Burke v The University of Adelaide

[1990] HCATrans 284

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1988

B e t w e e n -

PHILIP DAMIAN BURKE

Applicant

and

THE UNIVERSITY OF ADELAIDE and

THE UNIVERSITY OF ADELAIDE

STAFF ASSOCIATION

Respondents

Application for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

Burke(6) 1 16/11/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 NOVEMBER 1990, AT 3.30 PM

Copyright in the High Court of Australia

MR P.O. BURKE: My name is Burke, Your Honour. If the Court

permits, my nephew will assist me with materials.

MASON CJ: Yes, Mr Burke.

MR BURKE:	I have three items that I wish to submit to - - -
MASON CJ:	Now, before we come to that, there is a question

whether or not there is any appearance on behalf of

the University of Adelaide and the University of

Adelaide Staff Association. I think you stated on

a previous occasion that they would not be

represented at the hearing of this application.

MR BURKE: Yes, Your Honour.

MASON CJ: But perhaps they should be called outside the

Court. Would you call the University of Adelaide

and the University of Adelaide Staff Association?

Mr Burke, they were served, were they, with -

MR BURKE:  Yes, Your Honour. They indicated some time back

that they would not since - - -

MASON CJ: Yes, I noticed a reference to that in the

transcript. Is there an affidavit of service

anywhere?

MR BURKE:  No, I am afraid not. I believe both of them have

informed the Registrar in writing though.

MASON CJ:	Mr Registrar, do we know officially that they are not going to appear? They are not going to appear.
There are letters on the file. Yes, well you can
proceed with the application, Mr Burke.

MR BURKE: There are three items, Your Honour, which I would

hope to make some reference to each of an outline

of - - -

MASON CJ: Well, the first thing that confronts you is the

need to secure leave, if the Court has jurisdiction

to grant it, dispensing with compliance with a rule	that requires that applications be presented by
counsel.

MR BURKE:  Yes, Your Honour.

MASON CJ: Now, on a previous occasion, I think, in an

application to which you were a party, the Court

took the view, there being, I think, no objection

on the part of your opponents on that occasion,

that it would allow you to look to the substance of

the application as a matter that the Court would
take into account in deciding whether it would

dispense with compliance with the rule on the

Burke(6) 16/11/90

assumption that the Court had jurisdiction to so

dispense.

MR BURKE: So, if I understand you correctly, we will look

at the two things together?

MASON CJ: Yes.

MR BURKE:  In doing that, in looking at both aspects, I

would like to make some reference to some of these

materials.

MASON CJ: Yes, very well. I should say, Mr Burke, that

there are letters on the file which indicate that

the respondents did not intend to be represented or

to appear on the hearing of this application.

MR BURKE:  Thank you, Your Honour. I will seek to make some

reference to each of those items. It is a book of additional documents, some extracts of authorities

and an outline of argument which I would only sort

of make some reference to in the context of today.

On the question of the dispensation, as I see

it, the Court has powers within Order 64 rule 2 to

do that without, it would seem to me, resorting to

the inherent jurisdiction. Professor Campbell's

book seems to argue along those lines on that

power.

MASON CJ:  We will assume for present purposes that the

Court has jurisdiction to dispense, whether

inherently or otherwise.

MR BURKE: Right. Yes, you did say that, Your Honour. My

main basis for seeking the dispensation is covered

in that application to join which is document 2 in

the book of additional documents and the supporting

affidavit which basically sets out my problems over

an extended period of time in trying to obtain

representation and I have no explanation to offer

for those circumstances, but they do go on over a

considerable period of time.

The application is, of course, an application

to join a whole host of defendants including
various firms of legal practitioners in Adelaide,

an application which I filed last year before the

Full Court appeal. It was an application to consolidate that action and at the same time an application to join additional defendants with new

causes of action.

MASON CJ:  Maybe, but we are not concerned with that,

Mr Burke, we are only concerned with your

application for special leave to appeal in relation

Burke(6) 16/11/90

to the order of the Full Court on appeal from the

master.

