Benecke v The National Australia Bank Limited

[1993] HCATrans 172

',;-~~

•

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 AUSTRALIAN BANK

LIMITED

Respondent

Application for a stay

GAUDRON J

(In Chambers)

Benecke 1 21/6/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 21 JUNE 1993, AT 10.15 AM

Copyright in the High Court of Australia

MR L.F. HOINS:  Your Honour, I have had the pleasure of

meeting you before.

HER HONOUR:	You have appeared before me before, I think.
MR HOINS:	It was a pleasure, Your Honour. Ms Benecke is

ill, Your Honour, and we have medical certificates

attesting to that.	The other side has been
informed.	I would seek your leave to pass them up

to Your Honour.

HER HONOUR: Let me just take the appearances first.

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)

HER HONOUR:  Before we go any further at all, because there

was a question about who appears on this side, is

there some written authority for someone to appear?

MR HOINS:  Indeed, Your Honour, and I seek to pass up to

Your Honour, with a copy to Mr Nicholas, the

medical certificates I just alluded to, and the

authorities.

HER HONOUR:  No, leave the medical certificates to one side for a moment. Is there some written authority for

somebody to speak on behalf of Ms Benecke?

MR HOINS: Yes, I have written authority to represent

Ms Benecke.

HER HONOUR: All right. Still before we go any further, I

should tell you this, that first of all I bank with

the National Bank, and secondly, I know

Justice Beazley, whose evidence seems to be at the

centre of this case.

MR HOINS:  Somewhat, Your Honour, yes.

HER HONOUR:	Is there any objection to my hearing the matter? Before anyone deals with that, I should
also say that there is nobody who can hear this
matter in Sydney.  If there is objection to my
hearlng the matter, it will have to go to Canberra
some time later this week, but you should all know
that at this stage.
MR HOINS:	I am sure Mr Nicholas does not mind, Your Honour.
HER HONOUR:	I do not know about that.
MR HOINS:	And I assure you we do not wish to impute

anything to your disadvantage around us there.

Benecke 2 21/6/93

HER HONOUR:	Do you wish to speak to Ms Benecke about it?
MR HOINS:	No, Ms Benecke is just too ill, Your Honour, and

she has left it in my hands if Your Honour will

permit me to address you about it.

MR NICHOLAS:  We have no objection to Your Honour dealing

with the matter.

HER HONOUR:	Do you have any objection?
MR HOINS:	No, Your Honour.
HER HONOUR:	On that basis, could I see your written

authority.

MR HOINS:  Certainly, Your Honour. You do not wish to see

the medical certificates?

HER HONOUR:  Not at this stage. I wish to see your written

authority to - - -

MR HOINS:  I will just give a copy to Mr Nicholas.

HER HONOUR:  Thank you. Now could I see the medical

certificates. The only relevant one really is the

top one, is it, from Dr Stubbs?

MR HOINS: Except, with respect, Your Honour, the second one

is a psychiatric report which goes to the more

detailed distress Ms Benecke is feeling.

HER HONOUR:  Yes, but the only question today is whether she

is able to attend Court today, is it not?

MR HOINS:  Yes, that is so, Your Honour, but they do come

together.

HER HONOUR:  I will work on the assumption for the moment

that the top one is the only relevant one, because

we are still considering your right to be heard,

Mr Hoins.

MR HOINS:  Yes, Your Honour, I understand .that and I do not

want to waste your time, but Ms Benecke has had a

psychiatric assessment and she is unwell on two

grounds, not just the fact that she has got the flu

or something today; she is substantially unwell,

Your Honour. I just make that point, if I may.

HER HONOUR:  Mr Nicholas, what do you say about Mr Hoins'

appearance?

MR NICHOLAS:  Your Honour, we would oppose it, but obviously

we say it is a matter ultimately for the Court. We

would say that the Court would be disposed to deal

with his application in the same way in which it

Benecke 21/6/93

dealt with it in the Arnold matter. We have a

transcript of those proceedings, and what we

proposed to do, Your Honour, with your leave, was

to hand you a bundle of documents, when it becomes

appropriate to go to it, which included the Arnold

transcript. Your Honour was a member of the Court

then which dealt with the special leave application

and in that, I think Mr Hoins sought leave to argue

the matter and the Chief Justice dealt with the

various matters in the course of discussion with

him.

HER HONOUR:  But in that case of course, the party was

present in Court. We have the difficulty today

that there is no party present in Court.

MR NICHOLAS:	Your Honour, I will not take time up on that point. I just want to make clear what our position
is, with respect, and then obviously enough it is a matter for the Court.

HER HONOUR: Might I just ask you, Mr Hoins: Mr Hastie has

spoken on behalf of Ms Benecke in other

proceedings, I understand.

MR HOINS:  We both have actually, Your Honour. Let me just

clear this up. We do not want to waste your time

or Mr Nicholas' time, but it does not come up with the Arnold matter. As far as we are concerned, we

do not want to ..... with the Arnold. Ms Benecke

will be - we have got an appointment with the

Registrar of this Court on Friday to settle the

books of appeal, and we have given notice to

everyone there that we will be - or that Ms Benecke

will be~ amending her notice of appeal. There is

absolutely no comparison between what will be

settled on Friday and the Arnold case, so that is a

red herring, if I may say so, Your Honour.

HER HONOUR:  No, you see, Mr Hoins, there is a difficulty

about this matter in that normally people appear by

without counsel or without legal representation, to	their legal representatives. There is provision in the rules of this Court to allow people to appear	appear on their own behalf. There is no provision
that I know of in the rules of Court to allow
anyb9dy else to speak on their behalf.

MR HOINS:  It would be impertinent of me to lecture you,

Your Honour, but if you will permit·me to say: the

High Court does stand as the superior court in

Australia and, as we have just seen in the Mabo

decision and we see virtually every day, you and

your fellow Justices can really do anything, with

respect.

HER HONOUR: That is not entirely true.

Benecke	21/6/93
MR HOINS:	It is true enough to permit you to - the matter

today, after all, is really only a stay until - we

do not want to fight an action with you and take up

everyone's time today - is only a stay until the

matter is resolved by the High Court.

HER HONOUR:  Does Mr Hastie have some position in the business conducted by Ms Benecke?

MR HOINS:  Mr Hastie does. He is ill himself today,

unfortunately, as it turns out, but the answer is

yes. He is really a partner with Ms Benecke and he

is also her business manager. In this matter

before the High Court, Ms Benecke unfortunately

stands alone. In the lower court, where we will be

meeting the other side tomorrow and the following

day, Mr Hastie and Ms Benecke are joint plaintiffs

against the Bank. In the matter before Your Honour

right today though, Ms Benecke unfortunately stands

alone.	Mr Hastie is himself considerably ill this
morning; there is no question about that.	He

wishes to speak to you, Your Honour; it might clear

it up a bit.

HER HONOUR:	Yes, Mr Hastie.
MR R.M. HASTIE:	It was my intention to come to the Court today and speak on Ms Benecke's behalf,
Your Honour, but over the weekend I have had a
severe pain in the side of the head here and in the
back of the neck, and I am just not confident at
the moment.  I am extremely nervous and in a very
sort of explosive position at the moment. That is
why I rang Mr Heins and asked him if he could come
and help me today. Ms Benecke has given the
authority for that. Thank you, Your Honour.
HER HONOUR:	I will not give you leave to represent

Ms Benecke, but I will hear what you have got to

say and I will hear what Mr Hastie wants to say at

the end, if there is anything that Mr Hastie wishes

to say.

MR HOINS:  Thank you, Your Honour. First of all, we give

notice, as we have already indicated to the other

side, that Ms Benecke will be amending on Friday

the notice of appeal which will delete the matters

in the existing notice of appeal and will

substitute, I understand, 29 perhaps more

functional grounds of appeal from the lower court

proceedings.

HER HONOUR:  Do you have a draft of those, because I can

only act on the documents that I have.

