Benecke v The National Australia Bank Limited

[1993] HCATrans 353

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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

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Benecke(2) 9 19/11/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1993, AT 12.13 PM

(Continued from 26/10/93)

Copyright in the High Court of Australia

MS G.C. BENECKE:  I am not very familiar, Your Honour, with

court procedures.	Your Honour, my name is
Ms Benecke.

BRENNAN J: Yes, Ms Benecke, and you are the applicant for

special leave in this case.

MS BENECKE: That is right, yes.

BRENNAN J:  Now, before you proceed, I will just take the

appearances of counsel who are appearing for the

respondent.

MR W.H. NICHOLAS, QC: If Your Honour pleases, I appear with

my learned friend, MS P.A. BERGIN, for the

respondent. (instructed by Mallesons Stephen

Jaques)

BRENNAN J:  Now, Ms Benecke, the ordinary rule of this

Court, as you may have been told, is that

applications for special leave which are concerned
with particular reasons why the Court should hear
appeals are usually entrusted to counsel who know
the way in which the law works and the principles

that the Court is concerned with. You are seeking

leave to appear to present your own application, I

gather?

MS BENECKE:  No, Your Honour. I ask that my application be

adjourned until my legal aid application is

determined. May I hand up my affidavit,

Your Honour, which outlines my application details

for legal aid?

BRENNAN J: Yes, certainly. Ms Benecke, this is the basis

on which you are seeking the adjournment, is that

so?

MS BENECKE:	Yes, Your Honour.
BRENNAN J: Well, we shall hear what Mr Nicholas has to say

about your application.

MS BENECKE:	Thank you, Your Honour.
MR NICHOLAS:	We object to it, with respect, Your Honours.

Your Honours, first of all we have not had the

opportunity, obviously, of testing the material in
the affidavit but the situation is, as far as we
can understand things, that this application for
leave has been effectively on foot since about
3 May of this year and it has been amended at least

on one occasion and, indeed, it was before the

Court, I think a month ago, on 26 October. When an

adjournment was sought on Ms Benecke's behalf by

Benecke(2) 10 19/11/93

someone who appeared for her, Mr Hastie, the ground

for the adjournment was then a medical matter.

BRENNAN J: There was also a reference to the Legal Aid

Commission, I see on page 6 of the transcript of

the proceedings.

MR NICHOLAS:  Of the transcript, yes, Your Honour, and it

was indicated then that an application had been

made. Now, as we understand it, Your Honour, the

fact that an application has been made is not, of

itself, a bar. It is if and when the application

is refused that the next step is thrown open,

namely, to apply to the appropriate body, the
review committee, for the review of that. Then, in

certain circumstances, the Court may be disposed to

adjourn the hearing of the matter until such time

as the outcome of the review has been determined.

But in order for the Court to make that decision it

would need to have, we would submit, evidence which
would satisfy the requirements of the section which

requires the Court to adjourn the matter.

Your Honours, we can hand up the sections of

the statute which deal with this. It is the Legal Aid Commission Act 1979 of New South Wales, and we

hand up copies of sections 56 and 57.

BRENNAN J:  Do you have a copy that Ms Benecke could use?

MR NICHOLAS:  Yes, Your Honour. Your Honours, it is

section 57, as Your Honours see the provision and

the various elements in it. Your Honours, what is

not clear to us, with respect, from this affidavit

is just really what is the situation in relation to

the application. Looking at paragraph 2 of

Ms Benecke's affidavit, it says:

on my behalf, lodged an application on Appeal

to the Legal Aid Commission -

Your Honours, it really is not clear to us - and we

are not seeking to play with words - whether there

is an application for legal aid, and if - - -

DAWSON J: It is a bit clearer by paragraph 4, Mr Nicholas.

