Benecke v The National Australia Bank Limited

[1993] HCATrans 324

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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

MASON CJ DAWSON J

TOOHEY J

Benecke(2) 1 26/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 3.20 PM

Copyright in the High Court of Australia

MR R.M. HASTIE:  My name is Raymond Michael Hastie, and I

ask leave to speak briefly on Ms Benecke's behalf.

Due to Ms Benecke's illness, she is unable to

attend today and is not represented at this

particular point in time by counsel. If I may pass

up to Your Honours an authorization and an

application for an adjournment, and a supporting

affidavit.

MASON CJ: Yes. Before you proceed further, I think we

ought to hear Mr Nicholas announce his appearance

for the respondent.

MR W.H. NICHOLAS, QC: If Your Honours please, I appear with

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

respondent. (instructed by Mallesons Stephen

Jaques)

MASON CJ:  Now, Mr Hastie, you were telling us that you were

applying for leave to make an application on behalf

of the applicant for an adjournment.

MR HASTIE: Yes, Your Honour, the applicant is ill and

unable to attend in Court today, and there are

other mitigating circumstances surrounding today's

hearing that - her grounds, and for her application

and her affidavit that support that, Your Honour.

MASON CJ: First of all, what evidence do you have that the

applicant is ill and unable to attend Court today.

MR HASTIE:  I have a medical certificate from her doctor who

apparently visited her yesterday and she is under

visitation by the doctor twice a week.

MASON CJ:	Have you shown that certificate to Mr Nicholas?
MR HASTIE:	I have not had the opportunity yet, Your Honour.

To explain that situation: when it became clear

that we did not have representation on Friday, I

rang the Registrar of the Court to find out what	procedure I should follow for Ms Benecke, and that
was to make an application here on the day.

MASON CJ:  You were endeavouring to obtain, or Ms Benecke

was endeavouring to obtain legal representation to

make this application today?

MR HASTIE: Absolutely, Your Honour.

MASON CJ:  Would you show the certificate to Mr Nicholas,

please?

What length of adjournment are you seeking,

Mr Hastie?

Benecke(2) 2 26/10/93

MR HASTIE: With respect, Your Honour, we are looking at,

given the circumstances, until the next application

hearing on 10 December.

MASON CJ: That is the next application for special leave

hearing date in December?

MR HASTIE:	I believe so, Your Honour.
MASON CJ:	When is the next hearing in Sydney,

Mr Deputy Registrar?

DEPUTY REGISTRAR: 19th November.

MASON CJ: 19th of November. That is the next special leave

hearing in Sydney. Not December.

MR HASTIE: Taking that into consideration, Your Honour,

Ms Benecke has an application in before the

Legal Aid Commission, and we expect to hear from

them within the next two to three weeks, plus - - -

MASON CJ:  An application for legal aid in connection with

this application?

MR HASTIE: Yes, Your Honour. It already has been to the

Legal Aid Commission. We have appealed to them

under the special circumstances being that in light

of the fact that in the last week we have received

correspondence from the New South Wales Law Society

pointing out that they take the matter seriously in

regard to the complaint against the lawyer,

Mr Peter Jackson.

MASON CJ:  We do not want to go into all the details.

MR HASTIE: Yes, Your Honour.

MASON CJ:	Mr Nicholas, what is your response to this?
MR NICHOLAS:	We oppose it, with respect, Your Honour, and

we oppose any application by Mr Hastie to appear
for Ms Benecke.	We realize, of course, it is a

matter for the Court, but we do oppose it.

Obviously, the Court will have to look - - -

MASON CJ: Yes, but there is a difficulty, is there not, in

dealing with an application for an adjournment on

the ground that the applicant is not well enough to attend Court, unless somebody is able to put before the Court the material that supports that

application?

MR NICHOLAS: Certainly, Your Honour, of course. But

Your Honour asked me for our position: this matter

has had a very long history and it has had a

history before this Court as well.