MR HOINS:	No, I do not have a draft here, Your Honour, but the High Court Registry was informed last week in
Benecke	21/6/93

writing - and I have a copy of that

correspondence - to say it is to be amended. It is

a bit difficult with the condition Ms Benecke is

in, but I would ask Your Honour to accept my

assurance that we will be in the Registry with that

document. All I can do is state the intention that

we will be there on Friday, amending.

HER HONOUR:  Mr Heins, there is some importance about what I

have just asked you and it derives from this: this

Court has got power to stay proceedings only in

exceptional circumstances, only where the interests

where·it is necessary to preserve the	of justice so require, which means in effect only
subject-matter of the litigation - and for
practical purposes we can assume you would fall
within that leg of the rule - and where there is an arguable case, where there is a reasonable prospect
of success. The latter matter cannot be even
guessed at if I do not know the grounds of appeal.

MR HOINS:  Indeed. I take your point, thank you,

Your Honour. The grounds of appeal will be

'somewhat similar to, if not exactly the same as,

the grounds of appeal originally filed in the New

South Wales Court of Appeal. In there, there were

30 grounds of appeal; in this case there will be

29.      May I say to Your Honour that I understand

exactly what Your Honour said, and I am not

debating that with you.

May I ask Your Honour that the stay then be

until Friday, because then - I realize I am not an

officer of the Court and therefore you cannot

punish me in that sense. We have to be here on

Friday to meet the requirements of the Registrar

for the amended notice of appeal. If we fail to do

that, Your Honour, then obviously we stand in

default on the undertaking I am making you for

Ms Benecke. The Bank has gone out of its way in

the last month - - -

HER HONOUR:  What that means is that you wish to in effect

have a temporary stay till Friday and then to argue

for a further stay on Friday.

MR HOINS:  In just listening to Your Honour, I can see that

tha~-seems to me, in my ignorance, to be the only

reasonable way to approach it. I am giving my word

of honour, for what that is worth to Your Honour,

that on Friday we will be doing it. The Registrar

is going to be mighty unhappy if we do not do it,

and the other side are not inclined to give us much

ground, so on Friday we have to perform. All I am

saying to Your Honour is that rather than ask for a

carte blanche stay, because you quite correctly

point out the documents are not before you, though

Benecke 6 21/6/93

they are in the Court system - they are not the

same but almost exactly the same as the 30 grounds

in the Court of Appeal.

We will be appealing on the decision of

His Honour Justice Giles and the decision of the

New South Wales Appeal Court.	They are extant and
they are in the files, Your Honour.	So to that

extent, the documents are in existence at least.

They will be amended - there is no question about

that - and, one hopes, improved. We are under an

obligation to the Registrar representing this Court

to do - - -

HER HONOUR:	What would be the main ground of appeal?
MR HOINS:	The main grounds of appeal are that His Honour

Justice Giles erred in -

HER HONOUR:	No, it has got to be the Court of Appeal.
MR HOINS:	I beg your pardon, that the New South Wales Court

of Appeal erred in accepting the evidence of

Her Honour Justice Beazley and dismissing the

evidence of five of our witnesses.

HER HONOUR: That is the main ground?

MR HOINS:	No.
HER HONOUR:	I think you had better give me an analysis of the grounds that you say -
MR HOINS:	The main grounds are, as I just said, that the

New South Wales Court of Appeal erred in sustaining

His Honour Justice Giles in dismissing the evidence

of five of our witnesses.	We also believe that he
erred in the matter of privilege.	Am I going too
fast for Your Honour?

HER HONOUR:  No, not at all.

MR HOINS:  In the matter of privilege in respect of

Margaret Beazley being allowed to volunteer to give

evidence against Ms Benecke as she did. We also

believe the New South Wales Court of Appeal erred

in sustaining His Honour Justice Giles in the

mat~er of discovery of which we complained strongly

and in the general conduct of the case in which our

evidence was almost entirely disallowed by

Mr Justice Giles.

HER HONOUR:  When you say your evidence was almost entirely

disallowed, that really is much the same point as

the first point you say about - - -

MR HOINS:  Yes, Your Honour.

Benecke 7 21/6/93

HER HONOUR: 

The matter of privilege, I understand that, but

then you say the matter of discovery. was that the
subject of a ground of appeal in the Court of

Appeal?

MR HOINS:  No. In the Court of Appeal we made 30 separate

grounds for appeal. In amongst those grounds we

objected to an appeal against His Honour

Justice Giles' attitude and findings in relation to

discovery and the exclusion of certain evidence. I
cannot recite them off the cuff, I am sorry, but

there were 30 grounds in the New South Wales Court

of Appeal. So His Honour Justice Giles in his

wisdom struck out all our evidence relating to

discovery, he struck out all our five witnesses.

HER HONOUR:	I do not understand what you are saying about your evidence relating to discovery.
MR HOINS:	In the original case we attempted to argue - that

is the case before Mr Justice Giles - that the

discovery had been both faulty and, in our belief,

deceitfully so, by the Bank and endeavoured to

introduce evidence to sustain that, and His Honour
Justice Giles saw fit not to allow the evidence.

That was one of our grounds of appeal. In other

words, there was inadequate discovery.	We
complained about it.	We attempted to bring in

evidence to support that, and it was disallowed.

The example, if I may, Your Honour, at the risk of

offending you, is the case of Commonwealth Bank of

Australia v Thomas Quade in the High Court on

3 October 1991 on which you sat, where I understand
it was clearly stated - and you will correct me if

I am wrong - that the bank failed to provide proper

and adequate discovery and the appellant had done

all that was reasonable ..... discovery.	We fall
into that category, we submit.

HER HONOUR:  Was that a grant of appeal in the Court of

Appeal?

MR HOINS:  Yes, it was, Your Honour. I am trying not to

mislead you.

HER HONOUR:  No, no. And was it dealt with in the Court of

Appe~l?

MR NICHOLAS:	Yes, Your Honour.
MR HOINS: Yes.

HER HONOUR:  All right, thank you. Have you got anything

else to say about the main grounds of appeal?

MR HOINS:  Yes. There were other· grounds in the appeal in

that we appealed against the disallowance by

Benecke 21/6/93

Mr Justice Giles of, really, a whole range of

evidence. For instance, we alluded to - we
alleged, is more correct, I suppose - we alleged to

things like the homosexual conduct of the solicitor

for the Bank, Mr Peter Jackson, who was then a

solicitor for Ms Benecke. We submitted in

evidence, or we attempted to, I should say, to

Mr Justice Giles - this had a bearing on it and

although it is distasteful and the evidence was

sealed up in a brown envelope with everyone's

consent early in the days, we still maintain, as we

maintained then, that it has all the appearance of

a troika, a somewhat unnatural troika, working

against the interests of Benecke and Hastie.

We have objected all the way along now for the

last 11 months or so to the whole business of the

consent of Ms Benecke which is really the main

point. At all stages Ms Benecke, supported by

Mr Hastie, has denied that she consented to the

Bank on 29 June, and the allegations we have made

which are obviously quite serious of possible

corruption between His Honour Justice Cole in the

commercial division and Mr Peter Jackson and the

Bank's lawyers is, of course, a serious thing to

make, but we have made those.

HER HONOUR:  Yes, but how does that bear on the question of

consent?

MR HOINS:  It bears on the fact that the evidence -

His Honour Justice Giles, in his judgment, asked

the rhetorical question, "Why would Mr Jackson do

what we alleged he did" - which I am happy to go·

through if Your Honour wants me to right now - and
we answered that question and we endeavoured to

argue why this Mr Peter Jackson would do what we

say he did. But Mr Justice Giles would not allow

that evidence and the Court of Appeal upheld

Mr Justice Giles in that. So, we have a range of

evidence that we have endeavoured to introduce at

that stage.

HER HONOUR:  Yes, but you cannot go around just introducing

evidence because you wish to.	It has got to be
relevant.

MR HOINS:  His Honour Justice Giles made it very relevant.

