Burke v Bohines Pty Ltd

[1989] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A42 of 1988

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

BOHINES PTY LTD and THE

DISTRICT COURT OF ADELAIDE

Respondents

Application for special

leave to appeal

MASON CJ
DAWSON J .

GAUDRON J

Burke(2)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 24 AUGUST 1989, AT 9.45 AM

Copyright in the High Court of Australia

AlT2/l/RB 1 24/8/89

MR P.D. BURKE:	I appear in person in this matter, Your Honour.
MASON CJ:	Yes, Mr Burke.
MR BURKE:	I am seeking dispensation by t.his motion from the

provisions of Order 69A rule 11. I should say

straight away, Your Honours, that I have read the

report of the Court's decision in COLLINS (HASS) V REG
of 1975 and also the transcript of the PLENTY V MUNT
hearing here in Adelaide, I think about this time
last year. I am content to seek the same kind of
dispensation as the present Chief Justice, Your Honour,
offered in the latter case on the same grounds, the

Plentys being also, as I understand it, litigants in person who had been unable to obtain legal

representation.

I have set out in the affidavit and in the

application book some details of that on which I

would be prepared to answers if Your Honours wish.

MASON CJ: First of all, I think you are confronted with this

situation that the rules require the presentation of

an application for special leave by counsel. Now,

assuming, as I was inclined to think in the case of

PLENTY, that the Court has an inherent jurisdiction

to dispense with the requirement of that rule, it

seems to me that extraordinary circumstances must be

shown. Now, the safeguard that lies behind the

rules, or the safeguard that the rule is endeavouring

to achieve, is that special leave applications will

be presented in accordance with the advice given by

lawyers. In other words, that the requirement that

there shall be a lawyer to present the application

itself results in some filtering of the applications

that might otherwise be made to the Court.

MR BURKE:  Quite so, Your Honour. I would none the less, with

respect, submit that the conditions - my circumstances

are quite extraordinary.	I cannot explain why they
are, but I do submit they are quite extraordinary.	I
do not know if Your Honour has glanced at pages - - -

MASON CJ:  We have read the materials in support of the

application, Mr Burke.

MR BURKE:  I would hope that you might consider they are

quite extraordinary. I find them so. I got to the

stage I really do not know what else I could have

done. There is surely a point at which one must stop

going around and approaching new sets of solicitors.

MASON CJ:  Yes, I think that is true, but the difficulty may

be occasioned by the very nature of the application

you wish to bring to the Court. As you are no doubt

aware, special leave is granted by this Court only

in relation to matters where it considers that

AlT2/2/RB	2	24/8/89
Burke(2)

important questions of principle or matters of

public importance should come to this Court. Now,

you are seeking to appeal ultimately against an

order in which the master directed that notice be

given to the other side, so that the other side

could be represented and heard on the hearing of

your application for leave to issue a summons.

MR BURKE:	For leave to serve, yes, Your Honour.
MASON CJ:	Now I can only say to you, Mr Burke, that it is

quite extraordinary that an appeal against such an

order should deserve the grant of special leave.

MR BURKE:  On the face of it, I would have to concede that

perhaps that is so, but I would hope that Your Honours

would give some consideration to the overall

circumstances of that matter which are set out on
page - in answering that question or trying to answer
that question on page 6 of my book as to why the
application itself and the questions of law which are

specified do, in fact, justify special leave being

granted, the three question which I would submit

I raise, with respect, are surely very important

principles and some of them, of course, are so old

and so established that no comment need be made about

them as to that. But none the less they are

important to be reasserted as the occasion needs and

when they do come up again, which I submit they do

come up from time to time and I suggest that this case

is perhaps one of them.

MASON CJ: Yes; but Mr Burke, judicial officers have a broad

discretion to grant or refuse an adjournment or to

order an adjournment and they have a broad discretion

to decide whether or not they will hear an application

ex parte or direct that process be served on the other

party so that it becomes an inter partes hearing. And

that being so, it is very difficult indeed to show
that there is a point of principle or an important

point of principle involved in the making or the

refusing to make such an order.

MR BURKE:  You do not give any credence to the issues that I

have raised, as I have raised them, I mean in the

Tenancies Tribunal and then an applicant for judicial review from that, the nature of that appeal. It seems to me in all that the

circumstances going back of an applicant to the the Residential

principle which I have identified on my third

principle on page 6, that the public interest is not

served by allowing unnecessary - sorry, that is

not the one, but it is one of them - is not served

by allowing unnecessary obstacles in the path of

personal litigants. Now, that is the minor one here.

AlT2/3/RB	3	24/8/89
Burke(2)

The second one:

the courts should not be seen to be thwarting

legislation (or the associated public interest) - And I would just say there that the purpose, surely

one of the purposes -

of the residential tenancy legislation includes

the provision of an effective but inexpensive

means of resolving specialised disputes (in

which the public can have confidence); if an

appeal mechanism is provided-

as it was obviously, this does involve some -

risk of substantial extra costs, but that

is no reason to let them explode -

without good reason which I would submit did in fact

happen in this case. I hope it is not being too

suspicious to see in all that - to detect in all that

what the independent observer would reasonably

suspect of being a hindrance to carrying on.

Obviously the area between the legislature and the

judiciary is - I understand very well that the

boundary mark between the two is sometimes

controversial but I am sure Your Honours would not

suggest that this particular conflict should in fact

arise.

I would suggest that it is in the public interest;

it is a matter of importance that there should not be

seen - it should not happen, it should not be seen to

happen that the courts are, in fact, in whatever way, however shall way in the actual incident, interfering

with the intent of the legislation and the legislation
surely - I think I could refer to Professor Bradbrook's

.. book on the RESIDENTIAL TENANCIES ACT to support the proposition that is, in fact, one of the major

purposes of the legislation and perhaps common sense

would say the same thing too, to provide an

efficient and cheap means of resolving these disputes

at minimum costs.

