Calin v The Greater Union Organisation Pty Limited

[1990] HCATrans 155

_.

-b,,~USTRALIA,1(.!---.,,,'»)'~~._-.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S57 of 1989

B e t w e e n

GEORGHITA CALIN by her Tutor

Constantin Calin)

Applicant

and

THE GREATER UNION ORGANISATION

PTY LIMITED

Respondent

Directions hearing

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Calin(2) 1 20/7/90

AT SYDNEY ON FRIDAY, 20 JULY 1990, AT 10.15 AM

Copyright in the High Court of Australia

MR P.R. GARLING: If it please the Court, I appear for the

applicant who is the respondent to the summons

before Your Honour this morning.	(instructed by
the Legal Aid Office)

MR D.F. ROFE, OC:  If Your Honour pleases, I appear with my

learned friend, MR B.C. LYNCH, for the respondent

in the special leave application, the applicant in

the summons this morning. (instructed by Malcolm

Johns & Co)

HIS HONOUR: Mr Garling.

MR GARLING:	Can I tell Your Honour what has happened since the matter was last before this Court?
HIS HONOUR:	Yes.
MR GARLING:	On the evening of 18 July 1990 a grant of legal

aid was made to fund the applicant in an

application for special leave to this Court.

Consequent upon that, Mr Richardson, solicitor, of

the Legal Aid Commission has filed a notice of

appearance. I have received a brief as has

Mr Jackson QC to appear and prosecute the

application for special leave, anticipating that

that will occur, subject to the motion of course,

on 6 August next.

It will be necessary, Your Honour, in the course of that prosecution for the applicant to

file a further affidavit setting out slightly more

clearly the grounds upon which the application is

to be made.

HIS HONOUR:	Does that mean that you consent to so much of the summons as seeks to strike out the affidavit?
MR GARLING:	No, Your Honour, I do not but it will be

necessary to file a further affidavit setting out

further grounds upon which the application is to be

made.

HIS HONOUR:	What about paragraph 7 of the affidavit?
MR GARLING:	That will be pursued, Your Honour, but in a

different - I wish to expand on that ground in

proper form, Your Honour.	I concede that as it
presently stands - -

HIS HONOUR:  It must go, must it not?

Calin(2) 2 20/7/90

MR GARLING:  - - - it must go but I do not concede that

that ground is not a ground that can be pursued if

in proper form.

HIS HONOUR:  Yes.

MR GARLING: So, to that extent, Your Honour, I would not

oppose the order referring to paragraph 7. As to

the balance of the affidavit, I say this: whilst

it is not in perfect form it can be cured.

HIS HONOUR: Well, perhaps you can be heard in answer to

Mr Rofe. Is there anything further you want

to put?

MR GARLING: There is nothing I wish further to say at this

stage, Your Honour.

HIS HONOUR:  Yes, Mr Rofe?

MR ROFE: Well, Your Honour, in the light of the facts that

my learned friend has advised, Your Honour, that

there is now representation and that it is

anticipated therefore the matter can proceed, we

cannot at this point press grounds 1 and 2 of the

summons. I might say we have not - and I am not

being critical - yet been served with any

appearance but I accept it is probably on its way.

HIS HONOUR:	Yes.
MR ROFE:	We would ask, therefore, that that part of the

summons, 1 and 2, perhaps be adjourned to link up

with the special leave application so that it is

available to us should there be a further change of

the situation.

Ground 3 was sought on the basis that the

affidavit does not comply, Your Honour, with -

HIS HONOUR: Order 69A rule 4.

MR ROFE:  Yes, and, indeed with the form. We submit we are

entitled to have that struck out, with leave, of

course - my learned friend indicates - for a

further affidavit in proper form to be filed as he

indicates will happen.	We do press, and I
understand it is not opposed, that paragraph	7

certainly be struck out and erased from the record.

We do seek an appropriate order for costs on the

basis, at least, Your Honour, that ground 7 - we

did give notice as best we could that we objected

to these matters.

Calin(2) 3 20/7/90

HIS HONOUR: Well, the matter has had a long history,

Mr Rofe.

MR ROFE:	Of inaction, Your Honour.
HIS HONOUR:	Of inaction and no objection was taken even as

late as 11 May to the terms of paragraph	7 or, for
that matter, to the terms of the affidavit.

MR ROFE:  May I indicate why that was not so? We came to

the 11 May special leave applications hearing,

having been advised by letter - I think it is one

of the annexed letters - that the then solicitors

had had their instructions withdrawn and that it

would be necessary for them to get some order to be

taken off the record. So, we approached that

hearing ready to proceed, if the matter was to

proceed on that date, but also knowing that the

then solicitors were seeking to be taken off the

record. Now, Your Honour will see - - -

HIS HONOUR:  I appreciate that, Mr Rofe, but the affidavit

was filed so long ago as 30 May 1989. An index was

settled; application books have been filed and

served. There has been quite significant

correspondence between the respective solicitors

and yet it was not until the summons of 29 June

that any challenge to paragraph 7 has been made

out. Is that right or not?

