Allesch v Maunz

[1999] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Registry  No C26 of 1998

B e t w e e n -

ERNEST FRANZ ALLESCH

Applicant

and

BRIGITTE MAUNZ

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 6 AUGUST 1999, AT 10.08 AM

Copyright in the High Court of Australia

MR E.F. ALLESCH:   Your Honour, I am appearing in person.  I am the applicant.

MR M.D. BROUN, QC:   If the Court pleases, I appear for the respondent wife.  (instructed by Ken Cush & Associates).

GAUDRON J:   Mr Allesch, we have read the papers and we think, at first instance, it would be more helpful to the Court if Mr Broun gave us his reasons why leave should not be granted.  That does not mean that we will not return to hear from you in due course.

MR BROUN:   Your Honours, the different views as to the width of the discretion to set aside a judgment made in the absence of a party are well summarised in the judgment of Mr Justice Lindenmayer in the Full Court of the Family Court at page 112.

GAUDRON J:   Are we to assume that what his Honour there said is correct?

MR BROUN:   No.  Well, your Honours, the majority took a much broader view, that is Justices Kay and Brown, in effect, saying, that if the absence of the party from the hearing is explained and a proper explanation is given for it, then there are very strong considerations why the discretion should be exercised to order a re‑hearing.  Justice Lindenmayer made the points that it must be not only the absence of the respondent’s explained but that he had an absence of a reasonable opportunity to be heard and that he did not avail himself of that reasonable opportunity, and that there is no countervailing hardship question to the wife to be considered, or to the other party to be considered.  Now, your Honour ‑ ‑ ‑

GAUDRON J:   There is a real question as to whether either position is a correct statement of the principle, is it not?

MR BROUN:   Your Honour, both of those views in the Full Court, very carefully and very thoroughly examined the judgments of this court in Taylor v Taylor, which is what we might think of as the leading authority on a judgment obtained in the absence of one of the parties, and the majority, Justices Kay and Brown, took the most liberal and broad view of that, that the views expressed in that court and Mr Justice Lindenmayer ‑ ‑ ‑

GAUDRON J:   The question in Taylor was really of a different kind, was it not?  The question was whether there was inherent power in the court.  It was not ‑ ‑ ‑

MR BROUN:   The court went on to discuss the question, though, in Taylor as to what the rules were and what the effect was of a failure to appear, and having expressed that view in that particular case, it was held that the judgment should effectively be set aside and a fresh look had at the whole matter.  The significance in this matter, your Honours, is that on the more narrow view, if I might call it that, taken by Justice Finn at first instance and Justice Lindenmayer on appeal, which is a view we would submit is the correct one, they were of the view that on the events that had happened up to the date that the application to set aside the judgment was made before her Honour Justice Finn, that the application was not merited, there having been ample opportunity to the husband to be represented if he wished to do so, and he having had two lots of notice ‑ ‑ ‑

GAUDRON J:   There is a real question, though, whether that is a correct application, is there not, in circumstances where you could assume that there might have been an opportunity which he might have been avail himself of at any time up until the hearing date was fixed, but which opportunity was totally denied him once the medical condition manifested itself?

MR BROUN:   No, your Honour.  He was twice served with notice, first of all, of the pre‑hearing conference or the pre‑hearing direction listing, so that he could be represented at that.  He was not in hospital until a date shortly before that listing.  He could have easily retained a solicitor to have gone along to court on his behalf and said, “Look, the man is in hospital.  We cannot go on”.  Then, again ‑ ‑ ‑

KIRBY J:   Did he not send a message?  Was not a certificate sent in some way?

MR BROUN:   Your Honour, there was a certificate sent but that merely said he was not going to be fit for work.  He could easily have phoned a solicitor and made some representations.  When the actual hearing was fixed ‑ ‑ ‑

KIRBY J:   Did the certificate indicate the reason for non‑fitness for work?

MR BROUN:   Yes, it did.  It said he had a heart condition, I think it described it, as a cardiac infarct, and said he would not be fit ‑ ‑ ‑

KIRBY J:   That is a pretty serious thing, a cardiac infarct.

MR BROUN:   It can be serious, your Honour, or it can be relatively minor.

KIRBY J:   Infarct is blockage, and a blockage is serious.

MR BROUN:   Yes, your Honours.  But he was said to be fit for work.

KIRBY J:   It is not angina, this is an infarct.