He asked us the rhetorical question in public, "Why

would he do it?", and I answered hi:rn. We answered

him very forthrightly, and we believe that in the

appeal we will be able to sustain the allegations,

and they are serious allegations.

HER HONOUR:  For my part, I do not see how it bears on the question of consent.

Benecke 9 21/6/93

MR HOINS:  Your Honour, if I may then, without wishing to

take up too much more of your time:  at the time

the consent took place I was not present except for

the Bank's lawyers at the back there - no one.

Mr Nicholas was not there either. But my clear

understanding, and it has been in evidence and done

by affidavit, is that Ms Benecke was in the women's

lavatory vomiting. Now, the Chief Justice of New

South Wales, Mr Gleeson, asked me in the appeal was

the consent settlement handed down in open court,

and that is true. And I understand the import of

what he asked me at the time, and it is true, it

was done in open court.

Ms Benecke, however, was being represented by

lawyers - an act she has bitterly regretted since -

who, in our submissions to the court at all levels,

contrived the consent. Benecke herself has always

denied she consented. Now, I am aware,

Your Honour, because we found out in the travails

we have all been through, that having senior

counsel there, you know, a consent can be taken by

virtue of the fact that the counsel is there, from

a High Court ruling, so I am told. The fact of the

matter is that Benecke did not consent. She was

not present. There is considerable dispute about

what was actually said to Benecke and Hastie -

considerable dispute. His Honour Justice Giles

swept aside our evidence from four witnesses and at

every stage found that Ms Beazley told the truth.

HER HONOUR:  If you get to this Court, the only questions

that are of any significance are questions of law.

So, in essence, that has got to be that evidence

was wrongly - when you have got a factual contest

such as you have got here, the question has got to

boil down to whether evidence was wrongly admitted

or wrongly rejected or something of that nature.

MR HOINS:  That is precisely what we will do by Friday,

Your Honour.

HER HONOUR:	On Friday?
MR HOINS:	On Friday.
HER HONOUR:	9n Friday, at this stage, all you have got to

do is to settle an index.

MR HOINS:  No, Your Honour. Mr Hastie has already informed

the Registrar and confirmed in writing that the

documents will be amended, and the Bank has been

informed.

HER HONOUR: Yes. Well - - -

Benecke	10	21/6/93
MR HOINS:	That is why it has been delayed actually.	The

settling should have been done a few days ago	and
it has been put off because Ms Benecke is ill	and
because, obviously, the documents have to be
amended and they are being amended. It is a

question of time. Like, we are in court for two

days tomorrow in the supreme court; Ms Benecke is

crook; he is not well; I live in Nowra - like, it
just cannot be done before Friday. But because of

the fact that we obviously cannot delay to settle the index on Friday, it will be done then and the

Bank will be informed as soon as it is done.

HER HONOUR:  Yes. Well, I have not yet decided whether this

matter should go over to Friday or not but I need

to know what you say will be the main grounds of

appeal on this issue.

MR HOINS:	The grounds I have just given you are the main grounds with one additional thing that I should
say, and that is the whole of all these matters
rest on whether Benecke consented.  Now, Ms Beazley
is on evidence saying and agreed on
cross-examination that she does not know to this
day who instructed her to settle. She thought it
was - it could have been either Jackson, the
solicitor, or Beazley, but she does not know. And
in the court before Mr Justice Giles she simply
could not tell anyone who instructed her to settle.

Now, we will be, in addition to all that that

I have already poured out upon you, objecting to

the fact that Beazley should not have settled in
the known conditions of Benecke. Everyone,

including His Honour Justice Giles, seems to regard

her as a scatterbrain when she is normally well,

and that was indicated.in his judgment. Ms Benecke

is not a normal rational person. She is not a

High Court Judge like you, Your Honour, with your

experience at all. In those circumstances,

Beazley, not knowing to this day whom instructed

her to settle, we submit, instructed contrary to

Benecke's instructions. Now, that is the gut of

the whole business actually.

HER HONOUR:  Yes. Well, that really is an attempt to

relitigate the facts except so far as you raise the

question of privilege and discovery and -

MR HOINS:  Privilege; it is a matter of law .. ·

HER HONOUR:  Yes. The evidence to which you refer does not

seem to be germane to the question of consent.

MR HOINS:  It is not to this extent, Your Honour, that

His Honour Justice Giles, in finding against all

our witnesses - all of them - created the position

Benecke 11 21/6/93

where - and then entirely agreeing with Ms Beazley

and he paid us the honour of telling us what you

just told us, that he had served at the Bar with

Ms Beazley. Now, that makes it all a bit

difficult, you see, for everyone but more difficult

for us than anyone else.

The fact that Mr Justice Giles swept aside our

witnesses, all five of them, in favour of

Ms Beazley, in our view misdirected the decision

that he made against us.	Now, we believe that he
made errors in fact and in law.	Now, you have

already pointed out to me that we can only talk law

in the High Court. He misdirected his decision on the business of the privilege, the legal privilege of Benecke versus these lawyers, particularly

Beazley and, on the law - since we cannot talk

about fact - relating to the consent. You know,

the consent should have been far tighter than that.

Now, we should not be in the position, surely,

where, to this day, the lady lawyer who is now a judge, still does not know who instructed her to settle on such a vitally important matter. The
whole thing is a tragedy, actually, an absolute

tragedy.

HER HONOUR: 

I think I understand your main grounds of

appeal. Let me ask Mr Nicholas: what do you say to
the matter going over until Friday?

MR NICHOLAS: 

We oppose that, with respect.

HER HONOUR: 

You oppose that, yes.

MR NICHOLAS: 

Does Your Honour wish me to take Your Honour

through the matter to indicate why we take the

stance that we do?

HER HONOUR:  Yes, I think that might be useful.

MR NICHOLAS:  Your Honour has a history. Your Honour, what

we have done to enable you to better follow the

matter, is we have prepared a - - -

HER HONOUR:  No, I am only hearing you at this stage on the

"going over until Friday" question.

MR NICHOLAS:--I see. Your Honour is not asking me to deal

with the substance of the -

HER HONOUR:  I do not think Mr Heins has finished his

submissions if it does not go over until Friday.

MR NICHOLAS: Well, Your Honour, just so one is not at cross

purposes, with great respect, we are here to resist

the making of a stay. Subject to that and that

there is no stay in the interim, then the answer to

Benecke 12 21/6/93

Your Honour's question is we do not have any objection to it going over but I just do not want -

HER HONOUR: Stay in the interim, yes.

MR NICHOLAS:  No, no, we

HER HONOUR: Well, it is the stay in the interim that

concerns you.

MR NICHOLAS:  It is the stay in the interim that concerns

us. I .do not know whether that clarifies our

position, Your Honour, and I would make submissions

to you about that when it is convenient to do so.

HER HONOUR:  Yes, all right. Well, thank you. Mr Heins,

you have heard what Mr Nicholas has said. I have

no power to grant a stay unless I am satisfied that

a stay is necessary. So, you must convince me of

that. You must proceed on the basis that it has to

be dealt with today, not Friday.

MR HOINS:  Thank you, Your Honour. In an appearance before

His Honour Mr Justice Smart on 27 May at 10 to 5 in

the evening, Mr Justice Smart was kind enough to

allow me to speak for both Benecke and Hastie;

Benecke, again, not being present due to illness.

At that hearing we were making an application for a

stay, Your Honour, Mr Justice Smart being the duty

judge who we had been trying to get in to see for

two days - he had been busy with bail applications.

So, we finally saw him at 10 to 5 on that

particular Thursday night.

Now, at that hearing, of which I have a

transcript typed out if Your Honour wishes to see

it - at that meeting Mr Justice Smart said that he

would give a stay on the following terms: that the

Bank - which was that night represented by

Ms Bergin, junior counsel to Mr Nicholas - would

give 48 hours notice to both Hastie and Benecke of
the delivery of the writ to the sheriff.	Ms Bergin

turned around and spoke to Mr Stefano, who is

present in the Court before Your Honour, and this

is what transpired, Your Honour. I will just go

through the part that is highly relevant, I

presume, although the whole transcript is here,

Your Honour.

