Benecke v The National Australia Bank Limited

[1993] HCATrans 364

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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

For directions

GAUDRON J

(In Chambers)

Benecke(3) 1 3/12/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 DECEMBER 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR M. HASTIE:  Your Honour, Mr Hastie, asking for leave to

speak for Ms Benecke this morning?

MR V. STEFANO:

I appear for the respondent. (of Malleson

Stephen Jaques)

HER HONOUR:  Is there any objection to that?

MR STEFANO: There ordinarily would be but I think, in the

circumstances, I will leave to the Court.

HER HONOUR:  Thank you. Yes, Mr Hastie.

MR HASTIE:  Thank you, Your Honour. Ms Benecke is ill and I

do have a medical certificate to hand up and also a

letter from her in regard to authorizing myself to

speak on her behalf this morning.

HER HONOUR:  Yes, very well, you may hand that up. Do you

wish to see it, Mr Stefano?

MR STEFANO:  I have not seen it. If I could see it.

HER HONOUR:	Show it to Mr Stefano first.
MR STEFANO:	There is a good deal of material in here that

is irrelevant, Your Honour, I must say.	We would
object.

HER HONOUR:	You object?
MR STEFANO:	Yes, Your Honour.
HER HONOUR:	Perhaps you had better outline the nature of

your objection, Mr Stefano.

MR STEFANO:  The first letter is a letter from Dr Stubbs. There is no objection to that letter. The other

letter is long and is to raise allegations of

harassment is firstly resisted and secondly, there

is a letter from Mr Hastie's solicitors in other

proceedings which is attached which encloses a

"without prejudice" communication from ourselves to

Mr Hastie's solicitors in the context of those

proceedings.

HER HONOUR:  Yes, thank you. Mr Hastie, they do not seem to

have very much to do with the purposes of today's

listing, do they?

MR HASTIE:  Your Honour, it is what Ms Benecke asked to be

put forward.	The first one is the doctor's
certificate.	The second one is just, at the bottom
of the page -

Benecke(3)	3/12/93
HER HONOUR:	The doctor's certificate goes to your having

leave to speak on her behalf today.

MR HASTIE: That is correct.

HER HONOUR:  I will accept the doctor's certificate. Now,

how do the others bear on your leave to speak for

Ms Benecke today?

MR HASTIE:	It is a letter from Ms Benecke to yourself.
HER HONOUR:	No, Ms Benecke has asked for you to speak on

her behalf, has she not?

MR HASTIE: Yes.

HER HONOUR:  Yes, all right. Well, you have made that

request. Now, the reason this matter is listed

today is to ascertain what is happening with the

legal aid.

MR HASTIE: That is correct.

HER HONOUR:  And that is the only reason that it is listed.

MR HASTIE: Right.

HER HONOUR:  Yes. All right, I will accept the certificate

from Dr Stubbs but otherwise I think the material

has nothing to do at this stage with the matter.

MR HASTIE:	Thank you, Your Honour.
HER HONOUR:	What is happening with the legal aid?
MR HASTIE:	I have spoken with Legal Aid twice this week and

the last occasion was just after 4 o'clock

yesterday. The committee has met and the

determination will not be given until Wednesday at

the latest.

HER HONOUR: At the latest or at tbe earliest?
MR HASTIE:	I asked for the determination for today and I

have been told that I cannot get it today and at the latest I will have that answer is Wednesday.

HER HONOUR:	The committee has met?
MR HASTIE:	The committee has definitely met.
HER HONOUR:	And there will be a determination by Wednesday?

MR HASTIE:  Wednesday. Mr Stefano has just told me that he

has heard that it has been refused. I do not know

how he could have got that information because we

have had no information at all.

Benecke(3)	3/12/93
HER HONOUR:	Very well.
MR STEFANO:	I was told that by Mr Tunbridge who,

Your Honour may recall, was the point of contact

that Ms Benecke and Mr Hastie informed us of when
the matter was before the Court on the last

occasion. Your Honour may recall that Ms Benecke

consented to us making that inquiry of Mr Tunbridge

at the time.