MR BROUN:   Yes, your Honours.

GAUDRON J:   And he was in hospital.

MR BROUN:   Your Honours, the chronology is set out beginning at 153, which gives you the date of the sequence of these events.  He was in hospital on - he went into hospital on ‑ ‑ ‑

HAYNE J:   On 3 June, did he not?

MR BROUN:   He went in firstly on some date in May.  I think 1 May he went in.  Then he came out, so far as the evidence showed, approximately on the 14th.  The matter was listed for directions on 19 May.  So he was not in hospital on the date of the directions hearing.  This is on page 154.  He had been given notice, incidentally, that if he did not come to the directions hearing, the case may be listed as an undefended matter.  He was given those directions specifically because of his failure to appear and the delays that had already incurred in the matter in relation to a subpoena he had sought to issue to bring a judge of the Australian Capital Territory court to give oral evidence, to which the registrar declined to issue, and that he appealed about that to a judge.  Special arrangements were made about that, and he did not appear on that.  So that there was a history of non‑appearance.  So that it was necessary to give him warning, “If you do not come on 19 May, it may be fixed for hearing as an ex parte hearing.

It was so fixed.  He was again given notice and he was admitted then to hospital on 3 June and the operation was performed on 5 June, and the hearing occurred on 14 June when, as I recollect the evidence, though I think the chronology does not make it clear, he was actually out of hospital but recovering from the triple by-pass.  He had two windows of opportunity to instruct someone.

KIRBY J:   But was it known on that date that he was in hospital undergoing a by-pass operation?

MR BROUN:   Your Honour, I do not think – on which date?

KIRBY J:   On the date of the hearing.

MR BROUN:   No, he was out of hospital by then.  He was out, but he was still recovering.

KIRBY J:   Yes, but presumably he was still recovering from a triple by‑pass on 14 June.

MR BROUN:   Yes, it was some nine days after the operation but he was ‑ ‑ ‑

KIRBY J:   The judge pressed on with the case, even though he was an undefended litigant and he had undergone this serious operation?  Have we come to this, that matters cannot be adjourned for a short time to allow people to recover from a triple by-pass to put their case, however foolish their case may be?

MR BROUN:   Your Honour, nobody had come along to the court to say that he had suffered a triple by-pass.

KIRBY J:   But it was known that he had had an infarct and it was known that he was in hospital for an operation.

MR BROUN:   At an earlier time, yes.

KIRBY J:   Not very much earlier, and that he had undergone some form of major heart surgery.

GAUDRON J:   Was it known that he had undergone heart surgery?

MR BROUN:   Before Justice Finn, I cannot tell your Honour that offhand.

GAUDRON J:   Anyway it was known soon afterwards.

MR BROUN:   Known soon afterwards.  Your Honours, it was certainly known ‑ ‑ ‑

HAYNE J:   But when he came to apply to set aside the order, all of these facts were then before the court?

MR BROUN:   Yes, indeed.

HAYNE J:   And the order was not set aside, despite the information thus provided?

MR BROUN:   That is so, your Honours, yes.  The ‑ ‑ ‑

HAYNE J:   Why should that order not have been set aside in light of what was then revealed?

MR BROUN:   Your Honours, the majority in the Full Court took the view it should have been set aside, so, effectively Mr Allesch is appealing from the view of the majority that, in those circumstances, the judgment ought to have been set aside.

GAUDRON J:   He was appealing from an order which said, “Even though the judgment should have been set aside, it will not be set aside”.

MR BROUN:   Your Honours, the position then arose - keep in mind, of course, your Honour, the long laps of time between the orders being made in 1995 - - -

GAUDRON J:   That really is the crux of this matter, is it not?  Whether the events which had happened justified the Full Court declining to set aside the order which, in their view, should have been set aside at an earlier date.

MR BROUN:   At an earlier date, yes, that is so, your Honours.  What happened was the majority of the Full Court took the view that the trial judge’s discretion, having miscarried, it was a matter for the re‑exercise of discretion, and in the examination of that discretion they were entitled to look at the three years that had passed since.

GAUDRON J:   Well now, are they?  Were they not matters that more relevantly went to the question whether the appeal should be reinstated rather than whether the appeal should be allowed?  You see, the appeal had been reinstated, had it not?  One can well understand a decision not to reinstate an appeal on the very grounds upon which the Full Court relied.  We have got past that.