MR BURKE:  Yes, Your Honour, but the circumstances in the

affidavit which justify that are the ones which I

would seek to rely on in relation to justifying the

fact that eventually I was forced to try to act for

myself and get involved.

MASON CJ: Yes.

MR BURKE:	So, perhaps the Court only needs to have a quick glance through those circumstances and just to see
how far I did pursue the matter which was
considerable. There are quite a number of firms of
solicitors involved. Three, if I had a cause of
action against them - it is over the limit, so I
did not mention them.  I have not given them names
but then there are quite a number of firms:
Morcornbe Vickery, item No (ii) and Knox and
Hargrave. Those are the two main ones following
the earlier three.

Not only did I pursue those matters, I also

went to the Legal Practitioners' Complaints

Committee and I found that I got an unsatisfactory,

in my view which I am quite firm about, treatment

and I pursued appeals or complaints about that to

the Law Society and the Attorney-General's

Department; the Attorney-General, in his relation

to the lay observer, as a member of that Legal

Practitioners' Complaints Committee.

If the Court wants me to go into it any

further it would be on that first basis that I

would argue that I really did explore the avenues

perhaps beyond what was reasonable over a period of

some years before I finally started, from

compulsion, in 1984 to act for myself by initially

seeking an application for discovery before - - -

MASON CJ: For the present, let us assume that you made

sufficient efforts to obtain the services of legal

practitioners to act on your behalf.

MR BURKE: Thank you, Your Honour. Could I just, before I

leave that: it seemed to me, and it may be that I

am missing something, but it did seem to me,

although I do not have precise authority on the

point, that some of those matters, the ones

involving people in the University, because they
involve - which is later in the book, section 7,

page 12 of that book of documents - interpretation

of University regulations and statutes they would

arguably, I would submit very strongly, involve the

jurisdiction of the University Visitor and I would

argue later if I may that that might be something

Burke(6) 4 16/11/90

which properly the Court could take into account,

but based on the fact that none of these orders

were drawn up at the point that this application
was filed - and I may be missing something but I am
not aware of it - last year, it seemed to me that that action was still part-heard essentially. It was not functus officio, if that is what you say,

and on that basis those things were still joinable

at that time. So, if I could possibly just mention

that and seek possibly to refer back to that as

something which might be of interest to the Court

in considering the jurisdiction of the University
Visitor later.

Your Honours, clearly, from my special leave application book, the essence of my application for

special leave is to do with the jurisdiction of the

University Visitor and if I could I would just

offer you a very brief summary of the authorities

relating to that jurisdiction as I see it.

The Patel case which is mentioned in my list

of authorities, and there is a brief excerpt that I include, it talks about the convenience and lack of informality and general usefulness of the

institution of the University Visitor.	I will not
read that to you.	It is a brief paragraph but I

will-not read that to you. That is the essence of

it ..

The leading English case, however, is Thomas v

University of Bradford which is the main item on my

list. This is a House of Lords decision in 1987

which has been applied half a dozen times since.

There are three major aspects which it laid down

with authority. The first one was - three aspects

of this Visitorial jurisdiction - the exclusiveness

or exclusivity, whichever word suits one. The

exclusive nature of the jurisdiction was forcefully

re-established by the House of Lords overturning

the holdings at both the levels below, the district

court and the Court of Appeal. There, that is the

Court of Appeal, Lord Justice Lloyd had seen the

concurrent jurisdictions with essentially the court	jurisdictions of court and University Visitor as
giving to the University Visitor the bits that it did not want to deal with, the ones that it clearly did not want to get involved in.

Arguably, this was the approach taken in New

Zealand also in Norrie v University of Auckland

Senate which is mentioned down the bottom.

