Ex parte Halliday; Halliday v Sacs Group Pty Ltd

[1992] HCATrans 148

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M43 of 1991
In the matter of an Application
by PETER CAMERON PAUL HALLIDAY

Office of the Registry

Melbourne No M58 of 1991

B e t w e e n -

PETER CAMERON PAUL HALLIDAY

Applicant

and

SACS GROUP PTY LTD

Respondent

Application for special leave

to appeal

Halliday 1 8/5/92

MASON CJ
BRENNAN J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 MAY 1992, AT 12.13 PM

Copyright in the High Court of Australia

MR P.C.P. HALLIDAY:  Your Honours, may I seek your leave to

have my brother attend at the bar table?

MASON CJ:  Yes. Mr Halliday, you are aware, are you not,

that an application for special leave to appeal is

required by the rules to be presented by counsel

except in exceptional circumstances.

MR HALLIDAY:  Your Honour, I am aware of the rule and I seek

to, in my first submission to you, to raise with

you that, indeed, the application M43 before this

Court raises the very question as to whether the

law in fact is that a person has a right and that

that right in law would, indeed, overrule that

particular rule.

MASON CJ:  But that just cannot be so. The rule deals with

the procedure to be applied in this Court and
therefore whatever the common law may be, even

assuming it were as you say it is, the rule

overrides it.

MR HALLIDAY:  Your Honour, I am aware of the law and the

rule, and if I may, in a second submission to

Your Honour on that point in seeking your leave to

proceed, take you to the - cite that I have
prepared for you from Mr Justice Brennan in the

Lieschke case which I believe goes to the point of

my seeking to be heard in this particular matter.

May I hand to the Court that submission.

Your Honours, I have prepared in the blue

folder that is before you a typed submission and it

is headed, "1 M58 Submission". If I might take you

to, in that document, page 6 - and I have provided

the particular case to Your Honours. I believe

that the cite at page 459 by Mr Justice Brennan,

which says:

The application of the principles of natural

justice does not depend on whether parents and

guardians are to be described as parties.

And the second cite, at page 463:

Nor is the interest of the parents in such

proceedings merely indirect or derivative in

its nature. To the contrary such proceedings

directly concern and place in jeopardy the

ordinary rights and authority of parents as

the natural guardians of an infant child.

If I take those two cites, Your Honours, and

apply that in the particular case here, we have, in

my submission, an appellant whose rights are very

directly involved and I believe, therefore, the

Halliday 2 8/5/92

evidence before you of the injustices which this
appellant says he has suffered should be impressed

upon Your Honours to give the appellant in person

leave to be heard in this particular proceeding.

And those are my submissions on that question,

Your Honour.

MASON CJ: Yes.

McHUGH J:  You have got to show that there are exceptional circumstances. Now, what is exceptional about your

case having regard to other cases of litigants in

person?

MR HALLIDAY:	Your Honour, this is as to the question of Peter Halliday being given leave to address the
Court in person, as distinct from through a legal
representative?
McHUGH J: No.	Order 69A rule 11 says that:

Save with the leave of the Court, which may be

given in exceptional circumstances, an

application for leave or special leave to

appeal shall be made to a Full Court by a

person entitled to practise in any federal

court as a barrister or solicitor or as both.

MR HALLIDAY:  Yes, Your Honour. In response to that, if I

may take you to the affidavit which is in the

application book and to some of the material in

that which I believe addresses the exceptional

circumstances that Your Honours may consider in

this case. There, in that particular affidavit, it

is sworn that the person seeking to address the

Court directly has experience in the conduct - this

is the affidavit in support of the special leave

application, paragraph 1. This particular person,

Your Honours, has had experience in the conduct of

litigation for:

companies either directly or through

solicitors -

has -

appeared for and represented -

himself -

in proceedings in the Magistrates, the County

and the Supreme Courts of Victoria on a number

of occasions since 1972 and ..... appeared for

and represented -

himself in two applications before the Full Court.

And there is further material there, Your Honour,

Halliday 3 8/5/92

which, in my summary - it is page 64 in the

application book - in summary, I believe gives to

this Court material to show that, firstly, the

person before you has experience in coming to grips with the particular issues which are required to be addressed before the Court today, that is, what

issues of law are significant and of such

significance that this Court ought to consider the

special leave application favourably.

BRENNAN J:	Can we take it that you are responsible for the material as it is assembled in these books?
MR HALLIDAY:	Yes, Your Honour, that is correct.

BRENNAN J: Well, you will understand, Mr Halliday, that

nothing that I might say is intended to be in any

way a personal reflection upon you but those books

do not really raise any question of special leave

at all, as I see them, and obviously you are

concerned because you regard the decisions below as

having been the source of some injustice to you,

and that is the very reason why we insist on having

counsel so that the can filter out those senses of

injustice and present legal arguments here. Those

books do not indicate that that has happened in

this case.

MR HALLIDAY:  Thank you, Your Honour, for that observation.

If I may take you to the places in the appl'ication

book where, I believe, in my submission, the

particular issues of law are raised. Your Honour,

if I may take you in the affidavit why the

particular questions of law that I believe are

raised are of significance. I have said there,

Your Honours, at paragraph 7 in the affidavit in

support, I believe this is a question of law.

McHUGH J: Are you dealing with M43 or M58, Mr Halliday?

MR HALLIDAY:  M58 in the application book where I have

addressed the questions of law which I believe are

significant. They start at page 86 of the

application book. In my respectful submission, the

first question there is, indeed, a question of law.