MR ROFE:  No, on 18 April we wrote a letter. I am

instructed, Your Honour, it became a matter - I am
instructed that my instructing solicitor attending

at the settling of the appeal papers, right at

early days, objected to paragraph 7. The

applicant then appearing in person - on 18 April

we - which is annexure H.	Does Your Honour have
legible copies of - - -

HIS HONOUR:	Yes, I have.
MR ROFE:	Your Honour will see there at the time when

Messrs McBride Harle & Co had assured us that the

matter would proceed and they were still in it, we

raised the objection with them then.	On 26 April
they wrote to us and said that they:

advise as of 23rd instructions for the

appellant had been withdrawn -

and they would have to attend and proposed to

attend at the Court on 11 May. Up to our letter of

18 April 1990 - as Your Honour will see, on

29 March we were seeking some assurance that the

Calin(2) 4 20/7/90

matter would proceed on the then date of

6 April 1990. Now, all these dates have been

missed, Your Honour, through no fault on ourselves

but -

HIS HONOUR:	I appreciate that.
MR ROFE:	- - - and through some uncertainty as to whether

or not the solicitor that did come on to the record

was going to remain on the record and, indeed, on

11 May that is the first thing that happened, they

announced, as we anticipated from their own letter,

that their instructions had been withdrawn and the

matter proceeded, as Your Honour will see from the

transcript of that hearing in which Miss Calin

addressed the Court and it was then that the

Chief Justice suggested that she should seek aid

from the Law Society or assistance from the Law

Society. What we wanted to preserve was a

situation where, if nothing further happened, if

the matter was going to remain as it was on that

date, that we would have an opportunity to put on

the application that the matter be struck out for

non-prosecution and that is why we sought - - -

(Continued on page 6)

Calin(2) 5 20/7/90

HIS HONOUR:	Does that appear in the transcript, Mr Rofe?
MR ROFE:	Yes, Your Honour, it does, the bottom of page 4 I

am suggesting - - -

HIS HONOUR:  Page 4 you said:

put on an application for non-prosecution -

There is nothing about paragraph 7.

MR ROFE:  No, I did not mean to suggest - Your Honour, if

there is to be non-prosecution, it did not matter

about paragraph 7. And indeed, Mr Justice Deane on

page 5 suggested it might be better dealt with by a

single Justice and hence it all worked out to being

fixed for this date so that the. applicant could

indicate what the position was from her or his

point of view, and we would have an opportunity to
prepare a situation where either there was going to
be an application to strike out a non-prosecution

or if the matter is to be prosecuted, as appears it
is going to be, that then we would object to the

affidavit in whole or alternately, certainly as to

paragraph 7.

HIS HONOUR:  I think I understand what the submission is,

Mr Rofe. Why should not the affidavit be struck

out, Mr Garling? It does not comply with the

rules?

MR GARLING:	The whole of the affidavit, Your Honour?
HIS HONOUR:	Yes. I mean it is an affidavit that is just

defective.

MR GARLING:  Your Honour, leave aside paragraph 7 for the

moment which I concede ought be struck out. The

balance of the affidavit, Your Honour, does not

strictly comply but it complies in part and by

being supplemented by a further affidavit,

Your Honour, the affidavit evidence in support of

the application will comply and to strike it out

would serve, with respect, no useful purpose
because it would lead to the repetition of a part

of that affidavit in the supplementary affidavit.

I mean, the affidavit does, Your Honour, at least

set out in part the facts giving rise to the claim,

the history of the claim which are matters that

would otherwise, in paragraphs 3, 4 and 5, be

included in any affidavit in support of an

application.

Calin(2) 6 20/7/90

HIS HONOUR:  That may be common practice to include that

sort of material in but what Order 69A rule 4

requires is to be exhibited to the affidavit the
judgments of the court below, the reasons for
judgment and the affidavit itself should set out

the facts on which the application is based, the

grounds by which it is sought to be challenged and

the specific questions of law. Well now, what do

you say, that paragraphs 1 to 6 comply with

paragraph 4(a)?

MR GARLING: Yes, Your Honour, that is so. Your Honour,

clearly a supplementary affidavit	is needed to make
sure the entirety of the evidence	complies with the
order.

HIS HONOUR:  You may be right in respect of that, but what

about costs?

MR GARLING:  Your Honour, with respect, costs ought be

reserved and follow the event of the special leave

application.