MASON CJ: But now, Mr Burke, before we go any further in

relation to your submissions concerning the

University Visitor, how does the jurisdiction of

the University Visitor have anything to do with the

Burke(6)	16/11/90 remedies that you were seeking in the statement of
claim that has been struck out? Now, as I
understand it, you were complaining about two
things: one, a contract that you allege that you
had with the University that you say was wrongly
terminated or breached and, secondly, you have a
complaint of a kind that there was
misrepresentation on the part of the University, on
the part of the Staff Association as to your status in the University.
MR BURKE:	Yes, Your Honour.
MASON CJ:	And you sought relief in your statement of claim

and I understood that that relief was a claim for

damages for breach of contract and/or

misrepresentation and a claim in the nature of

specific performance of your contract.

MR BURKE: Although I would rephrase that, yes, but still

that is the essence of it. Yes, I would rephrase

that -

MASON CJ:  What has the jurisdiction of the University

Visitor got to those claims for relief?

MR BURKE: Well, the point - just come back to what is the

scope of the University Visitor's jurisdiction.

Not only is it, according to the House of Lords, exclusive but it also has a much wider scope than

was laid down by the previously leading case

which - - -

MASON CJ: But you were seeking relief from the courts in

your statement of claim, you were not seeking

relief from the University Visitor.

MR BURKE: Yes, Your Honour,· and I also went to the

University Visitor. I served the University

Visitor with this and the University Visitor

declined - he did not decline jurisdiction, he
considered it was not within his jurisdiction right

at the start. But the point, with respect, surely

is that whether he likes it or not the supreme

court has a supervisory responsibility.

MASON CJ:  Maybe, but if you have got a complaint or a cause

of action against the University Visitor, and I am

not suggesting for a moment that I am suggesting

that you have, but if you have, then the

appropriate course of action is proceedings against and misrepresentation, the claim against the
the University Visitor, but in a suit against the
University itself and the University Staff

University Visitor, as such, seems to be irrelevant.

Burke(6) 6 16/11/90

MR BURKE: With respect, Your Honour, the question is where

does one draw the line between what is in the

exclusive domain of the Visitor and what is in the

domain of the courts.

MASON CJ: Yes.

MR BURKE:  And the job of deciding that is, with respect, in

the court in its supervisory responsibility, it

cannot escape that. I mean, if these matters are -

and I submit most, if not all, of that statement of

claim of mine, even as it stands and as I would
modify it - most of it and probably all of it is,
on the basis of Thomas, if this Court would be

persuaded by that - would all be within the

exclusive jurisdiction of the University Visitor.

MASON CJ:  Can we come back to what is the subject of this

application and that is your application for leave

to appeal against the judgment of the Full Court

upholding the decision of the master.

MR BURKE: Well, the master struck out my action as a whole

for want of prosecution. I would say that in doing so, and despite the fact that this - and previously two masters had struck out my statements of claim,

the first one, in the court setting no doubt, but taking no account of the fact that I would submit

it should have been referred to the Visitor at that

stage or adjudicated on.

Master Burley struck out my whole action for

want of prosecution. I would say that, in fact, he

had no right to do that because it was not within

his jurisdiction to do that because it was a matter within the jurisdiction of the Visitor, most of it, and all of it - probably all of it - and the same

complaint I would make about the two previous
decisions of the master in striking out my initial

statement of claim and the revised one that you

have in the book. Those matters - the whole point

about the University Visitor, when it is seen as an

advantageous institution, is it is seen as an

informal thing where strict rules of pleading do

not apply. So, therefore, the fact that it was

technically incorrect should not have been all that

relevant and that what was needed right at the

start was a ruling on where that jurisdiction lay.

If it was all within the University Visitor's

jurisdiction, well that should have been said.

The fact that the supreme court has ignored it

does not mean that they cannot escape the

supervisory jurisdiction. What they are doing, I

put to you, is ruling implicitly either that the

University Visitor has any - they are either

denying that the University Visitor has any

Burke(6) 16/11/90

exclusive jurisdiction at all which would be

consistent with Norrie, and the Court of Appeal in

Thomas or, alternatively, they are asserting that

all my statement of claim is outside its scope, one

or the other, they cannot escape. In both cases,

in either case, they are, I would submit, erroneous

in terms of the authority as it presently applies

and as I would urge you to endorse.