MR BROUN:   Once the appeal was reinstated and the Full Court had to reconsider the exercise of discretion, in our submission, certainly, the Full Court were entitled to look at the sequence of events as to what had happened since that order in ‑ ‑ ‑

GAUDRON J:   But was not its decision tantamount to saying the appeal is not reinstated?  It was a de facto determination that the appeal, in effect, should not be allowed, although it should be allowed.

MR BROUN:   It had the same effect as that but, in our submission, the Full Court was entitled to have regard to the events that had occurred since.

KIRBY J:   Could you summarise those intervening events that you say, at the end of the day, would mean relief to the present applicant would be misconceived, or would not be given, that he would not win in the end, therefore we should not go through this process?

MR BROUN:   Your Honour, the subsequent events were a series of further enforcement applications before a single judge during the following three years, from 1995 through to 1998, or indeed into early 1998.  Then there was two other appeals, both of which were dismissed.  There was this ‑ ‑ ‑

HAYNE J:   What is the significance you attach to those intervening events?  They happened, but why do they matter?

MR BROUN:   First of all, because of the long delay, the prejudice to the wife, her ‑ ‑ ‑

GAUDRON J:   We need that in detail.

HAYNE J:   Exactly.

MR BROUN:   The wife was suffering from very great stress, and that had been one of the factors which Justice Finn had taken into account and which he refers to in her judgment refusing to set aside.

GAUDRON J:   Was there evidence before the Full Court of the impact of stress in the event that the appeal were to be allowed, and would it have been relevant?

MR BROUN:   Your Honour, indeed it would, because the respondent’s hardship must also be considered.  Justice is not a one-way street.  The hardship to the wife is also a matter which has to be considered by a court in considering the hardship to the husband.

GAUDRON J:   There is a real question, I should have thought, whether that is a matter to be considered in the exercise of a discretion in circumstances such as this.  Where what you are looking at is, in effect, a failure of the judicial process.

MR BROUN:   No, your Honours.  What I would submit is that what we are looking at is a failure of a party who takes upon himself the responsibility of being unrepresented, and who takes upon himself the obligation to deal with the court’s processes, just not doing so.

GAUDRON J:   Nobody seriously suggests that, of 15 June or 14 June, having had a triple by-pass operation some 10 days before, he could adequately present his case.

MR BROUN:   Your Honour, what he could have ‑ ‑ ‑

GAUDRON J:   What you are complaining about is that he was not represented.

MR BROUN:   Is that he did not pick up a telephone and ring one of the two solicitors who had acted for him before, or a new solicitor.  There had been, prior to this occasion, prior to the date when the matter was listed for a pre‑hearing conference which he, we submit, ignored, he had ‑ ‑ ‑

HAYNE J:   That is an argument that goes against the Full Court judgment which you seek to support.  That is an argument which says the Full Court was wrong to conclude that the original judgment should have been set aside.

MR BROUN:   Your Honours, that would certainly be an argument that we would advancing.  We would support the initial judgment of Justice Finn and the view of Justice Lindenmayer.  But if we were wrong about that then, we submit, the majority of the Full Court got it right anyway by saying, looking at the three years since, and all of the litigation in that three years and all of the various defaults by the husband during that three years, and two other nugatory appeals during that period ‑ ‑ ‑

KIRBY J:   Is your proposition that, instead of diverting himself into all these foolish appeals that he did, and pursued with vigour, he should have been mounting his application to set aside the judgment of the Full Court and have the property hearing re‑heard?

MR BROUN:   Yes.

KIRBY J:   And instead of taking three years to do that, he diverted himself into all sorts of foolish and ultimately unsuccessful applications?

MR BROUN:   Indeed, yes.

KIRBY J:   But of because people who are not legally represented sometimes do not see the priorities, this is the major problem - - -

MR BROUN:   Your Honour, he was re‑represented again later.  In the subsequent enforcement proceedings, he was represented.

KIRBY J:   Are third party interests, had they been adversely affected, or would they be adversely affected if the property settlement were re‑opened?

MR BROUN:   Your Honour, the relevant property has been sold, pursuant to the enforcement orders made some years ago now, and the proceeds are sitting in a trust account awaiting the termination of this matter.

KIRBY J:   So they would be still available.

GAUDRON J:   They have not been invested?

MR BROUN:   I assume so.  I have not checked that.