There is this other thing, of the personal

litigant, which is a similar thing. It is enshrined

in the JUDICIARY ACT, at any way, as we now refer to.

There is ability - the freedom of the individual to

litigate in person. However unwise or however hard a rood

that is at times, as I have discovered, none the less

I am sure the public interest is not served by placing

unnecessary obstacles in that particular path. Of

course, the first point which surely is of importance, and the only question is does it really arise here, is

the fact that the Court should be seen to be impartial.

AlT2/4/RB	4	24/8/89
Burke(2)

That, of course, as I understand well, is one of the foundation stones of the whole system. So it

does seem to me, with respect, Your Honours, that

these three very important issues are raised by the

grounds of this application and by the 13, I think,

associated questions of law which I would deduce from

those grounds and the associated facts as arising.

Of course, I would hope that you would let me go on

and speak about those briefly from the book.

MASON CJ:  But you must direct your attention to the order that

was made by the master. It is that order that is

the subject of your application for special leave to

appeal, not the order that was made by the Residential

Tenancies Tribunal.

MR BURKE: Certainly. That is indeed the central order, but

it does seem to me that that order by Acting

Master Boehm, with respect, despite what you have said, although clearly within his powers was none the less

made for an improper purpose and was in fact ultra vires

in the broad sense. I have complained about the

procedural injustice of the way that order was made.

I was given no opportunity to be heard at all

basically and the master just more or less rushed me

out of his office. That is not quite true, but in

effect that is what happened. I did not have a

hearing and you did talk about the master's discretion

and surely the proposition is true thatthe exercising

the discretion must be conducted judicially.	I submit
that it was not in this case.

I have referred to Mr Galligan's book - - -

MASON CJ:	The point is you were not shut out. All that the order did was to require you to give notice to the
other side.  It would have resulted in an inter partes
hearing in which you could have presented your case.

MR BURKE:  Certainly. But there would have been an escalation

of costs at that stage certainly, and perhaps overall,

which seems to me to have been quite unnecessary and,

in the circumstances of someone coming from the

RESIDENTIAL TENANCIES ACT, that does seem to me to be a little bit improper and for that reason it does

seem to be quite an important point, therefore that I

should have been allowed natural justice in the

exercise of that discretion which I clearly was not.

If I could just make that point. Obviously the

exercise of some discretions is quite a trivial matter

and nobody would seriously suggest that you should

make a big deal about it, but it seems to me that this

was quite an important one in this context and

therefore, as Mr Galligan would support in his book

and perhaps Your Honours would support, this was a

case in which the exercise of this discretion should

AlT2/5/RB	5	24/8/89
Burke(2)

have been exercised fully judicially with offering

me a hearing and reasons given. Now, I was not

given a hearing. It seems to me that there were no

proper reasons for the decision that the master made

because all the obvious ones for making such an

order just were not there and he certainly did not

offer any.

And it does seem to me, if I can make the further

point, that the nature of this preliminary hearing,
the basic purpose of this as I think I have referred -
there is the reference there to that famous case in
Britain, in England, surely one of the purposes of

that preliminary hearing, as well as protecting people

from misconceived proceedings for a judicial review,

is also to protect the person initiating them. So

that if in fact there is something grossly wrong, if
the matter is misconceived, before something is
served surely that is the time for the master or the

judge, whoever it is, to point out what those

misconceptions are. And the applicant presumably

would go away happy too, instead of being left

completely in the dark.

In this case I would submit there was absolutely

no reason at all for that procedure - no good reason

at all for the master to adopt the procedure that he

did take. So it does seem to me that there was,

apart from the procedural injustice, in fact there was

a misuse of the master's discretion. He had no good

reasons for exercising his discretion as he did, so

he effectively abused his discretion and acted

ultra vires in the broad sense. That, as you have

pointed out, is the central issue of the whole thing.

The other matters that I have raised arise around

that. The subsequent decision of Justice Bollen and

the way that also infringes on some of the genuinely

important principles of law.

MASON CJ: Yes. Is there anything else you wish to say,

Mr Burke?

MR BURKE:  I could go through this in more detail as set out

in the book.

MASON CJ:	You can take it we have read the material.
MR BURKE:	Yes, I understand that, Your Honour. I think basically

I have covered the main points I really wish to make -

which I would make had you permitted the dispensation.

MASON CJ:  The Court will take a short adjournment in order to

consider the course it will take in this matter.

AT 10.02 AM SHORT ADJOURNMENT

AlT2/6/RB	6	24/8/89
Burke(2)
UPON RESUMING AT 10.07 AM:

MASON CJ:  Assuming that the Court has a discretion in the

exercise of its inherent jurisdiction to dispense with the requirement prescribed by the rules that

an application for special leave to appeal be

presented by counsel where special or extraordinary

circumstances can be shown to exist, we do not think

that this is such a case. Having regard to the
nature of the order from which the applicant seeks to
appeal and the history of the matter, including the
nature of the order made by the master, it would not
be a proper exercise of the Court's discretion to
depart from the requirement that the application be

presented by counsel in this case if it is to be

presented at all. We say, "if it is to be presented

at all" because the master's order was a discretionary

order requiring an inter partes hearing and the
challenge to it does not seem to raise any question of

general principle.

The application is therefore refused.

AT 10.09 AM THE MATTER WAS ADJOURNED SINE DIE

AlT2/7/RB	7	24/8/89
Burke(2)