Ms Bergin had stated to His Honour

Justice Smart that we were premature; in other

words, the writ had not been served on the sheriff
and therefore we were premature in asking for a stay when it had not been sealed and delivered, which undoubtedly was correct. This is His Honour

to Ms Bergin, for the Bank:

Benecke 13 21/6/93

Yes, Miss Bergin, is your client prepared to

give Mr Hastie 48 hours notice of its delivery

of the writ to the sheriff.

Miss Bergin: Would your Honour pardon me

please.

His Honour: What I had in mind is that if you

say its premature and that you are prepared to

tell me that you will give 48 hours notice to

Mr Hastie of delivery of the writ to the

Sheriff so that application can then be made,

then I would think would be adequate.

Miss Bergin: Would you pardon me please

Your Honour.

She consulted with Mr Stefano.

I just take some instructions Your Honour.

Miss Bergin:  My instructions are yes,

Your Honour, and I should indicate to

Your Honour that I will pass my instructing

Solicitor to contact the Sheriff so that

those, that undertaking can be.honoured. In

effect it may be that the Sheriff might not

give enough notice.

Then there was a discussion between the judge and

everyone, including me, about fax numbers and all

the rest of it.

Now, His Honour Justice Smart, whom we were

before for a stay, gave an order to these people to
give 48 hours notice to this man and Benecke of
delivery of the writ to the sheriff. What they

actually did on Friday 11 June was that Mr Stefano,

from Mallesons Stephen Jaques, faxed the writ

through to the sheriff, followed, we understand, by

telephone instructions to evict them immediately,

and then Mr Stefano and his partnership then faxed	a letter to Hastie confirming they delivered it to
the sheriff at that time. Mr Hastie is here, of
course, and although he is as sick as a dog, if
Your Honour requires, he can go in evidence. We
have an affidavit, but it is not signed yet,
from- - - -

HER HONOUR:  Yes, but that does not seem to .me to deal with

the problem that you must confront. You must

convince me that it is necessary for a stay to be

granted, having regard to the need to preserve the

subject-matter of the proceedings. Now, you may

accept that a stay would be granted, I think - you

may proceed on the basis, until I hear something to

the contrary from Mr Nicholas, that a stay would be

Benecke 14 21/6/93

granted if you could persuade me that you had an

arguable case. So, what you have got to do is show

that you have got real prospects in obtaining

special leave.

MR HOINS:  Thank you, Your Honour, I do understand that.

Thank you, Your Honour, for bearing with me. Let

me just finish that if I may and then I will answer you as best I can.

The Bank and its lawyers has committed

contempt of court before Justice Smart - and I will

do with that in another place rather than before
you but they have, they have committed contempt of

court for which, if we did the same thing, we might

end up in the hoosegow as the Muirheads did in

Brisbane. Now, the Bank has in fact at all stages

prosecuted their defence of these matters in a way

that is, at the very least, unseemly. It has been

done deliberately, Your Honour, and we are asking

Your Honour to take this under advisement now.	It
has been done deliberately in order to stop this

man and Benecke, and anyone else from being able to

do the very thing that you are now requiring of me,

because this Bank has in fact had four different

banks cancel his trading accounts in the last four

weeks, even though he has been in credit. It has

been a consistent guerilla campaign at all stages.

Someone, whom he thinks sounded like Moon who sits in the court but may not have been, rang him up on

Saturday and laughed at him on the phone on his so-called silent number, "Ha ha we have got you", you see. This sort of campaign has been running

now for a month.

So Hastie is now sick from all this which is,

no doubt, what it was-intended to, and this is

severely limited Benecke's ability to have a

document before Your Honour, which will be filed on

Friday, that would satisfy Your Honour for this matter.

HER HONOUR:  Yes, well we can work on the basis of the

grounds you have told me.

MR HOINS:  Thank you, Your Honour.

HER HONOUR: -we can work on the basis that there will be a

document and that it will raise those six broad

matters that you outlined.

MR HOINS:  Thank you, Your Honour. Then I will go back to

the point Your Honour has made.

We are submitting to Your Honour that the

document that will be filed on Friday, the matters

of legal privilege between a lawyer and the client

Benecke 15 21/6/93

is a most important matter. It goes to the heart

of the whole judicial system, as I understand it,

with the confrontational way we have to do it, so

the legal privilege is vitally important, we

believe, Your Honour. The matter of the consent

and the way it came together -

HER HONOUR:  Yes, but have you got some authority to say

that your position in relation to that is likely to

be successful or have some prospects of success?

MR HOINS: Well, there was a book written by a lady called

McNichol last year, called "The Law of Privilege",

which we were privileged to hand up to

Mr Justice Rogers last year, for him to skip

through it. In the "Law of Privilege" by this lady

barrister, whom I assumed is reasonably well

informed, there is endlessly chapter and verse - endlessly, chapter and verse - I do not have the book with me today but there is endless chapter and

verse about - it seems to me I have got it,

Youre Honour.

HER HONOUR: Sorry?

MR HOINS:  I do not want to insult you by reading it all

out, but these are the notes that we used in the

Court of Appeal and may I hand it up to Your Honour

to have a look at it or would you rather - it

quotes case after case that we say is relevant to

the matter of privilege between Benecke and her

then lawyers. It is by a qualified lawyer and

printed by the Law Book Company. It simply goes on

page after page of legal cases and case history·

that is relevant directly to what I am putting to

you. To read it out it would probably - - -

HER HONOUR:  Does it point in the direction you want it to?

MR HOINS: Absolutely. There is no point in me trying to

get you to read it, Your Honour, if it does not win

my case, you see, so, the answer is yes, and this
will be in what we are doing on Friday.	Now,

obviously, I will give it to you and you read it.

Look, I put it to you - I do not want to be here

all day wasting your time and even the other sides

but - - -

HER HONOUR:  No, you put your case as best you can. I mean,

do not feel - well, put Ms Benecke'·s case as best

you can.

MR HOINS:  Okay, thank you. The case history that is

available on the business of client/lawyer

privilege - and I put this to His Honour

Mr Justice Gleeson in the New South Wales Court of

Appeal - is such that once it is breached, and we

Benecke 16 21/6/93

submit that here is ample legal precedent and case

history that says that if that client/lawyer

privilege is breached, then it brings the whole

adversary system down.

His Honour Justice Murray Gleeson did not argue with me at the time, but clearly did not

privilege had not been breached. agree, because subsequently he just said that

HER HONOUR:  What was held against you, or against

Ms Benecke, was that she had effectively waived

privilege by bringing the case that she did.

MR HOINS:  Yes, thank you, Your Honour. We tendered to

His Honour the Chief Justice another document on

waiver of privilege to show that, in fact, she had

not waived that privilege. In that document, which

is part of the appeal to the High Court - and it

will be used on Friday - we laid out the precedent

and the case history relating to the waiver of

privilege and I put it to His Honour the

Chief Justice that day that Benecke had not waived

her privilege.

The additional reason she did not waive her

privilege is a simple fact of this - it is here,

Your Honour. This is a copy of the document that

was - it is attached actually. It is in your

files, Your Honour, under -

HER HONOUR:	Yes.	It is part of the affidavit, is it?
MR HOINS:	Yes, it is part of the affidavit marked A.	That

is the document that I handed up to the

Chief Justice, Your Honour.

HER HONOUR:  Maybe I have not got it. I am sorry, I am

looking at the affidavit in support of an

application for special leave to appeal. Is that

the one you are - - -

MR HOINS: Yes, Your Honour. It is marked "waiver" at the

top, "A" in handwriting. I am sorry, Your Honour,

I will try and find the front page of it. It is an

affidavit signed by Ms Beazley. It is the draft

noti9e of appeal, Your Honour, for this Court. It

is the draft notice of appeal with the supporting

affidavit.	I have a copy here if Your Honour
wishes to see it.	I have a spare copy here if that
helps.