GAUDRON J:   Well, I wish to know.  I think your solicitor is in Court, Mr Broun.

MR BROUN:   Yes, they are invested at interest, I am instructed, your Honour.  But your Honours, the ‑ ‑ ‑

KIRBY J:   So there is no third party interest that is involved that would be disturbed in a way that could not be adequately repaired by orders directed to that fund?

MR BROUN:   Your Honours, it is not an enormous fund.  It is some hundreds of thousands of dollars, but it is not an inexhaustible fund.  But there are no third party interests of any significance.

HAYNE J:   Mr Broun, can I say this to you.  The point that worries me most in this case is, what significance, if any, is to be attached to what you describe as the delay, that is, the lapse of time?  Lapse of time of itself is simply a fact.  What significance do we attach to it?

MR BROUN:   The continuing stress on the wife.  The continuing litigation.  One would have thought there ought to be some line drawn at some stage and say, “This man has had enough opportunities.  There have been enough delays.  The court cannot keep on looking after him forever - the delays”.  But also, your Honours, the further delays that will occur.

HAYNE J:   But the hypothesis is that this man did not get a right answer at first instance.  That is what the Full Court’s hypothesis was.

MR BROUN:   Yes, but your Honours, not to find that it was an order that was way out, but that there may have been a few adjustments.  Justice Finn, on the application to set aside the judgment which is the judgment, at first instance, which leads up to here, considered what the husband said as to what the impact of his evidence might be, and it was not a very large percentage or a very large sum of money.

KIRBY J:   Yes, but you say it was not way out, but the majority in the Full Court said that the case overwhelmingly called out for the favourable exercise of the discretion – overwhelmingly calling out for it.  Our judicial process in Australia just passes it by.

MR BROUN:   Your Honours, it passed it by because there was somebody seeking to take the benefit of that who had, as it were, further lost his opportunity and done in the next three years what he had done in the period leading up to the judgment, namely, sometimes being represented, sometimes being unrepresented and not doing what the courts directed him to do, repeatedly; not doing what he was ordered to do; not doing what the rules required him to do.  There must be a point where the party who is sticking to the rules, doing the right thing, gets the matter determined and finished.  But could I emphasise to your Honours that if your Honours were disposed to grant leave, and if an appeal was heard and if the appeal were to be allowed, then we go right back to step one where we were in 1993.

GAUDRON J:   There are other alternatives.  There is the possibility that parties may see it is in their own best interests to effect a compromise.

MR BROUN:   Your Honour, it takes two parties to compromise unfortunately and, so far, in six years of litigation, from 1993 to 1999, that has not occurred or got anywhere near it.  So, in our submission, that would not be something that the Court ought to take in mind.  But I would ask the Court to keep in mind the six years that my client has already had to put up with this and the further substantial period which will necessarily elapse if the matter came to this Court and then went back for re‑hearing.

KIRBY J:   It seems to me the factor that most weighs in your favour is not so much the stress on your client.  I think in family law matters, unfortunately, stress is on both parties.

MR BROUN:   Of course.

KIRBY J:   Nor the injury to third parties, because it is in a fund and it awaits disposition.  The factors are, first of all, whether or not the action of the applicant in proceeding up and down every alley for three years, sometimes with legal representation, is something which now should be taken into account in saying, “Well, if he had only expended a bit of his effort in making an application in a timely way, to have the property orders reconsidered”, then that could have been done in a way that was just to both parties.  But now it is unjust.

MR BROUN:   Yes.  And, indeed, your Honours, had he turned up on this appeal the first time it was listed, before it was deemed to be abandoned by

his non‑appeal.  Your Honours, I see my light is on.  Unless there is any other matters that I can particularly assist your Honours with.  Thank you.

GAUDRON J:   Thank you, Mr Broun.  Yes Mr Allesch.

MR ALLESCH:   Your Honours, I am seeking special leave to appeal in a number of issues, as stated in my submission.

GAUDRON J:   You cannot.  There is only one issue in this case.

MR ALLESCH:   And on page 49 of the application book, I would suggest.  I do not wish to waste the Court’s time on the individual issues, since there is simply not enough time for it anyway here.  Therefore I will briefly only relate to some relevant details to provide your Honours with a broader picture of the matter before you.

GAUDRON J:   We have a broad picture of it.  You have, in your advantage, a decision of the Full Court which says the order should have been set aside, but because of intervening events, it will not be.  You really should address yourself, if you would not mind, to the question whether intervening events are such as to preclude the grant of special leave.