MR NICHOLAS:  Yes, I see that. Your Honour, we, for our

part, would wish to be able to question Ms Benecke

to get evidence as to the steps that have been

taken in relation to the initial application, the

outcome of that and then the circumstances in which

the application for a review has been made and how

far that has gone. In any event, Your Honours,

assuming for the moment - - -

Benecke(2) 11 19/11/93

DAWSON J:  When you say that, you want to cross-examine her

on her affidavit, do you?

MR NICHOLAS:  Yes, Your Honour. But assume for the moment

that her evidence is to the effect that the

application for a review is under consideration. In our submission, it would still require her to

adduce evidence in support of the several matters under section 57 to entitle her to an adjournment in the circumstances.

GAUDRON J: I do not know about that, I must say. Just

looking at section 57, it might be a matter for

you. It might be a matter for you to point to

special circumstances, for example, under (c) or,

indeed, for you to establish that it is not bona

fide, the sorts of things that normally throw the

onus around the other way.

MR NICHOLAS: Certainly, Your Honour. But before we can do

that we would be entitled to have the opportunity

of questioning Ms Benecke as to the initial

situation. Your Honours appreciate, of course,

that we have had no notice of this until now and we

have had no opportunity, obviously, to seek access

to the relevant files or for people to let us have
access to information which would enable us to test

these matters.

BRENNAN J:  What is the facility available for a party to

litigation to make inquiries of the Legal Aid

Commission about the status of an application?

MR NICHOLAS:  I am fairly confident that we cannot do it,

Your Honour. Obviously, we would be able to subpoena the body to have the material produced to

the Court but I am fairly certain - I am not
100 per cent certain - that the body would not be
permitted to disclose to us - I am assured that

they will not and would not.

BRENNAN J: What, whether or not this matter is listed for

consideration by the Legal Aid Review Committee in

December?

MR NICHOLAS:	We have not asked that question, Your Honour.
BRENNAN J:	I appreciate that, but if you were to ask it, is

there any reason why they should not tell you?

MR NICHOLAS:  I do not know, to be quite honest with

Your Honour. I really do not know. We rather felt

that the appropriate course for us to take would be
to have the - first of all, we could perfectly

understand why they would not feel disposed to

answer our questions. Assume that to be the case

Benecke(2) 12 19/11/93

then, obviously enough, we would have to resort to

the subpoena process to get the material.

Could I just say something further,

Your Honour, if I may? I am really going back to

the matter which was before the Court on

26 October.

BRENNAN J: Before you proceed with that. Ms Benecke, do

you have a copy of the transcript of the

proceedings before the Court on 26 October?

MS BENECKE:	Yes, he would have it.
BRENNAN J: You have a copy of that.	Just so long as you

can follow what it is that Mr Nicholas is putting.

Yes, Mr Nicholas.

MR NICHOLAS:	Your Honour, I think the summary of it all can be seen at the top of page 7 when the Chief Justice
asked Mr Hastie, who was then speaking on behalf of
Ms Benecke, what the situation was in relation to
the application and he says this:

The original application was made mid-August. It was declined 9 September. It was received

on 16 September. The notice of appeal was

lodged on 5 October ..... In respect to

Mr Nicholas' query with regard to the New

South Wales Bar Association, the original

application was on 30 August and

communications led us to believe that we were

to be represented today, except we received a

letter on Friday morning, officially, from the

Bar Association to say they would not be representing Ms Benecke.

Your Honours, the application of Mr Hastie was to stand the matter over to a date in December when this Court would be taking special leave

applications.	I think it was either the first or
second week in December.	We pointed out to the

Court that tomorrow, namely 20 November, is a date

fixed for the sale of certain part of properties,

the subject of this litigation and, obviously

enough, there is no impediment to the sale going

ahead. But, nevertheless, one can appreciate the

desirability of having that embarked upon free of

litigation because the leave application throws up

matters relating to the proceedings which resulted

in the situation where my client is now entitled to

exercise its rights in the way that I have
indicated.

