Benecke v The National Australia Bank Limited

[1994] HCATrans 199

.. ·~1'

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S52 of 1993

B e t w e e n -

GLORIA CONSTANCE BENECKE

Applicant

and

THE NATIONAL AUSTRALIA BANK

LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J GAUDRON J

Benecke(2) 19 11/2/94

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 1994, AT 12.02 PM

(Continued from 19/11/93)

Copyright in the High Court of Australia

MR M. HASTIE:  I ask for your leave to answer any questions

for Ms Benecke.	Ms Benecke is not capable of doing
it.

MR W.H. NICHOLAS, QC:  I appear with my learned friend,

MS P.A. BERGIN, for the respondent. (instructed by

Mallesons Stephen Jaques)

BRENNAN J:  Ms Benecke is here?

MR HASTIE: Yes, Your Honour.

BRENNAN J:  And you wish to speak for Ms Benecke?

MR HASTIE: Yes, Your Honour.

BRENNAN J:  Mr Nicholas, what do you have to say about

Mr Hastie's appearance for Ms Benecke?

MR NICHOLAS:  Your Honour, we do not consent to it but would

accept that it is a matter entirely for the Court.

I do not want to take time.

BRENNAN J:  Ms Benecke is here, is that so? You are

Ms Benecke?

MS BENECKE:	Yes, I am, Your Honour.
BRENNAN J:	Ms Benecke, do you wish Mr Hastie to speak for

you?

MS BENECKE:  Yes, I do, Your Honour.

BRENNAN J: Very well. Mr Hastie, it will be a matter for

you then to tell us why it is that special leave

should be granted in this matter.

MR HASTIE:  Thank you, Your Honour. Your Honours would have

read application books volumes 1 and 2 and our

summary of argument. We rely upon those documents

in our case for special leave. However, we would

like to expand on the following.	As to the special
misrepresentation of the material before	leave questions, we rely on the serious Ms Beazley, QC, the Commonwealth Bank diary note, the affidavit of Mr McLennan as to the total inadequate discovery of the documents by the National Australia Bank, the lack of preparation on the most material part of the applicant's case, the
interpretation placed by His Honour Justice Giles
on the alleged deficiencies in Ms Benecke's case,
which was entirely wrong, and he used that evidence
against Ms Benecke in bringing his judgment down against her.

Benecke(2) 20 11/2/94

The other special leave questions we would

like to raise are the consent settlement, the undue

influence and the fiduciary duty. The last

question that we would like to raise is the conduct

of Ms Benecke's solicitor, Mr Peter Jackson. In

short, the facts to support the special leave

questions are: the unsworn statement of counsel,

Ms Beazley, QC. His Honour Justice Giles said

there were to be no surprises at the trial and

because at the time we were litigants in person,

not because of choice but because of necessity, he

made orders that we file by 30 October all

affidavits and evidence in relation to the trial

that we were to rely on. If there were to be any

other affidavits that could not be filed by that

date, there was a list to be made on that 30

October so he knew what was going on.	We did that;
the Bank did not.

Then into the second day of the trial we were

advised that a statement from Ms Beazley, QC - we

did not know at that particular point that she

would be appearing on behalf of the Bank. She was

but one was handed to us after the adjournment was

fonnerly Ms Benecke's counsel in the fonner trial.

sought and a second one was given to us that

evening of the second day. The difference between

the first and the second unsworn statements were

only that, in the first unsworn statement, it said

that Ms Beazley and Mr Jackson consented to the

consent settlement. In the second unsworn

statement that was handed to us that afternoon,
that was deleted and "Ms Benecke consented to the
settlement" was put in place.

As to the facts of the Commonwealth Bank diary note, on the fourth day of the trial, in the late

morning, the National Australia Bank counsel

stopped the proceedings and asked Justice Giles if

he would issue a subpoena for production.

His Honour granted that subpoena without hesitation

and the Commonwealth Bank's solicitor was sitting
in the court and was brought forward and accepted

and His Honour allowed it into the case

unqualified.

The facts in regard to the affidavit of

Mr John McLennan as to the inadequate discovery of

the Bank's documents, I refer Your Honours to

volume 2, pages 191 to 220, and that specifically

outlines what was missing in the Bank's discovery.

GAUDRON J:  How does that bear on the issues in this case

which - - -

Benecke(2) 21 11/2/94

MR HASTIE: In the amended summons that we filed before

Justice Giles we said that - we put a statement in

there pleading that because the fact that

Mr McLennan's affidavit was not allowed into

evidence by Justice Giles, we claimed that it

seriously stopped vital evidence going in as to the

Bank's discovery.	Now, if the Bank's
discovery - - -

GAUDRON J: But how did the Bank's discovery in the first

case bear on the issues before Mr Justice Giles?