HER HONOUR:  Yes. What is the status of your information?

MR STEFANO:  I was telephoned by Mr Tunbridge on the 30th,

which was the Tuesday. He informed me that the

Legal Aid Review Committee had met on the previous evening, which is the Monday, the 29th, and that

legal aid had been refused. It is a matter of the matter standing in the list while a telephone call

is made perhaps.

HER HONOUR:  Very well, I think that might be appropriate.

Do you understand what is suggested, that you go and ring Mr Tunbridge?

MR HASTIE: It is out of Mr Tunbridge's hands. It is

Melissa from the review committee who I spoke to

the latest, as I say, 4 o'clock yesterday, and I

asked her if Ms Benecke could contact her to get

the answer and she said no, it cannot be and, in

fact, that we would have the answer by Wednesday at

the lastest. That is the only information I got.

Yesterday, I could not get hold of Mr Tunbridge in

the morning and that is why I went directly to the

review committee. So, obviously, Mr Stefano knows

more about it than what we do.

HER HONOUR:  I think I will stand the matter down for half

an hour while you go and make some telephone calls.

That might be the best course.

MR HASTIE:  Okay then. Thank you, Your Honour.

HER HONOUR:  If you hear anything earlier than that, you can

indicate to the Registry. I will stand it down.

AT 9.39 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.52 AM:

HER HONOUR:	Thank you, Mr Hastie.
Benecke(3)	3/12/93

MR HASTIE:  Your Honour, we do have a bit of a problem. I

spoke, first of all, to one of the ladies in the

Legal Aid Review Committee and who put me on to the

secretary. The secretary informs me that,

(a), Mr Tunbridge has no right to give any

information out and, (b), that if anyone does give

any information out before the person receives it

they are liable to a $1000 fine and six months
gaol, and the point is that she will not give me

the information.

HER HONOUR:  I see. Did you explain to her that the matter

was

MR HASTIE:  I explained to her that I was in the Court with

yourself and she said she still cannot give out

that information, which - - -

HER HONOUR:	Very well.
MR HASTIE:	I have done the best that I can.

HER HONOUR: But, none the less, you will hear not later

than Wednesday?

MR HASTIE: Wednesday, that is true. She reconfirmed that.

Obviously there must be a decision that has been made but I just cannot get that decision

officially.

HER HONOUR:  Very well. Now, do you have any application

then to make?

MR HASTIE:  The only application I would ask, Your Honour,

would be that given the circumstances that the

matter stand in the list until I can inform your

Court exactly what is the position.

HER HONOUR:  That does not really advance matters at all,

Mr Hastie. As things presently stand, the special

leave application is listed for hearing for next

Friday. Do you understand that?

MR HASTIE:	Yes.
HER HONOUR:	Yes, that was the listing and, in the ordinary

course of events, it would proceed next Friday with

or without the grant of legal aid, that is to say,

in the ordinary course of events, if legal aid is

granted, it would be expected that you would be

represented and ready to make the application on Friday and if it is not granted, that Ms Benecke

would herself proceed with the application on

Friday.

Benecke(3) 3/12/93

MR HASTIE: Right. Given Ms Benecke's circumstances, I

think it would be virtually impossible for her to

present that application.

HER HONOUR:  The case cannot remain in abeyance

indefinitely.

MR HASTIE: Well, given the circumstances, Your Honour, I

would ask that the matter be adjourned until the

next application in the new year and -

HER HONOUR:	And what are those circumstances?
MR HASTIE: The circumstances are:	(a), that we do not know

officially what the legal aid decision is. Given

the circumstances that if the legal aid decision

was in the negative, research would need to be done

and we would have to try and get Ms Benecke to be

able to present her case. I just do not know how,

physically, that she could do it. It may be -

there is a lot of court precedents that will have

to be researched out for her and I would try and

obtain some form of legal representation. I do

have a letter here that has come from the

Attorney-General's Department where Ms Benecke has

endeavoured to try and get legal aid through the

Attorney-General's Department which I would like to

tender as well. She has done everything possible

to try and get - - -

HER HONOUR:  It is accepted that she has done everything

possible to get legal aid. The fact that she has

not got it, if that be the case, cannot be a matter

which determines whether or not the case proceeds.