HER HONOUR:	I should have it. The application for special leave is there.
MR HOINS:	Yes, Your Honour, and attached to that - - -

Benecke 17 21/6/93

HER HONOUR:  "Waiver", yes, I see that, thank you. Yes, I

have read that.

MR HOINS:  Thank you, Your Honour. We maintain that the

matter of professional legal privilege, in the

circumstances, which are certainly unusual it

appears to us, are sustainable.

HER HONOUR:  Yes. What was held against you, as I

understand it, was that by actually disputing

consent, that Ms Benecke had waived the privilege

which attached to the communications with

Ms Beazley.

MR HOINS:  Your Honour may well be correct but we understood

that the claim of waiver of privilege was on the
basis that Ms Benecke had raised the matter in the

first instance over the conversations outside the

court room on 29 June. That is as I understood it,

but I will certainly stand to be corrected,

Your Honour.

Now, if that is true, the business of the

allegations which have been denied - Mr Nicholas

will tell you that Ms Beazley has denied them.

Beazeley and Jackson and another lady barrister,

called Madeleine Clark, in our submission - I was

not present, but in Hastie's submission and in

Benecke's submission - used the alleged fact that

Cole was a corrupt judge to lever them into the
consent settlement. That is where it all starts

really, and then there is this effing language from

Mr Bathurst, QC backwards and forward and all the

rest of it. Now, that language and the content of

the allegations against Mr Justice Cole was the

starting point of opening up this business about

the waiver of privilege, and I think that is where

it started, Your Honour.

I do not know whether Justice Cole is corrupt

or not.	We say on our side that these two lawyers,
or three lawyers, but in different stages of the
conversation, alleged that he was.	They said he

was the Bank's judge. It is all very well people

saying, you know, they did not say it at the time.

Obviously we need to be wired for sound with some

of these lawyers. The fact is that this man and Ms

Benecke insisted right at the o.utset back there

that this is so.

Those allegations are so serious and of such public importance that the airing of them, by the

stating of them, should not in itself waiver the

privilege. That is where I believe the privilege

was first alleged to be waived, and we claim and we

believe that by Friday we will put forward an

Benecke 18 21/6/93

adequate case for yourself or someone else that, in

fact, Benecke did not - - -

HER HONOUR:  Do not worry on Friday. Friday you are

settling the index and, it seems, you are filing a

new draft notice of appeal, but do not operate

under some misapprehension that on Friday you are

still going to be asking for a stay or anything of

that kind. The fact of the matter is I am in no

position to grant you a stay for five minutes, for

five days or for five weeks, except on the basis

that you convince me that a stay is necessary in

the interest of justice and, in the circumstances of this case, that involves your showing that you

have a reasonable prospect of success.

MR HOINS:  Thank you, Your Honour. Okay, let us go to the

first qualification you made there, Your Honour.	I
understand, and you will correct me if I am wrong,
that the two elements - and it is in a document in

before you - required for a stay to be granted by
the High Court being that Ms Benecke has applied

for a stay in all the courts below - you correct me

if I am wrong - and, secondly, that the Bank has

issued and sealed a writ of possession to evict her

and take possession of the property, and they have

certainly done that.

When you talk about the interests of justice,

this Bank, senior lawyers, lawyers sitting there,

made an undertaking to a judge in the supreme

court - - -

MR HOINS:  Yes, but that is another court. You must, in

this Court - I mean, what you do about that, you do

in another court. In this Court, you see, there is not even an appeal. There is no proceeding in this

Court until ·you are granted special leave to appeal

and until you have, in fact, filed the appeal.	So
I am being asked to do something quite
extraordinary: to stay the judgment of another court in circumstances where there is not even a
proceeding on foot in this Court, and to do that it
is necessary that you do two things.	One, that you

show that the subject-matter of the proceeding is

threatened if a stay is not granted. You can

assume that you have passed that hurdle unless

Mr Nicholas says something to the contrary,

because, in effect, the subject-matter, I mean, in

substance, is the property.

The second thing you must show me is that you have reasonable prospects in the proceeding you

wish to have brought to this Court.

MR HOINS:  Thank you, Your Honour.

Benecke 19 21/6/93

HER HONOUR:  In essence, that boils down to at least an

arguable case that the Court of Appeal was wrong on

some question of law - at the very least you must.

MR HOINS:  We certainly undertake here, Your Honour, the

Court -

HER HONOUR:  You must do it today, not Friday. Today.

MR HOINS:  No. I will stop carrying on about Friday. Thank

you, Your Honour.

In our submission, the New South Wales

Court of Appeal was wrong in law in relation to

legal privilege.	We believe that we will win that
if leave to appeal is granted.	The New South Wales

Court of Appeal was wrong on the ruling of the

legal privilege, lawyer/client privilege, attaching

to Benecke. We also believe that, in law, the

trial judge, Justice Giles, who, after all, was

supported - I am sorry - the appeal court was wrong

in sustaining the trial judge's decision to strike

out all our witnesses in favour of a lawyer judge.

HER HONOUR:  He did not strike them out. He preferred the

evidence of others to the evidence of some of your

witnesses.

MR HOINS:  Perhaps my choice of words was sad but, in my

terms, they were certainly struck out.

HER HONOUR:  He preferred the evidence.

MR HOINS:  Substantially though. The New South Wales Court

of Appeal was wrong in that accepting without

qualification the evidence of Margaret Beazley, who

is now a judge, and the disallowing the evidence of

all our witnesses, that they erred. It is an

important point. Everything hinged - - -

HER HONOUR:  Yes, but it does not of itself raise a question

of law.

MR HOINS:  It immediately brings us back to the legal

privilege problem because - - -

HER HONOUR:  Yes, the legal privilege problem is certainly a

question of law.

MR HOINS:  It bounces back to this legal privilege problem.

Here is a lady lawyer who has been promoted to a

judge. We say we have had five witnesses to say

that the lady is a liar. The judge, in his wisdom,

says that, "No, I believe her and do not believe

your five witnesses." It all bounces back that it

is legal privilege.

Benecke 20 21/6/93

We believe it is an arguable case, with

respect, Your Honour. Let me just stop just for a

moment if I may.

Your are a superior court judge. I am not

asking you to overrule Mr Justice Cole or anyone

else. We are not asking you to do that. What I am

asking you right here and now is, that we will be

before a supreme court judge tomorrow; Mr Nicholas

or one of his colleagues will be there for the

Bank. We were told by a lower court judge,

Mr Justice Smart, that we could come and apply for a restraining order and that is why these people

were to give us 48 hours notice.

take on board all the things that you have said. If You are a High Court judge, Your Honour, and I

these people had of done what the judge ordered and

which they confirmed they would do, we would not

trouble you for a stay, we would be in the supreme

court doing it where we will be tomorrow.

HER HONOUR:	Yes, I understand all that, but you had best direct your mind to this arguable case on questions
of law. We have got the question of privilege. Do
you want to say anything about discovery?

MR HOINS:  Yes, indeed, Your Honour. The case that I quoted

you from Commonwealth Bank v Quade, where the

High Court has laid down what they regard as the

standard for discovery was certainly not met in
this case, and without bringing up the dreaded day

of Friday again, the - The New South Wales Court of

Appeal, by upholding the trial judge,

Mr Justice Giles, disallowed all the evidence that we attempted to introduce to prove that the

discovery by the Bank was inadequate and
deliberately so. In accordance with Commonwealth

Bank v Quade, in that decision, there has been an error in law by the New South Wales Court of Appeal

in relation to discovery.

HER HONOUR:  Where do I find that in the judgment? What in

the judgment is -

MR HOINS:  Of the Court of Appeal, Your Honour?

HER HONOUR: -yes, and was it raised before Mr Justice Giles?

MR HOINS:  Yes, we argued with Mr Justice G~Ies at some

length, or Mr Hastie did, Your Honour, in relation

to discovery. Mr Justice Giles, in his extensive

judgment, under the subsection "Affidavit",

justified why he would not allow these particular

affidavits and others.

