Burke v Bohines Pty Ltd

[1989] HCATrans 179

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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

DISTRIC7 COURT OF ADELAIDE

Respondents

Application for direction to

Deputy Registrar to list

matter for hearing

DEANE J

Burke

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 22 AUGUST 1989, AT 9. 18 AM

Copyright in the High Court of Australia

A2Tl/l/RB 1 22/8/89

HIS HONOUR:	You are Mr Burke, are you?
MR P.D. BURKE:	I am Mr Burke, Your Honour.
HIS HONOUR:	Yes, Mr Burke.
MR BURKE:	I have, Your Honour - it is a preliminary matter -

another short affidavit which I have had sworn now,

just few minutes ago, which I think may be relevant

to this matter.

HIS HONOUR: Certainly. Hand it up.

MR BURKE:  There are a couple of references to which - that

is the one-page affidavit and those are the references

which Your Honour might find useful.

HIS HONOUR:  I have read the papers, Mr Burke, and I will just

read this, if you can just sit down for a moment

and if you prefer to conduct the matter sitting down

it is a matter for you.

MR BURKE:  Thank you very much.

HIS HONOUR: Yes, I have read that, Mr Burke. All I am

concerned with now is the summons dated

7 July 1989 in which you seek an order that your

application for special leave to appeal be listed

and consideration of a claim for damages.	That is
the only matter before me now.	Do you follow that?

MR BURKE:  Yes. So, there is two aspects of one matter, yes,

Your Honour.

HIS HONOUR:  Yes. Now, the first aspect of tha~ your

affidavit indicates that the applicatiou has been

listed, although somewhat sooner than you would

wish. Is that so?

MR BURKE:  Yes, Your Honour, certainly.

HIS HONOUR:  In terms of it being sooner than you would wish,

that is not something that is in my control. It is

now in the control of the Full Court. If you wish

to make an application for an adjournment if it

comes on before you are ready, that will be a matter

for you when it comes on although I should tell you

that because of the problems of airline strikes or

airline restrictions· and people coming backwards

and forwards, quite a few people have been

inconvenienced in relation to the list this

sittings but that is by way of information not

by way of discouragement to apply for an

adjournment or anything.

MR BURKE:  Thank you very much.

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Burke

HIS HONOUR:  That leaves the consideration of the claim for

damages. Do you wish to press that?

MR BURKE:	Yes, I do, Your Honour.
HIS HONOUR:	Very well, I will hear what you have to say in

relation to that.

MR BURKE:  I have a list of points which seem to me to be

relevant. Of course, some of them may not seem

to be at issue as far as you are concerned, of

course, but perhaps I could just outline those.

HIS HONOUR: Certainly.

MR BURKE:  The first thing was, it seemed to me, that I should

be clear about was the jurisdiction of the Court to

hear this matter and I do not know whether I can
assume that there is no difficulty there or whether

you would want me to - - -

HIS HONOUR:  No, I think you should assume there is a difficulty.

MR BURKE: I should assume it, all right. Well, if I just

list the points to start with?

HIS HONOUR:	Yes.
MR BURKE:	The second one was the existence of the tort of

misfeasance in public office; thirdly, the question

of the independent discretion of the Deputy Registrar.

The next - - -

HIS HONOUR:  Mr Burke, I think I can make your task easier if

I indicate to you that what you should direct your comments to is this: that before an action would

lie against the Deputy Registrar, you would need to

identify what you allege she has done which makes her

liable in damage, damages for any tort; nJt so

much the law, what you allege she has done. Are you in a position to formulate precisely what it

and identify to me the material that supports it? is, as a matter of fact, you allege she has done

MR BURKE:  It might be that I am only claiming nominal damages

because of what has been done to me and partly because

I ignored what she did but I was just going to say

that, in fact, I would be arguing that this is

arguably actionable per se and a peg for hanging

on aggravated or exemplary damages.

Basically, I consider that the Deputy Registrar

acted not in good faith, caused me a considerable

expended a lot more effort and time than, in fact, I

amount of harassment, I would say, caused .me - had

did although I did, in fact, spend quite a lot of

A2Tl/3/SH	3	22/8/_89
Burke

time and effort making this application. I was

forced to make one aspect of this application to

the Court to have the books listed so that, in

fact, is perhaps a nominal amount but I was forced

to do this, to go to the effort and use resources

and time to make this application, the summons and

prepare this affidavit, to apply to the Court to

have the matter listed and the books accepted.

That plus the general, perhaps, mental distress

associated with that is the essence of my claim, as

a factual matter on the basis of my claim for damages.

HIS HONOUR:  I will just ask you one other matter: is there

any factual material apart from that that you have

put before me that you wish to rely on - - -

MR BURKE: No, Your Honour. It is all there. It is either

there or it is not.

HIS HONOUR:  I will just look at these authorities. Mr Burke,

I am acquainted with what is said in these and with

most of the works. I am prepared to assume the

correctness of the proposition that public

authorities or officers may be liable in damages

for malicious or injurious wrongdoing and that the

convenient name for that liability is misfeasance

in public office which is what you have identified.

I have examined the factual material and I have

given consideration to what you have said but, in

my view, the factual material before me does not

establish the requirements of such an action in
the circumstances of this case.

That being so, I propose to deal with the matter by dismissing the summons. There would

be other problems if I had not been of that view

in that if there were factual material that raised

what seemed to me to be an arguable case I would have directed that you file a statement of claim

setting out the factual material. It seems to

me, however, that there would be no point here in

doing that and, as I say, the order I propose to

make is simply one dismissing the summons. It

will be a matter for you as to whether you wish

to appeal or seek to appeal from that order or not but that determines this particular matter

so far as I am concerned, at this level.

MR BURKE:	Could I clarify something on that, Your Honour?
HIS HONOUR:	Normally - - -
MR BURKE:	Normally not.
HIS HONOUR:	- - - a litigant is not allowed to ask a question

at the end of a judgment but, since you are appearing in person, we will make an exception to the norm, yes.

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Burke

MR BURKE:	Well, what I was trying to clarify in my mind
is, does that mean that you reject the idea of
the tort, if it is so called, is actionable per se or is the question of the malice - I have not
established the malice of the -

HIS HONOUR:  No. What I am saying is: I am prepared to

assume the existence of the action or, what I said

was, I was prepared to assume the existence of the

action but there is nothing before me which, in

my view, would warrant the conclusion that the

facts made out the necessary basis of the action.

That is as far as I can take it.

The order I make is that the summons be

dismissed.

Mr Burke, my associate will give you back

the authorities in case you need them for other

purposes.

MR BURKE:  Thank you very much, Your Honour.

AT 9.31 AM THE MATTER WAS ADJOURNED SINE DIE

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Burke