HIS HONOUR: That is asking a lot, is it not? Surely the

best you could ask for is that they be respondent's

costs in the special leave - - -

MR GARLING:  Your Honour, Mr Rofe is entitled, in the

ordinary course to have his costs following the

event of a strike out application, of course.

There is a difficulty - well, I clearly cannot have

any of the costs connected with that. But, with

respect, it is such a minor procedural matter in

the overall picture that the additional costs

occasioned by striking out paragraph 7 ought not be

made the subject of any separate order other than

those that would follow the ordinary course of

costs of the special leave application and, if

successful, the costs of the appeal.

HIS HONOUR: Well, I am not sure that you can just glide

over it in that way. After all the respondent has	been brought here today by reason of the delay and	the various steps or failure to take steps on the
part of the applicant and today's costs may or may
not be negligible, but it seems to me that the
respondent is entitled to some benefit in respect
of those costs.

MR GARLING:  Your Honour, unless I can glide over it in that

matter, there is nothing more that I can put to

Your Honour.

HIS HONOUR:  Thank you.

Calin(2) 7 20/7/90

HIS HONOUR: This is a summons dated 29 June 1990 seeking

inter alia an order that an application for special

leave be dismissed for want of prosecution, that

the affidavit of Christina Calin sworn on

30 May 1989 in support of the application be struck

out, that in the alternative that paragraph 7 of

that affidavit be struck out and that the applicant

in the special leave application pay the

respondent's costs of this application and summons.

The application for special leave is brought

against a judgment of the Court of Appeal of

New South Wales. The application was filed on

29 May 1989, and an affidavit purporting to comply

with the rules in support of that application was

filed on 30 May 1989. The index was settled as long

ago as 23 June 1989. Application books were

directed to be filed and served by 24 July last

year. In fact, the application books were not

served until 21 September, 1989.

The matter has been listed for hearing on a

number of occasions between October 1989 and

11 May 1990. On each of those occasions, the

matter did not proceed because of the failure of

the applicant to be ready to prosecute the action.

When the matter came before the Court on 11 May of

this year, the applicant's solicitor formally

announced that he no longer had instructions. The

matter was then directed to be heard by a Justice

of this Court to indicate what further steps would

be taken or needed to be taken in the action. It is

against this background that the summons seeking an

order for the dismissal of the special leave

application was brought.
This morning Mr Garling, who appears for the applicant in the special leave application, has

informed me that, on 18 July of this year, legal

aid was granted and that senior counsel, as well as himself, have been briefed to prosecute the special

leave application which is expected to come on for
hearing on 6 August.	In these circumstances Mr

Rofe QC, who appears for the respondent in the

special leave application and the applicant in the

summons, has informed me that he does not wish to

press paragraphs 1 and 2 of his summons which seeks

to have the special leave application dismissed but

he would seek an order that it stand over until

6 August 1990 in case the matter should not proceed

on that day. I propose to accede to Mr Rofe's

request in respect of that matter.

Calin(2) 20/7/90

However, Mr Rofe pressed an application that

the affidavit of Christina Calin, which was sworn

on 30 May 1989 in support of the application, be

struck out. There is no doubt that the affidavit

does not comply with the terms of Order 69A rule 4

of the High Court Rules in that it does not state

the grounds on which the judgment below is sought to be challenged, it does not state the specific questions of law, if any, which are raised by the

application, and it does not state the reasons why

special leave to appeal should be granted.

However, paragraphs 3 to 6 and part of

paragraph 2 of the affidavit do comply with the

provisions of Order 69A rule 4(l)(a). Paragraph 7

of the affidavit, however, states:

I also say that at Page 99 of the transcript

(Page 112 of the Court of Appeal, Appeal

Books) I and indirectly my family was

subjected to a racist attack by the Senior

Counsel for the Respondent.

Mr Garling concedes that paragraph 7 cannot stand

in that form. However, he has informed the Court

that the subject-matter of that paragraph is

intended to be made the subject of the application

for special leave. In the circumstances,

paragraph 7 must go. However, I decline to strike

out the balance of the affidavit, that is to say

paragraphs 1 to 6. As Mr Garling pointed out, if

they were struck out they would only be resubmitted

in the further affidavit which Mr Garling properly

concedes must be filed if the rules of this Court

are to be complied with.

That brings me to the question of costs.

There is no doubt that the respondent has been brought here by reason of the conduct of the

applicant and, in particular, by reason of what occurred when the matter was listed for hearing

before the Full Court on 11 May 1990.	The
respondent gave notice on 18 April 1990 that the

affidavit failed to comply with the rules, and it

seems to me that, in all the circumstances, the

respondent should have its costs.

Accordingly, the orders I would make are:

1. I direct that paragraph 7 of the affidavit of Christina Calin, sworn on 30 May 1990 - - -

MR ROFE:  1989.