The supreme court has not specified what it

was doing but I would put to you, implicitly, it is

doing one or other of those things. Are they
denying any exclusive jurisdiction or saying that

my whole statement of claim is outside that

exclusive jurisdiction. So, with respect, I do

think that the jurisdiction of the University

Visitor is, indeed, the essence of the whole

matter.

MASON CJ:  Mr Burke, as I read the judgments in the courts

below, I do not see any assertion of denial of

jurisdiction by reason of the existence of

jurisdiction in the University Visitor.	The
judgments of Mr Justice Boland and of

Mr Justice Johnston proceed on the footing that

your long and discursive statement of claim does

not disclose a cause of action and does not comply with the rules of the supreme court in relation to

the pleading of a cause of action. Now, they are

the two grounds taken in those two judgments.

MR BURKE:  Yes. They both, with respect, presuppose that

these matters are within the jurisdiction of the

supreme court and not within the exclusive

jurisdiction of the Visitor.

MASON CJ: They do not assert that they are within the

exclusive jurisdiction of the University Visitor.

MR BURKE:  No, they do not. They do not assert that but

do they not do that implicitly by the very fact

of - - -?

MASON CJ:  I do not understand them to do that either

expressly or impliedly.

MR BURKE:  By the very fact of striking out. I mean, I am

left - the fuller picture which, perhaps, you

already do appreciate:  I did initiate - seek an

order nisi against the University Visitor which was

rejected.

MASON CJ: Yes, I appreciate that but that is apart from

these proceedings.

MR BURKE:  And I then sought, last November, to join that

with this present action and once again I would

Burke(6) 16/11/90

submit that, in fact, that is properly a matter

because in fact at this stage there were no orders

drawn up at all in the case. Perhaps I am missing

something there.	So that basically we have, in
fact, a joint matter.	We have the order nisi and

we have the statement of claim. And the order nisi would then, as well as saying what the jurisdiction or division is, would also in an order in the

nature of mandamus to the Visitor to carry out his

part in it, as I see it.

MASON CJ: Yes. Well, I cannot add to what I have said to

you. It seems to me, on reading the judgments,

that there is no assertion, express or implied,

that the court lacks jurisdiction by reason of the

existence of jurisdiction in the University

Visitor. What the two judgments say is that you do

not plead a cause of action that is known to the

law and that the pleading does not conform with the

requirements of the rules.	Now, they plainly say
that.

MR BURKE:  But my pleading also - my statement of claim also

does raise this question in them explicitly of what

is the jurisdiction of the - as a preliminary point
of law, what is the jurisdiction of the - my
pleading is in that context, of a raising of the
issue of what is the exclusive jurisdiction of the

University Visitor.

MASON CJ:  You may seek to raise it but the judgments do not

depend on it.

MR BURKE:  I have difficulty with that, Your Honour. I have

to say it seems to me that - how can the judgments

ignore - if they have a supervisory jurisdiction -

how are they exercising the supervisory

jurisdiction if you totally ignore that. Why

should the supreme· court strike out a statement of

claim which is, in fact - - -?

MASON CJ: Courts do not have to deal with every question

that is raised in a pleading. All that a court

out to be essential to the disposition of the cause	needs to do is deal with those questions which turn
of action.

MR BURKE: It seems to me the fundamental question is,

"Where is the dividing line?" and that was the

whole substance of the statement of claim. Where

is the dividing line between the University Visitor

and the supreme court? I mean that was raised.

That was the fundamental issue put in question to

start with and I cannot see how that can be that

the supreme court can ignore that.

Burke(6)	16/11/90
MASON CJ:	Maybe you cannot but now we are concerned with

the decision of the Full Court which related to the decision of the master. Now, before the master you

sought leave to appeal from two decisions.