I mean, the case must proceed.	The application has
been filed.	It must proceed and must be dealt

with. That is what has got to happen. Now, that

being so, the fact, if it be the fact, that there
is no legal aid, as such, cannot bear on the

matter.

MR HASTIE: Right. Well, all I can say at this particular

point of time - - -

HER HONOUR:  No legal aid or no legal representation either,

it does not matter, it has got to be dealt with.

MR HASTIE:  And if, in her present circumstances, whereby

the doctor wished to put her into hospital last

night because of her condition and she was not

available on next Friday, how would we proceed

under those circumstances?

HER HONOUR: Well, it would be dismissed unless the matter

is adjourned. But what indication is there that it

would be any different in February? You see, what

Benecke(3) 6 3/12/93

indication is there of that? The matter just

cannot remain in the list indefinitely.

MR HASTIE:  I appreciate that but I think that in the

circumstances - - -

HER HONOUR:  But what indication is there that the

circumstances would be any different in February?

MR HASTIE: There is one particular barrister who is not

available at the moment - Your Honour, as

Mr Abraham has just pointed out to me - he knows
Ms Benecke quite well - the mere fact now that her

animals have gone from the property may induce her

to get over the mental aspect - the two Shetlands

and two donkeys were sold without her knowledge and

the goats have been placed with other people and

this has been one of the main parts of her medical

history, is the fact that she suffered this mental

trauma through the animals, and as you can see from
the doctor's certificate, this is what has brought

it on in the last week, that the donkeys and

Shetlands were sold and gone to places that we do

not know about. We went down to pick them up on

the Saturday and they had been sold the previous

day while she was here in the High Court, and she

has just been absolutely distraught over it.

I realize that it does not get us past the

fact that we have somehow got to present this

application but - - -

HER HONOUR:  You have got to present it or have it

dismissed. I mean, that is the fact.

MR HASTIE: Given the circumstances that she is unable to

attend -

HER HONOUR: Well, she is unable to attend today. This

certificate, so far as I can read it, which is

not - - -

MR HASTIE: Pretty difficult.
HER HONOUR:	It does not say for how long Ms Benecke is

likely to be in that condition.

MR HASTIE:  I can assure you that she is in a very

distraught position at the moment.

HER HONOUR:  Yes, that may be so but we are talking about

next week.

MR HASTIE:  I would ask the Court's indulgence to hold it

over until the next application which I think is

the end of January.

Benecke(3)	3/12/93
HER HONOUR:	I think it is February, is it not?
DEPUTY REGISTRAR:	11 February.
MR HASTIE:	11 February, and come what may, we will proceed

on that basis.

HER HONOUR:  You will have to proceed if I accede to that.

There will be no possibility of any - if I accede

to it, but there would certainly be no possibility

of it going beyond that. Now, the only question is

is there, really, any good reason why it should not

proceed, come what may, next Friday?

MR HASTIE:  I think that given the circumstances with

Ms Benecke it is important that the application be

put on rather than be dismissed because of her

medical condition at the moment.

HER HONOUR:  Excuse me. The courts have got many - this

Court in particular - many other people.	The Court
has to work on the basis of justice.

MR HASTIE:	I appreciate that.
HER HONOUR:	And it is justice to all parties and all

litigants. Now, I think already this matter has

taken up far more time of the Court, at the expense

of other litigants, than would normally be expected
of such a case - of any case. It must be

understood other litigants are held out of court if

the time of the court is taken up without any

progress being made as has been the case in this

matter.