Benecke(2) 3 26/10/93

MASON CJ: Perhaps you might hand up the medical certificate

to us so that we can see - - -

MR NICHOLAS: This is the material that Mr Hastie gave me,

Your Honour.

TOOHEY J:  Do you have copies of the medical certificate,

Mr Hastie?

MR HASTIE:	I have them here, Your Honour.
MASON CJ:	Mr Deputy Registrar, is the Court sitting in

special leave applications in December?

MR DEPUTY REGISTRAR:  Yes, Your Honour, on 10th December.

MASON CJ: On 10th December. Well now, Mr Nicholas, the

medical certificate would support an application to

a date in December. The date in November would

come within this period of 8 weeks that is

mentioned in Dr Stubbs' certificate. Now, I

realize that you might have an objection to a

certificate instead of an affidavit in relation to form, but in the light of what has been put before us, if you take take that objection then it would

only mean that we would have to adjourn the case

for a shorter period of time to enable the doctor's

evidence to be put before us in a more formal way.

MR NICHOLAS:  Can I respond to that, Your Honour, with

respect?

MASON CJ: Yes.

MR NICHOLAS:  Can I deal with it this way: first of

all, Your Honour, one of the properties, the

subject of the Bank's security, has been listed for

sale on 20 November. There is no lawful impediment

to that sale going ahead.

MASON CJ:	No, because the stay has been refused.
MR NICHOLAS: That is so. Obviously, with respect,

Your Honour, it is a matter for concern that there

should be some litigation, however strong or not,

hanging over the matter and thus, if I can come

back to it, if Your Honours were minded to grant an

adjournment, we would be asking Your Honours to fix

it for, I think, the date in November rather than

in December.

Your Honours, we also have a letter,

apparently under Mr Hastie's hand, to the Registry
of this Court here, of 30 September 1993. I am not

sure whether it is in the file, Your Honour, but we

can hand up a copy of it.

Benecke(2) 4 26/10/93

TOOHEY J: It is attached to the papers.

MASON CJ: It is amongst this bundle of papers that you

actually handed up to me, Mr Nicholas.

MR NICHOLAS:  The only one I have seen, Your Honour, is that

medical certificate, so Your Honours are well ahead

of me. But, Your Honours, it is the letter of

30 September 1993 and Your Honours see reference

was made to an application to the Bar Association

for aid. Now, we have asked the representative of

the bar who deals with these matters to be in

Court, and he is here, Mr Stephenson, has the file.

Obviously we cannot get to the file. He may be

able to tell Your Honours the time the application

was made and the fate of it. Your Honours will

also have observed that in the fifth paragraph, the

statement was made that "Ms Benecke and Mr Hastie

were incompetent to present the case. I am still

ill and Ms Benecke is clearly too ill to present

her case", and so on.

What we are saying to Your Honours, with

respect, is quite plainly the applicant has had

long opportunity, we would say, to arrange for

representation, her illness notwithstanding by this

time, and - - -

MASON CJ: When was this application filed? In May?

MR NICHOLAS:  Yes, Your Honour. I think it was a date in

May. The matter came before Justice Gaudron on a

date in June. That was the stay proceedings. The

21 June.	The application has been amended since
then.	I think it was amended on 9 August, the

papers that Your Honours have, and it has taken a

substantially different form to the original one.

In the interim, of course - this may or may

not be known to Your Honours - there has been a

great deal of litigation in the courts of New South

Wales in which Mr Hastie has been appearing for

himself in relation to this property, and those

have been going on, I suppose, on and off, since

about the end of June.

MASON CJ: That is not known to me.

