisclosed conflict of interest by the defendant and expressed their astonishment that Justice Burchett did not even mention it in his judgment although the matter was raised in court and the Rothman letter was an annexure in an Abriel affidavit. The Full Court of Appeal too concluded that the conflict of interest was there but found that the argument was not available to me because my opposing submission in reply in the letter of 17 April was not in sworn form.

In fact that there was no need for a sworn reply to a barrister’s regular letter. Besides, my letter of 17 April was part of an affidavit. In the letter of 9 April 2001 Mr Rothman wrote that he told me at the time that he was:

unable to run a case for you because, and/or to the extent that it involved an attack on Annabelle Bennett who was a friend and colleague. I offered to assist you in the drafting of the Appeal . . . you pleaded with me to do the appeal and I did.

The primary judge erred by ignoring the undisclosed conflict of interest and the Full Court of Appeal also erred by acknowledging the undisclosed conflict of interest but denying me the legal right over it. Justice Burchett allows for refusal of summary dismissal in a case if it could be proven that Justice Dowsett displayed apprehended bias and Mr Rothman did not agitate it in court, a point which he had in notice of appeal.

However, his Honour states that there was no vestige of support for the allegation. Justice Burchett made the statement while he had before him 56 instances of extreme bias by Justice Dowsett, all quotations from the transcript. The Full Court of Appeal made no comment. The Full Court further concludes that my appeal must fail because, if allowed:

it would be an abuse of process to allow the propriety of Ms Bennett’s conduct to be re-litigated in these proceedings.

Several times in course of the Court of Appeal hearing the judges suggested to me that I still had a claim against Mrs Bennett and every time I said that I have forgiven her. In the end the President, Justice Mason, accepted it and used the phrase “ancient history” in reference to Bennett’s case. The primary judge further declared that nine points out of ten of the notice of appeal which Mr Rothman did not agitate in court were futile and the result of course could not have improved had he advanced the argument. Justice Burchett does not analyse any of the nine points and does not say why they were futile. The nine points were written by a highly skilled senior counsel, Mr Rothman, and were based on evidence, law and ethics and if agitated in court would have overturned Justice Dowsett’s biased judgment against which we were appealing. In my application for special leave to appeal, pages 46 to 50, I believe I proved convincingly that every point of the nine points would have been a winner.

In summation, both judgments by primary judge and Full Court of Appeal confirming summary dismissal were wrong. There was no basis for summary dismissal. It is important to note that Mr Rothman gave no reason why he did not use the nine points. It is also critical that Mr Rothman never told me of his intention not to agitate the points in court. If he did, I would have dispensed with his services and gone it alone and won. However, the day before the trial he told me that we were going to lose without saying why. Obviously the fateful decision was made and Mr Rothman went to court to plead only one point knowing that this way he would lose.

Everybody was astounded into disbelief. The Federal Full Court of Appeal made it a point to remark that only one ground was agitated. The opposition lawyers laughed all the way to the bank, their client, Westpac. The collateral damage to me and my family as a result of the loss is awesome. My wife is on her deathbed and our son is so sick that he cannot work and support himself. For me it is now the last chance for justice and survival. When I first met Mr Rothman to brief him on the proposed appeal, I did not have to spend too much time to get him to take on the case. He was convinced, he was impressed and sympathetic. I told him I had the money and he did not hesitate to take it pro bono.

From his letters and looking objectively at the notice of appeal, it becomes clear that Mr Rothman is aware that he did wrong and is liable over his failure to agitate the ten points. He is trying to deflect the allegations against him with untrue, misleading statements. Since there was never a trial, I could not cross-examine Mr Rothman. When I subpoenaed him to give evidence, twice judges excused him from appearing. But I would like to ask rhetorically what it meant by saying that he offered to assist in the drafting of an appeal or, as he said in the letter to the Bar Association, that he agreed to redraft a notice of appeal. If there was nothing to his notice of appeal and his failure to agitate all these points in court, there would have been no need for Mr Rothman to claim or suggest that the notice of appeal was not all his.

In general, throughout I never gave instructions to Mr Rothman. The court expected appeal hearing to be a regular process and assigned three days. It took only three hours. Usually a professional negligence case is resolved in court in one year. This case took three years. Westpac’s barrister, Mr Dowdy, was a subject of untruths. He was lying about the Grunstein letter incident and there was corroborated evidence to support it. To Justice Dowsett Mr Dowdy said that the purpose of the letter was to show Mrs Bennett why Westpac would not give me any money. It was not my letter and I knew nothing about it. Obviously he was not telling the truth. Mr Rothman was convinced of that.

However, in his written submissions, page 4, paragraph 27, he states that he does not impugn on the conduct of Mr Dowdy. The Federal Court of Appeal decreed that since credibility of hostile witnesses was not challenged, the appeal falls apart. In his letter to me Mr Rothman says:

I have no doubt that AGC and/or Westpac have treated you unfairly and unjustly.

But in paragraph 27 of his written submissions he says, “Even the Respondents (Westpac) are not subject of allegation of impropriety”. The exoneration of the respondents was not called for and there was no truth in it, so why did Mr Rothman do it? Who did he try to please and why? The fact that he was weakening or possibly destroying his client’s case did not seem to bother him. Mr Rothman’s biggest mistake was that he did not agitate the matter of the Grunstein letter.

Justice Ipp was of the opinion that Mr Dowdy’s explanation in reference to the Grunstein letter does not have a rational basis. The judge also found the:

Grunstein letter a very strange document. In the case before Justice Dowsett it would reflect very seriously on them and I would have thought that in the appeal a great deal of capital could have bee[n] made of that letter against the respondents.

