Calin v The Greater Union Organisation Pty Limited

[1990] HCATrans 107

i~

~

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

Application for special leave

to appeal

MASON CJ
BRENNAN J

Calin

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 1990, AT 10.06 AM

Copyright in the High Court of Australia

SlT3/l/PLC 1 11/5/90

MR G.A. HARLE: May it please the Court, I am the solicitor noted

on the record as acting for the applicant. However,

my instructions have been withdrawn as and from

23 April 1990.

MR D.F. ROFE, QC:  If Your Honours please, I appear with my

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

to the application, the defendant in the proceedings.

(instructed by Malcolm Johns & Co)

MASON CJ: Yes, Mr Harle?

MR HARLE:  Your Honours, I would be seeking to be removed from

the record as acting for the applicant. As I mentioned

before, my instructions have been withdrawn although

the applicant is here in person, Your Honour.

MASON CJ: Yes. Yes, now do you wish to say something to the

Court?

MS CALIN:  Thank you very much, sir. In the first place, I

wish to thank each and everyone of you gentlemen

for giving me this honour and opportunity to speak

before you.

I have no representative as you imagine

due to the financial status we are in. Nobody

represents us and I do not speak, but God speaks

for me. So, I come here before you, gentlemen -
I come here with God and he shall put whatever he
shall put on my mind. I shall speak with my lips

and then you will judge according to the truth which

was hidden for seven years.	Now, you are the
High Court - - -

MASON CJ:  But we should say this to you: the rules of

this Court require that an application for special

leave be presented by counsel. It is not permissible

under the Rules of the Court for a litigant personally

to present the application for special leave. So,

your application can only continue to be heard and

determined by the Court if it is presented by a

barrister on your behalf.

MS CALIN:  Yes, sir, I thank you for informing me and I thank

you for telling me this.	However, we are poor
people.	We do not have money to buy solicitors or
barristers to pay them.	We do not have money for
ourselves.	We are not rich in money but we are

rich in faith and I am coming to you for you,

gentlemen, to accept the word of God. Right from me

God is speaking to you, sir.

MASON CJ:  But as I explained to you, we are bound by our

Rules of Court. We have, as it were, no authority

to deal with applications of this kind unless those

applications are presented in accordance with the

procedures that are prescribed.

SlT3/2/PLC	11/5/90
Calin
MS CALIN:	I thank you, sir.

MASON CJ: And the result is we cannot allow you to present

the application personally to us. We cannot allow

you to argue it to us. Now, one thing perhaps we

could do, although counsel for the respondent may

oppose this, is grant you a further adjournment

in order to enable you further to explore the

possibility of having the application presented on

your behalf through legal advisers.

MS CALIN:  Yes, sir. With your permission, if I may say

this:	we could not be able to afford to pay a
solicitor or a barrister.	We are poor people but

poor as we are, do the poor people, do they not

deserve to be heard and to be listened to the

truth just because we are poor? We are denied to

be listened to by you, the law, the justice; by

you, gentlemen, for only you can make justice now

after seven years. Just because we are poor we

are denied our right to be heard?

MASON CJ:	Now, have you made any application for legal aid?
MS CALIN:	No, sir. Well, I was told that legal aid would

not involve themselves in this.

MASON CJ:  But did you apply to the appropriate authorities

for legal aid?

MS CALIN:	My solicitor would be able to - - -
MR HARLE:	May I assist Your Honours? After - we came into
the matter a short time ago but I do understand

from the applicant's former solicitors that an

application was made for legal aid and that

application was rejected.

MS CALIN:  Gentlemen, all I have to say, whether you would

accept it, in God's name I implore you, at least

five minutes, that I may know in my heart and

my father as well because my mother she does not

understand, but we know that we have been honoured to appear before you, to show you the truth, to	illustrate the facts, to illustrate the negligence
which was denied - - -

MASON CJ: Now, I cannot allow you to do that. That is not

permissible as I have explained to you.

MS CALIN:	And many other facts, sir -
MASON CJ:	Now, can I say this to you.

MS CALIN: Please.