So, the Court then in October saw fit to bring the matter back today, not saying so in terms but

no doubt mindful of the fact of what I have just

Benecke(2) 13 19/11/93

put, the timing. So, Your Honours, that really is,

without taking Your Honours to the long history of

the matter, our principal concern: we have no had
the opportunity, obviously enough, of testing the

situation. I suppose, from a practical point of

view, it is very difficult to see how one can take

it a great deal further today. But that is the

situation, with respect, Your Honours, and hence we

say, really, for the Court to be disposed to grant

what really amounts to a second adjournment in the

circumstances, the Court would wish to be satisfied

that it is appropriate to do so.

GAUDRON J: But assuming that section 57 applies - I mean,

there may be an argument as to whether it is picked

up by section 79 of the Judiciary Act, but assuming for the moment it applies, would not a fair reading of that bring about the situation that it must be

adjourned unless - - -

MR NICHOLAS:	Yes, I would accept that, Your Honour.
GAUDRON J:	- - - you can point to special circumstances?
MR NICHOLAS:	I accept that but to enable us to get to the

special circumstances, Your Honour, the matters

that we would say we would be entitled to explore

would have to be looked at, I suppose. But, yes,

as Your Honour puts it to me, I have to accept

that, I think.

Your Honour, all I can say, I suppose, to put

the matter in its complete context is just simply
refer the Court to the way in which the

Chief Justice left the matter at the foot of page 7

and page 8, and it was obviously made in the

circumstances, we would say, that it was expected

that the application would be dealt with today and

that it ought to have been dealt with today.

BRENNAN J: Yes. Now, Ms Benecke, Mr Nicholas points out

that they want to check what is in your affidavit

and they would wish to do that with the Legal Aid Commission. What the Court is minded to do is to

adjourn this application until 2.30 this afternoon

in order to see whether Mr Nicholas can make a

successful inquiry of the Legal Aid Commission to see whether your application is proceeding before

that commission in the ordinary way and will be

heard in December.

MS BENECKE:  Right. Your Honour, we have endeavoured to do

this.

BRENNAN J:  Mr Nicholas, your solicitors can make that

inquiry?

Benecke(2) 14 19/11/93

MR NICHOLAS: Yes, Your Honour. I wonder, through

Your Honour, if I may, whether we can inquire if

Ms Benecke would assent to the appropriate body

disclosing the information to us and perhaps if she

could give us the name of the officer or officers

who have been dealing with it and we can move

immediately to check all that.

MS BENECKE:  Your Honour, can I speak to you for a moment.

We have gone everywhere to get assistance here

because I was cross-examined by this gentlemen for

7 hours until I was violently ill with no one to

interject and I do not want this again. I know I

have got to be represented otherwise it is suicidal

in here. Truly, Your Honour, we have done

everything we can.

BRENNAN J:  Ms Benecke, all we need to know at this stage is

whether you would be prepared to consent to

Mr Nicholas' solicitors making an inquiry of the

Legal Aid Commission with your approval so that you

would authorize the Legal Aid Commission to give

him the information about the matters that are in

this section 57 that he refers to.

MS BENECKE:  Yes, Your Honour, and the gentleman's name is

Mr Tunbridge.

BRENNAN J: Thank you, Ms Benecke. Please do not be

disturbed. We will adjourn the Court now in this

case so that you can be at peace until half past

two this afternoon and then we will resume the

hearing of the application then.

MS BENECKE:  Thank you, Your Honour.

AT 12.31 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.59 PM:
BRENNAN J:	We will hear from Mr Nicholas first.
MR NICHOLAS:	Your Honour, with respect, we have not got a

great deal to tell you. We had handed to us an

unsourced note but the long and short of it is that

we have been unable to get any - for reasons that I

will not read out to the Court - information of any
satisfactory nature about the state of the file.

It may be that things will change during the

Benecke(2) 15 19/11/93

afternoon but I cannot take the matter any further

at the moment. This might help.

Your Honour, I am informed that this is the

situation: there has, in fact, been an application

for review made. No date has yet been set for the

hearing of that although it is expected that it

will take place in December.

GAUDRON J:  Do we know whether that is the beginning of

December or - - -?