Benecke	21
MR NICHOLAS:	Your Honour, can I indicate the page reference

in the Court of Appeal's judgement?

HER HONOUR:	Yes, thank you.
MR NICHOLAS:	Your Honour, the Court of Appeal judgment of

22 April, it is the judgment of Mr Justice Clarke

at page 14.

HER HONOUR:  Thank you. Is it dealt with by

Mr Justice Giles?

MR NICHOLAS:  To the extent that His Honour

Mr Justice Clarke has quoted - and Your Honour will

see the passage, and I will see if I can get a

further reference for Mr Justice Giles.

HER HONOUR:  Thank you. So far as it appears from here, the

difficulty you face is that the amended summons did

not make any claim in relation to discovery.

MR HOINS:  Yes, Your Honour, that is undoubtedly true. In

the preliminary hearing one of the grounds of the

appeal on the forthcoming couple of days is that

Mr Justice Giles, in our submission, walked us into

the amended summons. Mr Justice Giles was said by
the New South Wales Court of Appeal to have been a

nice fellow - I cannot remember the exact words -

and he bent over backwards for Mr Hastie. It is

our submission, honestly held, that in fact he

walked us out of some of the things that we should

have actually documented.

Now, what Your Honour just said is absolutely

true.	The original summons, however, dealt with it
quite extensively.	Now, we submit that the Court

of Appeal erred to th~ extent that Justice Giles
misdirected the trial by the way he guided us out

of the original submitted material into the amended

summons which now leaves us with the difficulty we

have got, and we are clear, in our case, as to the

fact that he did exactly that.

HER HONOUR:	What was the original claim?
MR HOINS:	The original claim was that the discovery by the

Bank was not only inadequate, but the Bank had

refased to provide discovery. We had a bank expert

- said to be an expert, not at our desire but

everyone else's - John McLennon ex~westpac, and

McLennon was present in the court on the particular

day I am referring to, with an affidavit, and

McLennon was in a position, having attempted, on

Hastie's instructions, to obtain adequate discovery

from the Bank - McLennon was in a position, as an

expert witness, to state that - - -

Benecke 22 21/6/93

HER HONOUR: This discovery would be limited, you

understand, to the settlement - limited to the

question of settlement.

MR HOINS:  No.

HER HONOUR: Well, it must be.

MR HOINS:  No. I say, Your Honour, with respect, our appeal

book 3 - the business of McLennon, just to pin a

document down, is our appeal book 3, 00350 - - -

HER HONOUR: Well, I do not have your appeal book.

MR HOINS:	No, Your Honour, with respect, the question of discovery precedes the consent settlement.	The
matter between Benecke and this Bank - - -

HER HONOUR: 

Yes, but look, this proceeding is concerned with the settlement and that is all.

MR HOINS: 

Yes, Your Honour, certainly, but the mechanics or

the facts that led to that consent settlement were
very much in argument before Mr Justice Giles.

MR NICHOLAS: 

Your Honour, I wonder if I could interrupt my

friend; it may help both Your Honour and him get to
it. Does Your Honour have a copy of

Mr Justice Giles' judgment?

HER HONOUR:	Yes.
MR NICHOLAS:	Your Honour, the first five pages go to

His Honour setting out something of the background

of the proceedings that were to be litigated before

Mr Justice Cole. Your Honour sees, at the very

foot of page 4, and perhaps flowing over to page 5,

is the matter on the only question of discovery

that came up. And, if it helps Your Honour, a

quarter of the way down page 5 is the passage

quoted by Mr Justice Clarke in his judgment.

HER HONOUR:  Yes. Well that has nothing to do with the

settlement.

MR NICHOLAS:  That is the whole of the discovery matter,

Your_Honour. I was just trying to clear that up.

HER HONOUR:  Thank you. As I read these judc;pnents,

Mr Hoins, discovery - any question ·that was raised

relating to discovery, related to matters involved

in the first proceedings, not in the second

proceedings before Mr Justice Giles.

MR HOINS: With respect, Your Honour, we endeavour to - and

I do not want to belabour this make it a painful

day, but before Mr Justice Giles we endeavoured to

Benecke 23 21/6/93

show that one of the justifications given by the

then lawyers of Benecke before Mr Justice Cole,
which then led to this consent settlement, was the

fact that there was inadequate discovery.

Now, if we go back to what was said before

Mr Justice Cole; he said from the Bench - I have to

paraphrase it - I do not have documents before me -

that is what Your Honour is doing, and he quite

rightly asked, or I dare say, "Where are the documents?"; whereupon the solicitor sitting

alongside Margaret Beazley, Mr Peter Jackson, stuck

his head in a cardboard box and did not answer.

There were no documents, you see.

Discovery is very important because the events

that brought about the - the matter before the New

South Wales Court of Appeal is this rotten consent

settlement with Benecke. The facts that lead to

how that consent settlement came into place, which

is about to dispossess this women and they are

champing at the bit in spite of your undertakings

in the lower court to evict them, sort of, in five

minutes time. The arrangements, including the lack

of discovery, which we believe has all sorts of
connotations, but the lack of discovery was one of
the fundamentals that brought into place this

consent settlement. So it really is, we believe,

fundamental, Your Honour.

HER HONOUR: Well, either it was a consent settlement or it

was not.

MR HOINS: Well, we say it was not.

HER HONOUR:  I do not see how it bears on the question that

it was not a consent settlement.

MR HOINS: Well, His Honour Justice Cole, sitting on the

Bench, with the lady in question vomiting in a lavatory, not in the room, with a QC that did not

have a signed authority, said there was a consent settlement. We deny it.

HER HONOUR:	No, no. Were you seeking discovery again for the proceedings that came before Mr Justice Giles?
MR HOINS:	Ne; I do not think we did, Your Honour. What we

did is, we were pointing out - we asked for the

information that McLennon was retained to obtain to

be obtained, and it was never obtained, and

McLennon himself - it was on evidence - there is an

affidavit - and he was present in the court before

Mr Justice Giles, and subsequently, the subsequent stages of the drama, to say that he had been unable

to obtain discovery at any stage. So, in our

Benecke 21/6/93

contention,_ Your Honour, with respect, discovery is

important.

HER HONOUR:  It is important if it bears on the question

and, for my part, I do not see how this issue bears

on the question of consent settlement, or bears on

the absence of consent. I do not see what use you

sought to make of it before Mr Justice Giles.

MR HOINS:  Thank you, Your Honour. I take your point.

Before Mr Justice Giles, he asked in his judgment

that rhetorical question: why would Jackson do what

we say he did? Before Mr Justice Giles, early in

the piece, we were endeavouring to put in evidence,

or have argued, the relationship between all these

people. There was evidence, for instance, that

Hastie says he heard Mr Stefano, which was denied

by Mr Stefano, in the corridor, talking with their

then solicitor's boyfriend; that was disallowed and

he denied it anyway. We were endeavouring to

discover the relationship, the actual working

relationship, between these parties, which, on our

side, we say, was a conspiracy which led to the

consent settlement.

Now, I really do not want to take up all your

day here today but, 90 minutes before, on Monday,

29 June, Benecke and Hastie were in court to sue

this Bank which has taken oodles of time and

$75,0000 in cold cash. They think they are going

in there for a four-day trial of the Bank. Within

90 minutes they turned around to a consent

settlement where Benecke has got to pay the Bank

$1 million within 90 days or the property has gone.

Now, we have tried, on their side of the trial, to

ascertain the relationship between these people and

discovery is very important in that sense.

We are complaining - I take on board what you have just said, but we are complaining and have

been all along, of a conspiracy between these

parties to assets strip Miss Benecke.	Now the
absolute pursuit of getting this woman evicted,

where they will even ignore a supreme court judge's

order relating to notice and the sheriff there, as

I have said, he has never seen anything like it in his life.