MASON CJ:  The members of the Court think that in the circumstances

you should make application to the Law Society of New

SlT3/3/PLC	3	11/5/90
Calin

South Wales and endeavour to ascertain whether the

Law Society would be prepared to assign a solicitor

to act for you in this matter and if need be to present
the application to the Court through counsel. Now,

that is the only way in which we presently see that

your application can be presented to the Court and
subject to anything that Mr Rofe may say, we would
have it in mind that the matter might stand adjourned

to enable you to pursue that possibility of presenting

your application.

MS CALIN:  I am thanking you, sir. Thank you for your

understanding, for your understanding the fact that

poor people are not really denied their rights. Not

only rich people can win as I was told by barrister

from the other side, the gentleman, with all due

respect.

MASON CJ: Yes, but we have to hear what Mr Rofe has to say.

Now, for all I know Mr Rofe may oppose this proposal

and if he does then we will have to consider what

his objections to it are.

MS CALIN:  Absolutely, sir, however, as I said before, although

we are poor, we still may be

MASON CJ:  I think you ought to sit down now and we can then

hear what Mr Rofe has to say. Yes, Mr Rofe?

MR ROFE: If Your Honours please. Your Honours will see this

application was conunenced in May 1989 following a

jury verdict.

MASON CJ:	Yes, we are familiar with the __ detail.
MR ROFE:	We understand the position the applicant is in but

we are anxious to have some time limits put upon the

situation. This is, I think, possibly the third time

it has been withdrawn or - it has been in the list

or was going to be in the list.On a number of other

occasions it has been withdrawn.

MASON CJ:  I think we can perfectly understand the position of

the respondent and what I had in mind was that the

matter might stand adjourned until the

special leave sittings in Sydney in August so that

the matter could be pursued in the meantime.

MR ROFE:	Yes. Well, Your Honour, we really see very little
alternative to that save and accept we would want to
be in a position perhaps to put on an application
for non-prosecution if we are notified within that -

MASON CJ: Well, that is a matter for you to determine.

MR ROFE:	Yes, but what I was suggesting Your Honours might
consider putting some time limit before the next
sittings, that we be notified what the position is

S1T3/4/PLC	4	11/5/90
Calin

so that we do have an opportunity to do that and

make that application returnable at the next

sittings. If we come to the next sittings to be

told thatthe application is refused by the Law Society,

then we are in a situation where we are today but

three months down the track. If the Court would be

minded to, perhaps, direct that we be given some

notice of what the situation is, say, within about

three weeks prior to the next sittings, it would

give us a chance to put on any application that might

be appropriate.

DEA!:--1E J:  Well, it could be that such an application, if it

becomes necessary, would be better dealt with by

a single Justice rather than on a leave day.

MR ROFE:	I appreciate that but what we did not want:	to
have August arive, Your Honours, and - - -
DEANE J:	I was not suggesting that, Mr Rofe.
MR ROFE:	We did not want to have August arrive and then

find that we would then need to make an application to a single Justice. If there was a time limit for notification prior to August, we could make the

application which would arrive more or less at
the August date of the next sittings. Subject to
that, and perhaps costs could be reserved, we would

have nothing more to say about it.

MASON CJ:  Now, Mr Rofe, what we presently have in mind is that

the matter be listed before a single Justice on

Friday, 20 July, 17 days before the next motion day

in August, August 6.

MR ROFE:	Yes.
MASON CJ:	And it should be listed then and the applicant would

then be expected to indicate whether the matter was

proceeding or not.

MR ROFE:	And do Your Honours contemplate that that direction or
order that Your Honour has made today be personally
served now on the Georghita. This young lady is not the - she is the daughter. Constantin is her
father.  The plaintiff, of course, is her
mother.

MASON CJ: Yes.

MR ROFE:	Do Your Honours contemplate that we would need to
have - - -

MASON CJ: Yes, the daughter is the only one who speaks English,

as I understand it.

MR ROFE:  She is the only one who speaks - well, we understand
who speaks English.

SlT3/5/PLC	5	11/5/90
Calin

MASON CJ: But, Mr Rofe, I do not think it is necessary for

any document to be served.