Calin(2) 9 20/7/90

HIS HONOUR:	Your summons needs correction, Mr Garling.
-sworn on 30 May 1989 in support of the

application for special leave to appeal be struck

out.

I stand over to the hearing of the special

leave application paragraphs 1 and 2 of the

affidavit.

I order that the costs of today's proceedings

be paid by the applicant.

Is there anything further?

MR ROFE:  Yes, Your Honour. I believe there is a matter of

chambers. Would Your Honour certify for counsel.

HIS HONOUR:  Yes, I certify for counsel.

MR ROFE:  Thank Your Honour. Your Honour, there are perhaps

two other matters. One is we have been told of a

foreshadowed affidavit and we are aware that there

is two weeks between now and - secondly, we have

also been told the subject-matter or the allegation

in paragraph 7 or the subject-matter of that

paragraph is intended to be made in some form the

subject-matter of an application. That being so,

Your Honour, I would ask that Your Honour direct or

order that this matter be placed in the application

for special leave hearings on, I think it is

12 October, rather than 6 August. Quite obviously,

Your Honour, when we see the additional material it may or may not require, for instance, myself as

senior counsel to return the brief. Now, with

respect, Your Honour, we do not know when this

affidavit is coming on or-

HIS HONOUR:	I propose to make some directions about it.
MR ROFE:	But Your Honour, even so, it would only leave us a

very minimum time if there needs to be a change of

counsel. I understand the sittings after 6 August,

which is a Monday, are on 12 October in Sydney. In

view of the delay, no one is going to be

prejudiced.

HIS HONOUR:  Mr Garling, what do you say, first of all,

about time for filing an affidavit to comply with

the rules?

MR GARLING:  5pm next Wednesday, which I think would be the

25th.

Calin(2) 10 20/7/90

HIS HONOUR:  What about Mr Rafe's application that the

matter not be heard until the October sittings?

MR GARLING:  As to that, Your Honour, I could not oppose

that if it becomes necessary. May I say it is my

present view, Your Honour, that the ground of

appeal will be framed in this way - and I do not

wish to be bound in strict words by it - but to

raise the question of the duty of a trial judge to intervene to prevent questions, the subject-matter of which constitutes a breach of one of the

anti-discrimination Acts, that is to say a question

put which raises a question of race and hence,

perhaps, racial discrimination. I do not wish it

to be said that I would wish to mount any personal
attack on my learned friend in respect of his

improperly asking a question, that is to say to bring his personal conduct into question, but I

anticipate that the question will be framed on the

question of what is the duty of a trial judge in

the event that such a question is asked.

Now, if it is framed in that way, I do not

anticipate it will constitute any personal attack

on my learned friend and I would not wish to mount

any appeal which did so.

HIS HONOUR: 

Mr Rofe, is there any difficulty about leaving

the matter in the list but allowing you to take it
out if you- - -

MR ROFE:  No, that is so, Your Honour. I have no

difficulty - I do not want to find ourselves

opposed to that course - - -

MR GARLING:  I would ask that the matter remain in the list.

If my friend indicates within a short time after

receipt of the affidavit that the consequence of

the contents of the affidavit is that he is

personally embarrassed, Your Honour, of course the

matter must go. But if at all possible I would ask

that it stay in the list on 6 August, for obvious

reasons.

HIS HONOUR:  Then I will add to the orders I have made these

orders.

I direct that the applicant file and serve by

5pm on 25 July 1990 an affidavit which, together

with the affidavit of Christina Calin filed on

30 May 1989, complies with the provisions of

Order 69A rule 4.

Calin(2) 20/7/90

I note that Mr Garling agrees that if there is

matter in that affidavit which would embarrass

Mr Rofe in the conduct of his case such that he may be required to retire as counsel from the case,

that the applicant agrees to the matter going over

to the October list.

Mr Rofe, would you be in a position to give a

decision by the following Friday?

MR ROFE: Following Friday being-

HIS HONOUR:	It has got to be the 27th.
MR ROFE:	Oh yes, I think I would be in a position - I would

hope to be, yes.

HIS HONOUR:  Then the matter will proceed at the sittings of

6 August unless before 5pm on 27 July Mr Rofe

informs Mr Garling or Mr Jackson that by reason of

the material in the further affidavit filed he is

compelled to retire from the conduct of the case.

MR GARLING:  Would Your Honour perhaps grant liberty to

inform the Registrar of that.fact in the event that

it occurs?

HIS HONOUR:  Yes. I grant liberty to inform the

Registrar.Is there anything further?

MR ROFE:	No, Your Honour.
MR GARLING:	No, Your Honour.

AT 10.46 AM THE MATTER WAS ADJOURNED SINE DIE

12

Calin(2) 20/7/90