KIRBY J:   Three things were mentioned.  The first was the stress on the respondent.  The second was the fact that the funds have already been paid into an account, and they are not all that much, and that this is going to lead to more litigation and costs.  The third, and most important point in my mind, is that you took all of those proceedings, sometimes with legal representation, instead of going ahead promptly, if you were really disturbed about the matter having been pressed on when you had had your by‑pass, then seeking promptly to have the Full Court set the order aside.  But instead you waited for three years.  Why is it just to allow you to come back three years later?

MR ALLESCH:   It is not exactly that I waited three years, your Honour.  Even Justice O’Ryan, when he allowed me to reinstate my appeal, if you like, he said that at all relevant times the applicant participated.  Now, he found that.  That was one of the reasons why he reinstated my appeal.  I have also given reason why I have not turned up at the appeal that, at that time, I was, again, suffering badly because I had an infection and I was, in fact, had to get back to the hospital again.

Shortly thereafter, I went and saw a solicitor to try and reinstate that appeal for me, and that solicitor was instructed by me to get on with it.  Twelve months down the road - almost 12 months down the road - I find that the file of that particular solicitor was empty and when this matter come up then before the court, my money returned.  What else am I to do?  I was not physically well enough to take it on at that time myself.  I was, again, disappointed with the conduct of that solicitor, simply not performing what he is supposed to be performing for me, which left me no other option than to try and resolve this matter myself.  There was clearly, on my part ‑ ‑ ‑

KIRBY J:   But why did you not proceed to the Family Court, the Full Court, and say, “I want to have the matter that was heard when I was having a by-pass and recuperating six or nine days later, heard quickly”, instead of pursuing all the other applications?

MR ALLESCH:   Your Honour, actually, if I may, on 1 May there was evidence before her Honour by telephone, right, that I had in fact been hospitalised.

KIRBY J:   No, we are not talking – we are talking after that.  After the order was made - - -

MR ALLESCH:   But may I just make that point because I think it is very important.  There was verbal evidence before her Honour in court by Mr Carpenter, the registry manager, that I had phoned them that day, of the Family Court on 1 May 1995, the applicant was being admitted to hospital with a heart attack.  Mr Carpenter’s request for and on behalf of the applicant to adjourn this matter was denied by her Honour Justice Finn.  She knew on the day, on 1 May, and if I may draw your attention to page 21 of the application book, lines 13 to 17:

AND UPON HEARING Mr Cush on behalf of the wife and there being no appearance by or on behalf of the husband but the Court having received oral evidence from the Registry Manager of this Registry that he had received a telephone communication from the husband advising him that the husband had had to go to hospital and would be unable to attend Court –

KIRBY J:   Yes, but this is not addressing the matter that concerns me which is that the order was made and, in the opinion of a majority, overwhelmingly ought to have been set aside, but you took three years to move the Full Court to do so.  Now, why was that?

MR ALLESCH:  It is not that it took me three years, your Honour.  I have just explained the lapse of the first appeal which I, by the way, found rather late because the instruction at the time when I was ill – and I had to contact a solicitor in Sydney which I requested to set the original orders aside.  Now, if I just may briefly take you to that issue there.  My submission is that on 10 August 1995, following an undefended ex parte hearing of 14 June, the judgment and orders were served on the applicant on 17 August 1995, did not come into force because in her Honour’s reason for judgment, her Honour said, and I draw your attention to page 27, line 32:

I considered that no real injustice would be done to the husband if I were to proceed to hear and determine the wife’s application, and then to allow a short period of time to elapse after service of the orders on the husband in which he could apply to have the orders set aside – a course which was not opposed by Counsel for the wife.

Accordingly, I proceeded on 14 June 1995 to hear the wife’s application for final property settlement orders on an undefended basis, but also on the basis that the husband would have a short period of time before the orders made as a result of that hearing came into force in which to apply to set them aside.

That was the basis.  Now, I draw your attention to page 48.

KIRBY J:   The emphasis is on the short, “short period”.

GAUDRON J:   The orders came to your notice.  They were served on 17 August.  When was application made to set them aside?

MR ALLESCH:   The application to set them aside was lodged on 24 August.

GAUDRON J:   And that was then dismissed in September 1995.