MR HASTIE: Because it is our claim that had the full

discovery been given, had Mr Jackson taken on board

what was given to him in relation to the discovery,

then the issue would have been no consent
settlement or they should never have consented to the settlement because they would have known that in there, particularly the $600,000 and the

$200,000 - the $600,000 was the foreign negotiated

bill facility, the $200,000 was the overdraft - the

Bank manager, on a sworn statement, denied that he

gave those limits for the business when in fact it
shows now that the liability cards were not

discovered, which gave a daily register of what was

going in and out of the foreign negotiated bill

facilities, so it did affect the fact, in our mind,

that if that discovery had been given - - -

GAUDRON J:  The issue is not what affects facts in your

mind, the issue is one of relevance in the

proceedings and for my part, I cannot see how it

has any bearing on the matters before

Mr Justice Giles.

MR HASTIE:  The affidavit of Mr McLennan was used in the

amended summons in support of "There is prima facie
evidence that the solicitors for the plaintiff
acted in concert with the defendant Bank, contrary

to the instructions from the plaintiff and ..... of

the best interest of the plaintiff". Furthermore,

we claim in the amended summons, "The solicitor,

Peter Jackson, deliberately failed to file and present to the trial judge vital evidence in

accordance with my instructions" - that is

Ms Benecke's instructions - "and in accordance with

his personal assurance that he had done so".

BRENNAN J:  Mr Hastie, you are here seeking special leave to

appeal from a judgment of the New South Wales Court

of Appeal. We are not here to retry a case that

has already been tried by the New South Wales

Supreme Court. Unless you can demonstrate that

there are some questions which justify the grant of special leave to appeal from the Court of Appeal to the High Court, then there is no purpose in taking

us through a mass of evidence which you think might

Benecke(2) 22 11/2/94

have assisted you, if only it had been looked at

somewhere else.

MR HASTIE:  Your Honours, I refer you to the consent

settlement.

BRENNAN J:  Do you propose to say anything about the

judgment in the Court of Appeal?

MR HASTIE:  Yes, Your Honour, we feel that the evidence we

have put forward in the application books and the

summary of argument, that it does, given those

circumstances, show to you that the decision from

the Court of Appeal was wrong and the judges should

have taken on board the fact that these were

relevant matters.

The points of fiduciary duty, the undue

influence, and we consider that the conduct of

Mr Jackson in this matter were matters that the

judges of the Court of Appeal should have taken

into consideration. They were put before them and

those reasons were given to them as to why it

should have been overturned.	We feel that there
has been a very grave injustice.	I can say no
more.	We rely on the evidence we have put through

to you and ask you to take that into consideration.

I am standing here, I am not a qualified lawyer,

and - - -

GAUDRON J:  You must understand, Mr Hastie, we are

concerned to see if there is legal error in the

Court of Appeal.	We cannot embark upon a factual
inquiry for ourselves.	You must understand that;

so that if you point to legal error in the Court of

Appeal, then you must do so now. We cannot do it

for ourselves. But certainly we cannot embark on a

fact-finding operation.

BRENNAN J: In the appellate jurisdiction of this Court,

Mr Hastie, this Court does not have the capacities

or the function of endeavouring to examine for

itself anew, by accepting fresh evidence, any case

which could have been argued in other courts. We

can consider only errors in the judgment of the
court from which the appeal is brought. That is

the limit of our function.

MR HASTIE:  I understand that and, as I say, we rely on

those documents that are with you as our argument

as to why we should be given special leave.

Ms Benecke, at no time, consented to that alleged

consent settlement. The facts are before you and

that is all I can say at this point of time.

BRENNAN J: Thank you, Mr Hastie. In those circumstances,

we do not need to call on you, Mr Nicholas.

Benecke(2) 23 11/2/94

The applicant seeks special leave to appeal

against a judgment of the New South Wales Court of

Appeal dismissing her appeal against an order made by Giles J. dismissing the applicant's summons to set aside or to have declared void a settlement of

earlier litigation. Nothing that appears in the

filed material nor any submission made here today

affords any ground for the grant of special leave

to appeal. The questions of fact have been decided

against Ms Benecke and no error of law appears on

the face of the judgments delivered in the Court of

Appeal. The application for special leave must

therefore be refused.

MR NICHOLAS: I would seek an order for costs, if

Your Honours please.

BRENNAN J:  What do you have to say about the application

for costs, Mr Hastie?

MR HASTIE:	We oppose it, Your Honour.
BRENNAN J:	On what grounds?
MR HASTIE:	On the basis that we consider that the Bank has

been absolutely wrong in what they have done to

Ms Benecke and the way that it has happened. She

is now destitute and on a pension because of what

has happened and she should have been entitled to

her day in court, and she has never had that.

Thank you, Your Honours.

BRENNAN J:  The order is that the application for special leave will be refused with costs.

AT 12.17 PM THE MATTER WAS ADJOURNED SINE DIE

Benecke(2) 24 11/2/94