MR NICHOLAS:  No, we know absolutely nothing. That is all

we know, Your Honour. Now, it may well be that

Ms Benecke might be able to assist us but I am

afraid that is all we know.

GAUDRON J:  I think there is a regular time for the meetings

of the review committees but I do not know when it

is, of course.

MR NICHOLAS:  Your Honour, I am sure there is a scheme but

that is the best I can do. I have not seen the file; we have not been able to get it. That is

where we are.

BRENNAN J: That really does raise the difficulty of what we

are to do, Mr Nicholas, in the light of section 57.

If an adjournment is to be granted then, it seems

to me, there are two problems: one is the date to

which it is to be granted, the next special leave

date in Sydney being 10 December.

MR NICHOLAS:  Your Honour, it would seem one could not be

confident that the matter would have been dealt

with by then.	It may have been, but we may be back
where we are.	Or Your Honour may take the view

that it is appropriate, in the circumstances, to -

I cannot resist an adjournment application if it is

made.	We would say we do not consent to it but I
do not think that will get us very far.

BRENNAN J: Well, the next question is one of costs, of

course.

MR NICHOLAS:  Yes. What I was going to suggest, if I may,

Your Honour:  if the Court did not think there was

much to be achieved by fixing it for 10 December

then it may well be that Your Honour adjourns it to
a date to be fixed. However, if you fixed a date,
then that might have some influence on the people

attending to the review and we could perhaps get

them working to that.

BRENNAN J:  Ms Benecke, the Court is minded to grant your

application for an adjournment in this case but there are two questions that arise, one is when

Benecke(2) 16 19/11/93

should the matter be adjourned till; the second is

whether you are to be liable for costs if the

matter is adjourned today. Now, that means, of

course, that as the matter is not ready for

argument today and as your opponents have been

represented here today, costs have been incurred.

Therefore, it would ordinarily be a requirement of

this Court that you should be ordered to pay the

costs if the adjournment is granted. So that is

one problem that I think you have to consider.

As to when it is adjourned till,

Justice Gaudron would be prepared to have the

matter listed before her in a fortnight's time

which should give both parties an opportunity of

using their best endeavours to ensure that this

matter of your review of the legal aid is heard and

determined in time for the case to be heard on

10 December. Now, if, on the occasion that it

comes before Justice Gaudron, that does not look to

be a possibility, then Her Honour will have to

consider whether some further date should be fixed

in place of 10 December. But the intention of the

Court would be that it should be on 10 December.

Now, do you understand what I have said to

you?

MS BENECKE: Yes, I do, Your Honour, yes. It was, at first,

for the 10th.

BRENNAN J:	And you understand that your application for an adjournment will mean that you will be subject to
an order for costs in relation to today's
proceedings.
MS BENECKE:	Your Honour, could Mr Hastie speak on my

behalf?

BRENNAN J:  I do not think it is necessary for Mr Hastie to

speak.	If he wishes to consult with you you
can

MS BENECKE:  Thank you very much. It does not matter, thank

you, Your Honour.

BRENNAN J: Very well. Now, Mr Nicholas, does that course

of procedure present any difficulties from your

side's point of view?

MR NICHOLAS:  No, and we are grateful to Justice Gaudron for

that opportunity, Your Honour. On the question of

costs, if we may, we would ask for costs for today

as well as for the occasion on 26 October when the

matter was last before the Court.

Benecke(2) 17 19/11/93

BRENNAN J:  The costs for today will be within our

disposition; the costs for 26 October can await the

final determination of this application.

The order of the Court is that the present

application will be adjourned until Friday,

10 December 1993, subject, however, to any order
that may be made to the contrary by Justice Gaudron

on a hearing to be listed before Her Honour at

9.30 am on Friday, 3 December 1993. The costs of

today's proceedings to be paid by the applicant to

the respondent, such costs to be taxed.

AT 3.08 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 10 DECEMBER 1993

Benecke(2) 18 19/11/93