MR ALLESCH:    Actually, this is my argument, again.  Because if you go to the actual appeals, and the interpretation on Order 32 says an:

appeal means an appeal to a Full Court of the Family Court of Australia;

appeal registrar, in relation to an appeal, means the Registrar at the appeal registry for that appeal:

regional appeal registry means:

(b) in relation to an appeal from a decree made in Canberra –

was at the Sydney registry.  Your Honours, can you explain why this matter was, again, heard by the same Justice Finn in ‑ ‑ ‑

GAUDRON J:   That is not the point.  You will best advance your case if you concentrate on what happened after you applied to have the order set aside.  It does not matter how things happen but what happened.

KIRBY J:   Just assume for the moment that that  ‑ ‑ ‑

MR ALLESCH:   Nothing happened.

GAUDRON J:   Well, there was a hearing.

MR ALLESCH:   There was a hearing by the same judge going over her judgment again, which I would think is ‑ ‑ ‑

GAUDRON J:   Yes, it does not matter what you think about that.  That is not an issue in these proceedings.  You will not help your case by trying to sweep up side issues.

MR ALLESCH:   That is not actually a side issue, your Honour, because I think it is a conflict of interest.

KIRBY J:   You will not be told.  The fact is that, there is nothing in that argument. We are trying to direct you at the things that will help your case.

MR ALLESCH:   Right.

KIRBY J:   Now, her Honour made that order on 18 September.  What did you do then?

MR ALLESCH:   Then the solicitor proceeded to have an appeal lodged in Sydney.

KIRBY J:   That was on 4 October.

MR ALLESCH:   That is right.

KIRBY J:   A notice of appeal.  But some how Justice Rowlands issued an order for possession on 20 October.

MR ALLESCH:   That is right.

KIRBY J:   That was executed in November.  There seemed then to have been a bit of a drift.

MR ALLESCH:   Sorry.

KIRBY J:   It took an awful long time then for the matter to be heard.  Is that just a normal process of the appeal?

MR ALLESCH:   It took a long time before the matter came on.

GAUDRON J:   And then you did not appear when the matter came on?

MR ALLESCH:   No.  I was asked – an unreasonable sum at the time there‑ I have not been able to work since I had the by-pass operation.  My funds were dwindling, I could not afford the amount of money and I could not personally appear because I was ill at the time to go personally, myself, down to Sydney in that appeal.

KIRBY J:   Were these facts drawn to the notice of the appellate court?

MR ALLESCH:   They were not drawn at the time there, but shortly thereafter when I got out of hospital again, I approached ‑ ‑ ‑

KIRBY J:   You cannot just expect courts to proceed, or knowing the mysteries of your illness, if you do not bring that to the attention.

MR ALLESCH:   The mystery of an illness was never a mystery, really.  Because I did everything I could to advise the court, and truly it was a simple thing, just give me an adjournment, because I asked for an adjournment.  Now, if I am representing myself, am I not in a position, on a legal point here, that I can ask a third party to say, “Well, I need an adjournment.  I cannot appear for myself”.

KIRBY J:   And this was at the appeal?  You asked for an adjournment of the appeal?  You sent a message?

MR ALLESCH:   No, I asked for an adjournment already, before the proceedings came before Justice Finn.

KIRBY J:   We have gone way past that now.  We are looking at the appeal.

MR ALLESCH:    Yes, I know.  Your Honour, I did not.

KIRBY J:   So that you just let the matter proceed in your absence.

MR ALLESCH:    I was ill at the time, there, your Honour.  By the time I was well enough again to realise what went wrong, I then immediately tried to reinstate that appeal, but I failed because the solicitor never did his job.

KIRBY J:   The result is that three years passed, but now you are trying to breathe life into something which, on the face of the record, was dead.  The order is made by a court, a superior federal court.  You appealed.  You did not turn up.  Orders affirmed.

MR ALLESCH:   Your Honour, the court actually never dismissed the appeal.  The court actually deemed it to be abandoned.

GAUDRON J:   And you applied to have it reinstated?

MR ALLESCH:    I applied to have it reinstated.

GAUDRON J:   And you were successful.

MR ALLESCH:   But I was successful, your Honour, yes, to get it reinstated.  Now, I already at the time there - why there was also some confusing time because in court, the solicitor for the respondent said that my appeal was dismissed, whilst my appeal was never dismissed.  When I phoned up the registry in Sydney they said, “No, it was not dismissed.  It was deemed to be abandoned.”, whilst the solicitor in court stated and misled the judge and said it was dismissed.