MR HASTIE:	I appreciate that, Your Honour.
HER HONOUR:	I will hear from Mr Stefano.
MR STEFANO:	We would submit that the matter should be

heard next week on Friday. That is raised by the

fact that an appeal to the Legal Aid Commission

being in progress would, one way or another, have
been removed by Wednesday. In other words, the

appeal would have been determined. There is no bar

to the Court proceeding to hear the matter.

Mr Hastie has, on behalf of Ms Benecke, made a

number of attempts to obtain legal representation

in one form or another from the Bar Association and

the Law Society and to the Legal Aid Commission.

Those attempts appear to have been exhaustive and I
do not think that it could be said that any further

time would bear a different result.

Mr Hastie also said that if Ms Benecke were to

be required to proceed with the matter on Wednesday

Benecke(3) 3/12/93

they would need time to undertake the necessary

research.	To that, we would say that the
application for special leave was filed in May.	It
is now December. There has been a long time to
attend to those matters.	It is quite clear from

the form of the application which has been amended

a number of times that a good deal of thought has

gone into it already. Whether or not one agrees

with what is raised in the papers, there has been a

good deal of thought there.

Lastly, so far as Ms Benecke's medical

condition is concerned, I think that we would ask

that that matter be dealt with by way of admissible

evidence and that the doctor be available to be

cross-examined on any affidavit that he may swear.

The history of this matter would justify us making that request.

The properties, the subject of the judgment of

Mr Justice Cole of June 1992, are in the process of

being marketed for sale and while, obviously, there

is no legal impediment to that sale, we would

submit that the cloud of further litigation is a

matter that affects the Bank's interests in having those properties sold at their best possible price

and indirectly, in fact, it affects Ms Benecke in

so far as there is a deficiency between the amount

that is recovered on the sale and the judgment.

They are matters that we would submit in support of

the matter being heard next Friday.

HER HONOUR:  Thank you. Mr Hastie, what do you say to those

matters?

MR HASTIE:  Yes, Your Honour. First of all, the application

Mr Stefano mentioned had been amended a few times;

it has only been amended the once. The other

thing: that if legal aid was granted on Wednesday -

if it was - would mean that the people who would be

appointed to it would only have one or two days to

prepare that particular case, so given that

understanding, it would mean that even ourselves

would not be able to research and do everything in

that particular time, if we had to wait until the

Wednesday to find out what had happened.

Mr Stefano mentions the properties being put

up for sale. That is being contested on the basis

of the invalid 57(2)(b) and at this point in

time -

HER HONOUR: At this point in time, the Bank has no reason

to stay its hand. It can sell them.

MR HASTIE:  That matter has been brought before one of the other courts, Your Honour. But I understand what

Benecke(3) 9 3/12/93

you say, right at this particular point in time

there is no impediment on that. I would ask

Your Honour to take into consideration the points

that I have brought up today and I would leave it

with you at this point in time.

HER HONOUR:  Yes. I think, in the circumstances, I will

stand the matter over until 11 February. I

indicate that in so doing I do it because of the

concern that further time will be lost to the Court next Friday by an application based on Ms Benecke's medical condition and, really, for no other reason.

Now, in that regard, I wish it to be understood

that come what may, whether there is legal aid or

no legal aid, whether there is legal representation or no legal representation, and quite regardless of

any evidence as to Ms Benecke's health, the matter

must proceed on 11 February. It does not seem to

me that the interests of justice require any

further time or could possibly justify any further

time regardless of Ms Benecke's condition. If need

be, somebody will have to speak on her behalf and

it s·eems to me that there is no reason to think

that that cannot be done as well by Mr Hastie as by

anybody else, should it come to that.

Now, is that entirely clear, Mr Hastie, that

there would be absolutely no basis on which it

could go beyond February?

MR HASTIE: Yes, Your Honour.

HER HONOUR:	I reiterate that what the Bank does is a matter for the Bank. There is nothing that this Court
would do to interfere with the Bank's rights in
this regard at this stage.
MR HASTIE:	Thank you, Your Honour.
AT 10.10 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 11 FEBRUARY 1994

Benecke(3) 10 3/12/93