HER HONOUR: Well, that is not a point that concerns this

Court. That is a point for somewhere else if you

wish to pursue it. So you have to come back to the

prospects of success in relation to your

application for special leave, really.

MR HOINS: Well, if we are before Your Honour, our prospects

are excellent. We maintain - I do not want to

belabour it - I have laid down the main grounds,

Benecke 25 21/6/93

the dreaded amended documents we will have on

Friday. We put to Your Honour with the greatest

respect and without belabouring any more, that on

the waiver of privilege we say that Benecke did not

waiver privilege. We say that as a point of law

it is absolutely fundamental that a type of

adversary system that we have in these courts that

Benecke did not waive her privilege. If any waiver

was brought on it was induced by Ms Beazley making

the allegations against Justice Cole that she made

on 29 June.

The disclosure of those allegations whether

now disputed by those lawyers or not, is quite

beside the point. The public interest required

something to be done about them being raised. we

believe it is a point of law and in ethics of the

legal profession that before a reasonable judge

will give us reasonable grounds. I think to repeat

myself would be to insult you and hold time up

unnecessarily.

HER HONOUR:  Thank you, Mr Hoins. Does Mr Hastie wish to

add anything to this?

MR MASON:	Thank you, Your Honour .. Your Honour on the discovery part - what I was trying to be brought
forward was the fact that in the initial discovery
I was never given access to - I asked for access to
from our solicitors and I just want to take you
through it so Your Honour can understand it. From our solicitor - Mr Jackson would not give me
discovery.
In the finish, three weeks before, I phoned Miss Beazley and asked Miss Beazley for access to
the discovery because there were two major points
in the case that I had brought up in this particular case. One was that Mr Langthorne, the
bank manager, made a statement which came four weeks before the hearing, saying that he never
approved the $600,000 for a negotiated bill
facility limit.  He had been increasing it as we
developed our business, but, in fact, in the
documents in the discovery, each week Mr Langthorne
over the period of two or three years, would make,
what he called a liability register so he knew exactly where we were week by week.

Now, we never got discovery of·that. I never

saw it.	I rang Mr McLennon and asked him and paid
him to go and do the bank discovery.	He went and

saw Jackson; told Jackson there were various things

that obviously were missing, which were these

liability registers. The other thing was,

Mr Langthorne said that he never gave the business

a $200,000 overdraft, and we had bank statements

Benecke 26 21/6/93

going to $198,755 - and I think it was 13 cents -

had been overdrawn - using that facility, but he

blatantly said in his statement that he never gave

us that facility. So, there are two major

elements, and then Mr McLennon did not really get

to see the discovery, but asked Jackson what these

particular things were, there, plus other things,

and Jackson said, "No, they are not there". And he

said, "Well, write them a letter and get those".

The letter was put on file with Mr Mclennon's

affidavit, to Justice Giles.

Now, those are only two of the things. There

are other points that were not - other discovery

that was not there, that Mr McLennon asked for, and

I believe, had those major points been discovered, then the whole case itself would have completely

developed as what Jackson and Beazley had told us -

Beazley always said we had 60 to 70 per cent chance

of success; Jackson always told us we had 80 or

90 per cent and told two of my business associates

that we had 90 per cent. They have given

affidavits in the court, as to what he told them

and they loaned money to help us fund the case on

the basis of what he said. When we got to court on

29 June, Jackson had not filed thin.gs; we had not

had this bank discovery, the whole thing was a

complete mess.

Then, after I would say, 40 or 50 minutes of the hearing proceeding we were told that there was

an adjournment sought.	We thought it was a morning
tea.	We went outside and -

HER HONOUR:	I am familiar with what happened then.
MR HASTIE:	I believe, had the discovery been full and

correct and even Mr McLennon got to see the filing

discovery for one hour on the Friday before the

Monday, and he said, "It is hopeless for me to do

it" and it is in his affidavit - - -

HER HONOUR:  Yes, but that does not bear on the question of consent, does it?

MR HASTIE: It is a nexus. It is locked, in my mind,

tog~ther, because of the fact that - - -

HER HONOUR:  Yes, well, it may be locked in your mind but

you could not have had discovery of those documents

in the proceedings before Mr Justice Giles.

MR HASTIE:	We did not have those, no.
HER HONOUR:	No .

Benecke 27 21/6/93

MR HASTIE:  We were not allowed to have those because we,

representing ourselves, we were not told we could

have those.	We did the best we possibly could
under those circumstances.	We were disadvantaged.

HER HONOUR:  For my part, I cannot see that the discovery is

a relevant matter in the settlement proceedings,

other than as background. You were entitled to

give evidence which I presume you did - - -

MR HASTIE:	Yes.
HER HONOUR:	- - - about the discovery.

MR HASTIE:  No, because we were not allowed. We tried to

bring on the affidavit on discovery. Mr McLennon

that is where it ceased. And that is why in the

gave that support to us in the trial before

Commonwealth Bank v Quade in the initial stages he was - the discovery was not full.

HER HONOUR:  Yes, but that is a different point, Mr Hastie.

The question in this case is one of consent to the settlement. That really is - - -

MR HASTIE:  Excuse me, Your Honour. Theoretically, had that

information been available at the time - or had our

legal people done that, there would not have been

any problem for a consent. There would not have

been a consent, because the case would have carried

on on those two extremely important parts, which

would have weighed against the Bank and in our

favour.

HER HONOUR: Yes. I understand that. Yes, thank you. Yes,

Mr Nicholas.

MR NICHOLAS:  If Your Honour pleases. We submit that the

application for leave would have no reasonable

prospects of success; that the case on appeal is,

in effect, unarguable and doomed to failure.

Your Honour, the judgment of the Court of Appeal, we submit, with respect, is manifestly correct, having regard to the factual material found by

His Honour Mr Justice Giles and about which the

Cour~ of Appeal were satisfied.

As Your Honour appreciates, Mr Justice Clarke

points out that this Court has already dealt with

the principles quite recently in Maurice's case

and, Your Honours, we would see that this matter

would raise no matter of public importance, or

public interest, of the kind that usually attracts

this Court's jurisdiction to grant special leave,

and we would submit, with respect, that any leave

Benecke 28 21/6/93

application would have no reasonable prospect of

success.

HER HONOUR:  Is Maurice the most recent case on point?

MR NICHOLAS:  I understood it to be so, Your Honour. As far

as this concept of - - -

HER HONOUR:  Yes. It is really a question of waiver, is it

not?

MR NICHOLAS: Yes, it is.

HER HONOUR: Implied waiver.

MR NICHOLAS:  Your Honour, as Your Honour has put back to

Mr Hoins, the plaintiff's case involved going into

the circumstances in which the settlement was

consented to or authorized. What is not before

Your Honour, I think, is the allegations in the summons, and the supporting material in support of

a claim which was dealt with by Mr Justice Giles to

set aside. But in it, as is summarized in the

Court of Appeal's judgment, there was extensive

material putting forward Ms Benecke's and others'

versions of the discussions between her and her

counsel, and it was by reason of that that the

Court of Appeal, correctly it is submitted,

concluded that Ms Benecke waived her privilege to

enable the truth of the matter to be disclosed; and

so it was. And we say, with respect, that that

sits with what this Court said in the quoted

passage in Maurice, which is at the top of page 10

of Mr Justice Clarke's judgment, Your Honour, and,

with respect, I cannot add to that.

HER HONOUR:  Yes. Anything in reply?

MR HOINS: Just briefly, Your Honour, that in the High Court

case, Jackson v Sterling Industries - and I

apologize, I cannot be more precise but I am sure

you know better than I do - - -

HER HONOUR:  I know the case, yes.

MR HOINS:  Thank you. Now, I understand there, Your Honour,

and J know you will correct me if I am wrong, that

there was a stay of proceedings in that case, not

on dissimilar grounds, although it was a copyright

case, and I understand that the same principle
applies in that we, all of us, should not disturb
the applicant in her assets - property - while the

proceedings are in progress.