MR NICHOLAS: No, I understand that. Your Honours, what we

are putting to you, with respect, even on this

correspondence, and even on the material before the

Court, it is quite plain, with great respect, that

the applicant and those supporting her are well

alive to the importance of arranging representation

and so we say - I understand what Your Honour is

putting back to me, and we probably cannot do a great deal about that today, but that is why we

Benecke(2) 26/10/93

would ask that the Court	would consider putting it
in the list in November.	My recollection is that
Your Honours have a day,	I think it is the 6th at
the moment - - -

MASON CJ: Yes, we have been told there is a day in

November.

MR NICHOLAS: That is how we would put it, Your Honour.

TOOHEY J:  Mr Nicholas, are we understand Mr Hastie's

reference to "legal aid" as being a reference to an approach to the Bar Association, only, or are there concurrent applications on foot?

MR NICHOLAS: First of all, Your Honour, I do not know. All

I know is it is certainly open to him to make that

application to a variety of organizations.

TOOHEY J: It is just that you referred to a representative

of the bar being present.

MR NICHOLAS: Yes, that is so, and that is because the only

note we have is the reference to it in this letter.

Mr Stephenson is here and he, no doubt, can produce

the file and - - -

TOOHEY J: It is just that Mr Hastie spoke of some appeal

before which I took to be before the Legal Aid

Commission.

MR NICHOLAS: Well, I know nothing about that, Your Honour.

I can tell you, of course, that in addition to the

Bar Association, I think the Law Society runs a

pro bono scheme and of course the statutory body,

the Legal Aid people as the State body, that is an

entirely different scheme.	So it may well, he made
application - - -

MASON CJ: If there was an unresolved application for legal

aid to the Legal Aid Commission, this Court would

not be able to proceed further with the matter,

would it?

MR NICHOLAS:  No, I would accept that. I think that is

right, with respect.

MASON CJ: But we do not really know whether the application

has been made to the Legal Aid Commission or not.

MR NICHOLAS:  We do not at all. All we know, Your Honour,

is what we see in this letter.

MASON CJ: Is there a pending unresolved application for

legal aid to the Legal Aid Commission?

MR HASTIE: Yes, there is, Your Honour.

Benecke(2) 6 26/10/93

MASON CJ:	When was it made?
MR HASTIE:	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 to the Legal Aid Commission.	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. We have also made an

application to the New South Wales Law Society.

That was done on 9 September. It was returned on

14 September on the basis they did not take

commercial litigation pro bono cases. It was then

appealed to them on 5 October and we received a

letter last week. I have all those letters and

applications in here, Your Honour.

MASON CJ:  No, there is no occasion to present them to us.

Yes, Mr Nicholas?

MR NICHOLAS: 

Your Honour, I wonder if I might raise another

matter, with respect? It is in relation to the
medical material that Mr Hastie has put before you.
This may also be in that collection of material,

but we have a copy of a letter from Dr Stubbs

addressed to "The Duty Judge" on 12 June 1993,
below which appears a note in handwriting,

"Wednesday 22 June 1993".

MASON CJ: 

No, we have not got that .

MR NICHOLAS:	You do not.	May I hand it up to Your Honours.
MASON CJ:	Yes.	Have you shown it to Mr Hastie?

MR NICHOLAS:  It is a note that went to the Registrar of

this Court after the filing of the first

application by Mr Hoines who appeared for

Ms Benecke before Justice Gaudron on the stay

application.

All I am saying, Your Honour will observe some

similarity in the content and I cannot say any more

than that, with respect.

MASON CJ: In the circumstances, the Court proposes to

adjourn this matter until 19 November which is the

next day on which there will be a hearing of

special leave applications in Sydney.

I should say to you, Mr Hastie, for

transmission to the applicant, that the applicant

should make every effort possible to have the

Benecke(2) 26/10/93

application presented in person or preferably by

counsel or legal representative on that day. So,

on that footing the matter will stand adjourned

until 19 November.

MR HASTIE: Thank you, Your Honour.

MR NICHOLAS: If the Court pleases.

AT 3.37 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 19 NOVEMBER 1993

Benecke(2) 26/10/93