MR BURKE:	Yes, Your Honour.
MASON CJ:	One well out of time.
MR BURKE:	One well out of - certainly. Certainly, but those are actually in the alternative as you may be
aware. In fact, those applications seek to have
those two judgments set aside which is a prima facie case, surely, the Court would agree, that those applications were legitimate because they
were as in fact page 2 of that outline of argument
lists them.  You do not want me to go to them in
detail but there were a host of irregularities.
Neither of those judgments have been drawn up.
There was no final judgment. In fact, there is still no final judgment in the case as I understand
the nature of a striking out for want of
prosecution but that is not the point. The point
is at that stage there were no final judgments.
So, therefore, I am not automatically barred from -
I mean, the authorities say if there is some
elementary reason for doing it, those were
perfectly legitimate applications. I would submit
the irregularities that are listed there certainly
give a prima facie case for seeking those orders:
setting aside, going back to the original judges,
and setting aside those orders.
MASON CJ:	What do you say about the master's statement that there was a want of prosecution, a delay, that
warranted dismissal of the applications and
dismissal of the action?
MR BURKE:	I say that that is utterly absurd because from

the time that Justice Johnston delivered his

reasons, it was only a period of something like two

months or less than two months before I then took

out those two applications which were, (a) seeking

to set aside the two orders for very specified

reasons and, (b) only in the alternative, seeking -

well, I had already sought leave to appeal from

Justice Johnston, so it was only in the alternative

that I needed to rely on that, but my application

of 16 June subsumed, if that is the word, that

previous application for time - for leave to appeal

to Justice Johnston. Of course, I had not

previously sought leave to appeal from

Justice Boland and that did involve an implicit application for an extension of time if, in fact,

the primary application which was to set aside was

denied.

Burke(6) 10 16/11/90

I come back to the fact, I believe that those applications were both quite legitimate and

certainly did not deserve the treatment that they
got from Master Burley who dismissed them in very,

very general terms and which, as in other things,

left me not knowing what his reasons were. The

orders that I was specifically dealing with had not

been drawn up and there was no issue estoppal

arising out of any higher level order because, in

fact, there is still no final - arguably, no final

order in that case if an order for dismissal for

want of prosecution is as I understand it to be.

So, on those different bases and those

applications were reasonable and they do, in fact,

with respect, raise the question of how one should
deal with irregularities in relation to dealing
with court rules. There is the interesting

question of the mandatory directory business in

relation to those orders which have to be drawn up

under the Supreme Court Rules of South Australia.

A little complication there is that the Supreme

Court Rules in South Australia specifically allow

any party at any time to, in fact, to enter a thing

which I am not sure is generally the case. That

may slightly complicate the matter but I would

argue that none the less the responsibility was on

the opponents in the traditional way set out in

that case, Arcidiacono, from New South Wales.

If I could continue on that: in fact, one

thing about the reasons of Master Burley which, I

have to say - Master Burley does make thoroughly

clear in his reasons - is that in striking out my

action as he did for want of prosecution, if it is

true that the Queensland case Bruce Pie & Son,

which you have an extract of - you may have the

whole case there - which lays down specifically the

onus of proof must be on the defendant to show want

of prosecution, if that is true, and the prevailing

leading South Australian case Ulowski leaves that question open - if it is true that the Queensland case is right, well then, very, very clearly from

the reasons, I would submit, Master Burley

contradicts that and arguably raises, if that is an

important matter worthy of consideration, of

course, arguably raises that very strongly.

That is not one of the three I put forward as reasons for special leave but it is one I might add

to that. I raise doubt with it in the questions of

law. Those are three points that I have raised,

and not successfully with the first one I can see.