He must have had strong motives to do the wrong things and I can only speculate what they are. The High Court will have the opportunity to send the message to the community that we are all equal before the law and accountable for our misdeeds and this includes senior counsel. In England they have already removed the Giannarelli principle from the statutes.

The apprehended bias of Justice Dowsett is beyond doubt. On page 417 of the Federal Court transcript Justice Dowsett approves of Westpac’s approach at the mediation not to offer me any money. It seems to me the way to deal with a nuisance and that is what it was, he said. All along just never questioned – his Honour was oblivious to the affidavits of the liquidator – of Jonathon Silver in which he states, “I have discovered further information which caused me to conclude on that basis that the new evidence that Jonathon Silver Pty Limited was almost certainly insolvent at 30 June 1991.”

Five months later in November AGC vouch for their client, Jonathon Silver, when I first refused the order of $50,000. I ask them to have them checked out. They came back and said he was good and accepted his invoices for factoring with..... I was misled. AGC knew that Jonathon Silver was insolvent. Jonathon Silver owed $2.5 million to AGC. .....were given good references and excellent credit. The proceeds went to AGC to repay in full. Mr Rothman knew all that. He knew all the 56 instances of bias. In his notice of appeal he declares that on 27 February 2001 he did not present an argument of actual apprehended bias because such an argument was not available, but five months earlier in his notice of appeal he made the apprehended bias at the top of his notice of appeal.

At the end of the day Westpac was my disaster and embarrassment to a number of people involved. Justice Ipp took notice of it and remarked that a great deal of capital could have made against it. Mr Rothman states his Honour erred in giving no or insufficient weight to the fact that the Grunstein letter which ought to be measured by its irrelevance to the mediation and issues agitated except for the purpose of putting improper undue pressure on appellants’ counsel in the mediation, counsel insisted upon by the respondent as a condition of the mediation.

Mr Rothman’s concern went further than that in his letter to me he personally regrets that the original case against Westpac did not go to trial. He.....to overturn Justice Dowsett’s judgment and subsequently make Westpac accountable, but he does not do it. Instead he exonerates Westpac and says in his written submissions that he does not question their integrity. Mr Rothman showed disrespect for justice. He pleaded summary dismissal knowing that there was more than one arguable point in my amended statement of claim and the evidence was in his own letter to me. Expecting the appropriate judicial reaction, he went for security for costs implying that, since I lost my money, I am not entitled to recourse to law.

When I said I was wronged by the bank and was suing the bank, people laughed and said to me, “You can’t win in a case against a bank with deep pockets”. When I sued Mr Rothman, again people laughed and said that you cannot win in court against a barrister. The High Court of Australia now has the opportunity to act to correct the public perception and send a signal to the community that the law reigns supreme and applies to everybody irrespective of position, status or rank. If a citizen is wronged by any party, he or she can count on it that the Constitution and the Bill of Rights will protect him and justice will prevail. By granting me special leave to appeal, this honourable Court will give the assurance to the judiciary and the wider public that every case should and will be judged on its merits without fear or favour to any of the litigants, no matter who they are.

I want to mention to the Court the matter of credit. In 1974 I had the biggest fabric knitting mill and, in spite of the recession, a net profit of $3 million in today’s money values for the year and an unencumbered home at 8 Kambala Road, Bellevue Hill, worth today $10 million. I lost it all in two hours. A Danish conglomerate, my sole financier and yarn supplier panicked over the economic situation and decided to clear out of Australian market. They were also worried over the pending Trade Practices Act which would have rendered their security null and void because I was required under the contract to buy all my raw materials exclusively of them.

They served me with a letter of demand to repay my total indebtedness of $8 million forthwith. Two hours later a receiver moved in. “This is against Whitlam, not you”, said to me the receiver, John Harkness, and lured me into not taking out an injunction. The secured creditor got all his money; I lost everything. Disgraced and disgusted, I took my family into self-imposed exile in Florida and eight years later I started. This is my sad story, your Honours, that I lost everything and today I am destitute, not because I made mistakes in business, not that something went wrong. In 40 years I never had a month without profit. I lost everything because of injustices against me by big business, by people who had the might and, thanks to the might, they had the right.

I want to conclude with the following. In his letter to the Bar Association, Mr Rothman writes that on 27 February 2001, the day of the appeal trial, he conferred with me in the morning and he made it clear.....that one of the exchanges between the complainant Dowsett and
the question of bias impossible to pursue. This is a puzzle. It is bizarre. I do not know what he is talking about and I never had the opportunity to cross-examine him, and this is denial of justice to me. Then he says that.....stated that he understood the issue and apologised for not drawing the attention to counsel earlier and wanted counsel to.....the court’s attention certain material relating to the merits of this case.

This is fantasy, this is something unrealistic and I do not know what he was talking about and it is obvious that Mr Rothman was desperate to find a way out to defend himself. Then he pointed out that the evidence was.....in the processing below was such the submission could not be made. If it was his instructions that the material had to be put before Full Court, he could not do that, and that I had to put these submissions myself. He said that one hour before the beginning of the trial obviously that there was absolutely no truth in it.

There is something else. Mr Rothman went on with one point out of the ten and this is questioning the denial of my right to cross-examine Mrs Bennett, the same Mrs Bennett who said was a friend and he could not take on the case because of the friendship, the same Mrs Bennett he chose as his subject of attack. I mean, there is a such a contradiction in it. If there was a trial and if I could cross-examine Mr Rothman, I could prove that he had no defence whatsoever. There was no – that he went in literally to lose the case for reasons of his own. I know the reasons which – five reasons why he did not want to win the case. Your Honours, if I mention them, it would be only speculation.

GLEESON CJ: Thank you, your time is up, Mr Abriel.

MR ABRIEL: Thank you.

GLEESON CJ: In this matter the Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 10.20 AM THE MATTER WAS CONCLUDED