KIRBY J:   Still, the fact is that three years passed between the time of the original order and the time the matter came back before the Full Court.

MR ALLESCH:   Your Honour, with respect, you know that the courts have a rather longish waiting list before you get on.

KIRBY J:   Longish, but not as long as that.

HAYNE J:   Which means that parties ought to attend when cases are fixed for hearing, Mr Allesch.  That is not an argument that helps your case at all.

MR ALLESCH:   Your Honour, I take you then, if I may, to the basic human rights issues which I am saying have been violated.

GAUDRON J:   No, I do not think you will help your case by doing that.  We understand those ‑ ‑ ‑

KIRBY J:   I think we understand your assertion that you had to have justice.

GAUDRON J:   There is only one issue in this case and that is whether the Full Court should have dismissed your appeal, even though it said the order should have been set aside.  That is the only issue in this case.

MR ALLESCH:   The issue of my basic human rights under the Convention of the United Nations is irrelevant, where these rights have been breached, where the government is in ‑ ‑ ‑?

GAUDRON J:   You can assume, Mr Allesch, that those basic human rights inform the court the proper process of courts, and that in so far as the Full Court said the decision should have been set aside, that was to a large extent based on similar considerations as to human rights.

MR ALLESCH:   But why was it never set aside?  This is what I cannot understand.  If it was on the basis ‑ ‑ ‑

GAUDRON J:   Exactly.  Now, that is the issue.  That is the only issue.  Just excuse me.  Mr Allesch, I wish to talk to you about another aspect.  If this Court were minded to give you special leave, it would not, of course, make it a condition that you be legally represented.  But I trust you do understand that your case would be better served in this Court by being represented by experienced counsel.  Is that a matter you accept?

MR ALLESCH:   That is a matter I would have to contemplate.  But I have, up until now, your Honour, been greatly disappointed, and there are reasons behind it, by the legal profession in the performance of their duty.  That is why I have taken it upon myself to appear, since it also appears to be a right that an individual can appear before a court ‑ ‑ ‑

GAUDRON J:   It is right, but it is not necessarily the best way of advancing your cause.

MR ALLESCH:   Your Honour, if I may.  I may not be as eloquent in putting my arguments, but surely we have here some fundamental breaches, your Honour.  Whether one would admit that or prefer not to admit that, surely justice must be served somewhere along the line.

KIRBY J:   Of course it must, but it is a question of the assistance the Court will get in looking at the principles of law in the cases, the decisions which it has given, and the decisions other courts have given, that help it to become efficiently to a resolution of your case.  That is why Justice Gaudron has said to you that you should consider very carefully, in this Court, because there is no doubt that whoever appears in this Court will do their best.  The Court makes sure of that.  You should give consideration to having counsel appear for you here.  It would help the Court and it would ordinarily help you.

MR ALLESCH:   I shall consider it then.

GAUDRON J:   Yes.  In that regard you might find it convenient to speak to the Registrar of this Court to indicate what consideration you have given to the matter, because it is proposed to grant you special leave in this case, but it is a matter that will have to be progressed expeditiously and the grant of special leave should not be seen as an impediment to some attempt by the party to effect an compromise of the issues.

KIRBY J:   I do not know if Mr Broun wished to put on the record any matters in reply to the matters that were said.

MR BROUN:   The only matter that I think perhaps your Honour should be specifically directed to is on the fourth page of the chronology page, page 156 of the book.  Because on 15 June 1997 when Mr Allesch was actually represented by a solicitor, there were some consent orders made as to the enforcement and, in fact, it was pursuant to that order that the property was sold.  So that there were, not only periods when he was unrepresented, but periods when represented, when he was nonetheless fully aware of the orders that had been made and their impact on him.

GAUDRON J:   There is one other matter, Mr Allesch.  Leave is granted confined to grounds dealing specifically with the reasons why the Full Court declined to set aside the order of Justice Finn.  That being the only issue of law that is directly presented by the case, and that being in accordance with the normal procedures of this Court to require people ‑ ‑ ‑

MR ALLESCH:   Specifically why the Full Court failed to set that aside.  Is that what you are saying?

GAUDRON J:   Yes.  The Court will now adjourn briefly to reconvene in connection with Perth.

AT 10.49 AM MATTER WAS CONCLUDED