In two of them I would argue that the reasons given

to me by the master and then by the supreme court,

because it more or less endorsed what the master

had said - in two of those I would argue that there

Burke(6) 16/11/90

are not sufficient - inadequate reasons given and I

do not think one should have to appeal to find out

why a decision is the way it has been. It seems to
me that sometimes - anybody can make a mistake but

I am sure the Court would not suggest that

withholding reasons be used as a tool to punish a

party or advocate no matter if there is gross

incompetence rather than just a mistake. I presume

there are other means of dealing with that and it
would seem to me it would be ideal if both parties
in an action, if it looked like proper reasons were
going to be omitted, to sort of be aware of that

fact and draw that to the attention of the court.

Inadequately, in the first case, obviously, I

probably have covered the main areas.	I did not
deal with the aspects of the Visitorial

jurisdiction which I would have liked to have done,

but for the reason which you - do not see the

relevance of that. But those would be the four

main points: the jurisdiction, the question of the

irregularities in relation to court procedures, the

onus of proof in striking out for want of

prosecution, should it be on the defendant or

should it be on the plaintiff, in a case such as

that and the need for reasons which, of course, has

been dealt with recently in relation to its basis

and that aspect of natural justice that says that

justice should be seen to be done in New South

Wales.

Just to come back to the thing I mentioned at

the beginning. If, in fact, the University

Visitor's jurisdiction is relevant as I see it and

the basis of the authority in the House of Lords,

Thomas v Bradford, where it includes anything - it

does not exclude things covered by the common law

but it includes anything which relates to the

administration and application of university

internal by-laws, and not merely just their

interpretation, and not where the ordinary laws

already apply, then some of the - I am rambling a

bit there. The point is that some of the other

matters I referred to at the beginning would

arguably also come within the scope of the

University Visitor's jurisdiction, namely, the

complaints I have in that application of 20 October

against the various members of the University

staff.

MASON CJ: Yes. Is there anything else you want to add,

Mr Burke.

MR BURKE:  I think I have covered the areas that you wanted.

I would have liked to have gone into the nature of

that jurisdiction a bit more deeply - slightly more

deeply but - the aspects which you sort of cut me

Burke(6) 12 16/11/90

off at the beginning about - I would have liked to

have said a few more words about that.

MASON CJ: Yes, I follow that but it does not seem to be

relevant to the current application you are making.

MR BURKE:  In that case I have probably covered everything

that I can reasonably say.

MASON CJ: Very well, if that is so, the Court will take a

short adjournment to consider your submissions.

AT 4.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.10 PM:

MASON CJ: In support of his application for the grant of

special leave to appeal from the decision of the

Full Court of the Supreme Court of South Australia,

the applicant has argued four main points. The

first is that much and possibly all of his present
and proposed statement of claim is within the
exclusive jurisdiction of the University Visitor.

The answer to that point is that the jurisdiction of the University Visitor is totally irrelevant to

the matters alleged in the applicant's statement of

claim.

The second point argued was that the master's

purported basis for striking out the action

contains many errors of law and fact, in

particular, in the making of the master's

declaration that the applicant's applications of 16

June 1988 were not fit and proper for the

consideration of the court. We are not persuaded

that there was any error of principle on the part of the master or, for that matter, that there was

any error of fact on his part.

The third submission made by the applicant is that the master erred in holding that the applicant

was responsible for unreasonable delay. The

master's finding in that respect was a finding on a

question of fact but, in any event, we are not

persuaded that the finding was an erroneous finding

on the material before the master.

The fourth principal matter argued by the applicant was that the master and the Full Court on

appeal from the master, gave inadequate reasons for

their rulings adverse to the applicant. Having

Burke 13 16/11/90

read carefully the reasons of the master and the
reasons of the Full Court, we have come to the

conclusion that those reasons were perfectly
adequate and, as we have already indicated, they

contained no error of principle and no finding of

fact with which we would be disposed to disagree.

There were no other matters advanced by the applicant in argument which would justify the grant

of special leave to appeal. The application for

special leave is therefore refused.

AT 4.13 PM THE MATTER WAS ADJOURNED SINE DIE

Burke 14 16/11/90