MR ROFE:  I am content if Your Honours are. I would not want

to be met on the question that no one has been

served.

MASON CJ:  No, we are assuming that what transpires today

will be communicated to the applicant and I think

that is a safe assumption and if that transpires
then we can expect, on 20 July, to know what the

future of the proceedings will be and that will

enable you to take such course as you may be

advised following that.

MR ROFE:	Yes, well, we are content with that, Your Honour.
If Your Honour would be good enough perhaps to make
that clear to Ms Galan that she, in effect, is to be the person to bring that home to the Georghita.

MASON CJ: Yes. Now, Ms Calin, you have heard the discussion

that has taken place between the bench and Mr Rofe.

The matter will be listed before a single Justice of the Court here in Sydney on Friday, 20 July and on

that date the applicant will be expected to inform
the Court whether or not the application is to

proceed and if it is to proceed, that means through

legal advisers to be presented by counsel.

MS CALIN:  I see. Under any circumstances it is not possible

for me - - -

MASON CJ:  But wait until you hear what I have to say. If it

is to proceed, it must proceed by counsel, not otherwise

and that means that you must have the benefit or the

applicant must have the benefit of legal advisers.

What we want to know on Friday, 20 July, is whether

the applicant has legal advisers and counsel who will

present the matter to the Court on 6 August and it

will be necessary for you to communicate very clearly

to the applicant in the proceedings what has been said

here in Court today and what we expect to take place.

Now, in the meantime, it is very important for you

to make application to the Law Society of New South
Wales with a view to the Law Society making available
to you the services of a solicitor who can consider

the matter and brief counsel to present the application.

Now, you must make that application without delay

because there is not a great deal of time.	You will
have approximately six weeks between now and
20 July.

MS CALIN:	I appreciate that, sir.
MASON CJ:	So, as I say to you, speed is the essence of what you

want to achieve.

SlT3/6/PLC 6 11/5/90

Calin
MS CALIN: Absolutely. With your permission, if I may ask:

the Law Society, they do require money?

MASON CJ:  You make application to them explaining the

financial position in which your parents are.

MS CALIN:	I see, sir.
MASON CJ:	And explain to them what has happened, that you
stated to the Court that you were unable to present
the application because your parents could not
afford legal advice, that you made application
for legal aid and that was refused.

MS CALIN:  Yes, sir. I am thanking you and, again, I ask

your indulgence to say this. In regard to what

Mr Rofe said about a tutor; a tutor it is, indeed,

my father, appointed.	My father was appointed
as tutor for -

MASON CJ: Yes, but I do not think we are concerned to know

that, Ms Calin.

MS CALIN:	I see.
MASON CJ:	We are not concerned to know that.  I have explained

to you all that I need say to you and the matter will

now stand adjourned to a single Justice on

Friday, 20 July.

MS CALIN:	I thank you, sir.
MASON CJ:	And the costs of today's proceedings will be reserved.

MR ROFE: If Your Honour pleases.

MR HARLE:  Might I take it, Your Honour, that my name has been .....

as ceasing to act for the applicant?

MASON CJ:  But I think you have to take appropriate proceedings

under the Rules, do you not, Mr Harle?

MR HARLE:  I understood from Mr McCluskey that it could be

done in Court before Your Honours. We were

previously disinstructed and a summons was prepared
before a Judge sitting in chambers but because of
the mention date coming up on 11 May, as I understand

the Rules, the order can be made by Your Honours in

Court.

MASON CJ:  Mr Harle, I think the Court is in a position to

make an order that you have ceased to act as solicitor

for the applicant.

MR HARLE:	Thank you, Your Honours.
MS CALIN:	I thank Your Honours, and - - -

SlT3/7/PLC	7	11/5/90
Calin

MASON CJ: There is no need to thank us, Ms Calin. The

matter stands adjourned until 20 July in the

circumstances that I have outlined.

MS CALIN:  Exactly as you have said, sir. I cannot thank

you. All I can say is thank God - - -

AT 10.27 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 20 JULY 1990

SlT3/8/PLC	8	11/5/90
Calin