Now, I know Your Honour is going to say that,

you know, we have to have reasonable grounds of

success before you will do anything but we complete

Benecke 29 21/6/93

by just simply saying that the matter is not a

passing interest. It has been causing travail now

for 11 months. Matters are on foot in the lower

court. I know Your Honour does not want to

interfere with the lower court proceedings. The Bank has not acted properly in regard to a court order. They have got a sheriff sort of champing at

the bit to evict these people while we are in court

tomorrow. All things on balance, the Bank has not

acted, in our view, properly in any sense at all

and we submit to you with respect that we do have,

in fact, at least reasonable grounds and we should

be allowed to run that time rather than have

Benecke dispossessed by these people at least until

we get before a supreme court judge.	You know, at
the very least.

If you are not prepared to, in effect,

supervene on a supreme court judge, then at least

give us breathing space so that we can do it which

is what Justice Smart ordered these people to do on

27 May. Now, you know, it is not for us to deal

with a contempt of court with you by these people
but that is all we are asking, and we do not think

it is too much to ask.

HER HONOUR:  But the contempt of court will not necessarily

go to the execution of the writ, will it?

MR HOINS:  No. No, indeed, Your Honour. You see, the point

is that the Bank - Mr Nicholas is not involved, but

Ms Bergin and these other people sitting behind

Mr Nicholas were certainly involved. They are

champing at the bit to evict this sick lady where,

in fact, they are in contempt of a supreme court

judge. All we are asking is that nothing happen

until we get before a supreme court judge to have

the matter sorted out at that level.	Now, that
will be at 10 o'clock tomorrow morning.

Now, we are not trying to misuse or abuse the process of this Court.

have reasonable prospects which will be documented You know, our position is we

by Friday.	I will not waste time going over all
that again.	we are before a supreme court judge

tomorrow. I do not know who it is yet. We will be

raising this whole business of a stay then. In the

mean~ime, these people have shown themselves to be

in contempt of a supreme court judge and they should

be held at bay at least - and you are a superior

court judge, we cannot go any higher than you -

until the propriety of these lawyers - not .

Mr Nicholas, the other lawyers - is dealt with and

we can argue a stay at that level.

Benecke 30 21/6/93

If Your Honour cannot oblige us at least until

10 o'clock tomorrow, you see, then they will try

and get the bailiff out there in five minutes.

HER HONOUR:	I have no power to grant you a stay even for five minutes unless I am satisfied that you have
reasonable prospects of success in your
application. But I will ask Mr Nicholas: what is happening?

MR NICHOLAS:  Your Honour, what is happening is this: can I

first deal with this question of suggested

contempt, Your Honour? It has been raised a

number of times and I have stepped aside because

Your Honour was concerned, but I am troubled about

it. It is sufficient to say this: in the

affidavit filed by Ms Benecke in support of her

summons for today, Your Honour, there is annexed to

it the note of the associate's transcript. It is

annexure C to her affidavit. Her affidavit is the

one

HER HONOUR:  Yes, I have got that.

MR NICHOLAS:  I am trying to find the date, Your Honour. It

is annexure c. Your Honour may see the handwritten

note. It is just simply incorrect to say that

there was an order or an undertaking to the effect
that some 48 hours notice, and so on, would be

given.	I just wish to draw Your Honour's attention
to that.

MR HOINS:  Your Honour, I object most strongly to that.

What Mr Nicholas is saying is literally correct.

The document itself is not correct - is absolutely

not correct.	We have the affidavit; we have the
tape.	We will certainly argue this in another

place at 10 o'clock tomorrow morning. With respect

to Mr Nicholas, that is not correct.

HER HONOUR: Well, that is not a matter for me. What has

happened to the writ?

MR NICHOLAS:  The writ - it is this: the sheriff has been

requested to take no action in respect of the writ

today.

-

HER HONOUR: -Today.

MR NICHOLAS:  And we gave that written request to him on

Friday. So, he has been requested not to do

anything today. Your Honour will appreciate it is

a writ for possession rather than sale and matters

which may or may not follow after that. The

expectation, as a matter of reality, would be that
the sheriff then would probably have to issue a

fresh notice some days before a notice was issued

Benecke 31 21/6/93

putting Ms Benecke on notice that she would be

evicted, if she did not go on various occasions during the course of today. Now, that has been changed.

My expectation is that fresh notices would

have to be issued and the timing of them, of
course, would be up to the sheriff. But I think

that answers Your Honour's question. Once again,

we would just simply emphasize we are seeking to

enforce our rights under an order for possession

rather than for one of sale at this point.

HER HONOUR:  Yes, thank you. What further did you wish to

say?

MR HOINS:  I would like a copy of that, Your Honour. We

cannot trust the Bank as far as I can throw them,

you see. We will deal with that other matter

tomorrow. If the Bank has given instructions to

the sheriff - although I know it has nothing to do

with Your Honour and I do not want to trespass on
your time anymore - but I would ask Mr Nicholas for

a copy of that instruction to the sheriff so that

we know that it is true for a change. Not

necessarily right now, but I mean, you know, today,

so that we know it is true.

MR NICHOLAS: Well, Your Honour, those are my instructions

and I have conveyed them accurately to Your Honour.

MR HOINS:  Look, Your Honour, I do not want to belabour this

but say we were before Justice Smart.	They gave
undertakings which they dishonoured.

HER HONOUR: That is not a matter that is involved in

today's application .. You can have a copy of the

transcript tomorrow morning. You can have a copy

of the transcript, the relevant page of the

transcript, as soon as it is available. It can be faxed through to the Sydney Registry as soon as it

is available. It will be some time tomorrow.

MR HOINS:	Thank you, Your Honour.
HER HONOUR:	Do you have something further to say?

MR HOINS:  No: I think we have all had enough, thank you,

Your Honour.

HER HONOUR:  The bases on which a stay of proceedings will

be granted by this Court are well known. It will

be granted only in exceptional circumstances which,

in practical terms, means that it is necessary to

preserve the subject-matter of the proceedings and, in a case where special leave has not been granted,

Benecke 32 21/6/93

where there are reasonable prospects of success of

that application.

The application is yet to be heard and it is

preferable that I not say very much on that

subject. It is sufficient to say that I have not

formed the view that there are reasonable prospects

of success and I therefore decline an application

for a stay. The application is dismissed.

MR NICHOLAS:  I ask for an order for costs, Your Honour.

HER HONOUR: You have asked for costs. Costs: do you wish

to - - ~?

MR HOINS:  No, we would reject costs, Your Honour. Thank

you, first of all, for giving us your time this

morning.	We would argue against costs,
Your Honour.	We are going to be afoot tomorrow

over the way the Bank has - not Mr Nicholas - but

the other lawyers who have conducted themselves in

this matter, Your Honour. We would ask you to give

the protection of the High Court to Ms Benecke who

is both bereft of money and is in a serious medical

and psychiatric condition. She really is. We

would ask the - here we have the largest bank in

Australia, the most wealthy financial institution

known to man in the Commonwealth. We have been

before Your Honour in honesty this morning and
honestly believe in our cause.

We have lost, and we accept that with some dignity, one hopes, and we ask you not to award

costs against Ms Benecke.

HER HONOUR:  The normal course, I am afraid, is that costs

follow the event.

MR HOINS:  But you are a High Court Judge, Your Honour, you

can do anything.

HER HONOUR: Well, that is not true. That is a point of

view that some people wish to assert but it is not
true.	The application will be dismissed with
costs.

MR NICHOLAS: If the Court pleases.

HER HONOUR:  The relevant part of the transcript will be

faxed to the Sydney Registry as soon as it becomes

available tomorrow. If you have a fax number, if

you would give it to Mr Registrar who will fax the
pages of the transcript to you or make such other

arrangements as you wish in that regard.

MR HOINS:  Thank you, Your Honour.

Benecke 33 21/6/93

HER HONOUR:  We will now adjourn.

AT 11.41 AM THE MATTER WAS ADJOURNED SINE DIE

Benecke 34 21/6/93