It is a question of law which, I submit, has not

been settled in this country and it is of such
importance that if it is not considered then people

dealt with by the lower courts would forevermore, if the decision of the Full Court in this case is said to be, indeed, a proper reflection of the

law - - -

McHUGH J: But, you see, 7(a) throws up the problem which

demonstrates the difficulty of having litigants in

person. What orders were made by the judge from

Halliday 4 8/5/92

which you seek to appeal? Having looked at the

materials, I cannot see any orders.

MR HALLIDAY:  Your Honour, the first order that I would

submit there is evidence before you of is in

respect of the affidavit of Michelle Dalton, and if

I may take you to that affidavit and the exhibit which shows at page 535, heading with the word

"Ruling", in my submission, on any interpretation,

even if it was headed the word, "Ruling",

"Decision", however it is described, that is an

order of a court. It is an order of a court in the

most certain terms. It is an order under which a

person is dealt with specifically. It is a final

order. And that is one example, in my submission,

the evidence is before you, if I may take you to

that page 535 of the exhibit to Michelle Dalton's

affidavit.

Your Honours, that is exhibit 2 of the

affidavit of Michelle Dalton. Your Honour, in my

submission, the wording there used, which comes at

the end of what could only be described as a

summary hearing without notice to an applicant, so
in breach of, in my submission, all rules and all

law in regard to how trials are to be conducted, in

my submission, what is there for you at page 535 is

an order of a court.

McHUGH J: Well, but, you see, it just shows how confused

the whole matter is because what M58 is concerned

with is your application that you were entitled to

appear by reason of the assignment. So, you seem

to be, in some way, seeking to appeal in respect of

the company's issue. Now, you are introducing a

ruling that was made against you personally in the

court.

MR HALLIDAY: Yes, Your Honour, and that is precisely the

basis on which it is said the supreme court erred

in law, that is - - -

McHUGH J:	Why did you need an assignment from the company?
MR HALLIDAY:	Your Honour, in respect of that particular

ground of appeal, in a notice of appeal, not only

was no assignment required, no assignment was

relied upon, and that is precisely the point of law

here, that is, the appellant before the Supreme the County Court Act and the supreme court erred in

striking out a notice of appeal on just that one

ground alone - - -

BRENNAN J: What ground?

Halliday	8/5/92
MR HALLIDAY:	The ground that an order was made against a

person in the county court and that order gave rise

to that person lodging a notice of appeal in

respect of that order alone.	No assignment
required.

BRENNAN J:	So stated, Mr Halliday, if I might say so, the proposition is in law meaningless and for my part,
because it is, it seems to me that we are likely to
be engaged here in discussion about matters which
have no real legal content, not through any fault
of yours but simply because the problem is not in a
form which allows this Court to deal with it.

MR HALLIDAY:  I understand, Your Honour. I believe that, in

surnrnary, there are two limbs to the appeal before

you. One limb is, indeed, relying upon the

assignment; that the question of law raised there

is what are the rights and what are the

limitations, if any, of an assignee in pursuing a

proceeding which is already before a court, and the

questions of law which I have raised, which I

believe are proper questions of law, are that if an
assignment has been properly and validly entered
into by the parties, that the assignee from the

moment of that assignment has the right of

conducting litigation, whether litigation has

commenced is in the proceeding; whether a first

judgment has been given or whether it is in the

process of appeal, and if that is not the case -

and, in my submission, the Trendtex case which I

have cited to Your Honours in my application and my

submissions shows that it is the case that the

assignee has the rights that I assert are the law

as it currently stands. Then the assignee in this

case had the right to institute the notice of

appeal and the appeal in the supreme court. That

is the first limb of the question of law which I

invite this Court to decide - is one worthy of

decision.

If I might take you to one side of my

submission, Your Honour, as to - - -
McHUGH J: You have got to show us that there are some

exceptional circumstances why you should be given
leave to argue these matters. Speaking for myself

at the moment, I have not heard anything that would

make out a case of exceptional circumstances.

MR HALLIDAY:  Your Honour, the material before you in that

regard, in addition to what I have already referred

to, is that the appellant here is not able to

instruct, not able to engage lawyers, and that is

not something which is uncommon in this country at

the present time - not able to get legal aid.

Certainly, I should leave no question in the mind

Halliday 6 8/5/92

of the Court that if I was able to instruct counsel

to represent me here I would do so. The reason

that I cannot is the same as applies to just so
many and that is neither do I have the funds nor do

I have, in accordance with the current rules in respect of legal aid, nor do I qualify.

Now, in those circumstances, Your Honour, the only way that I can possibly bring this matter

before you is if I bring it myself. There is no

other representative that I can call upon to be

here representing me. My submission is that there

could be no greater circumstances that one could

categorize as special other than there is no

alternative. Those are my submissions on the

question of having leave and having the Court find

that I may make these submissions to the Court.

Your Honour, may I add one further ground -

submission in that regard?

MASON CJ: Yes.

MR HALLIDAY:  Your Honour earlier today said to the Court

that - in regard to the commercial case that was

raised with you earlier in regard to books and
records - there is something to be considered as to

how Australia would seem in the eyes of the rest of

the world in regard to that particular case you

were considering. In my submission, while

Australia is in the United Nations and declaring

that it supports the United Nations Declaration on

Human Rights which has a number of sections in it I

wish to refer to in M43, while it is doing that,

while Australia is saying that - and undertaking as

a nation before the eyes of the world, as a State,

it will undertake to provide, in law, in Australia,

all of the rights that it says the rest of the

world should obey, should uphold, it would be, in

the eyes of the world, in my submission,

inappropriate for the highest Court in this country

to, on any basis, deny an applicant in these

circumstances a right to be heard while, at the

same time, champing the cause in the United Nations

that it wishes to uphold all of those articles.

And that is a final submission on seeking to be

heard in this particular matter, Your Honour.

MASON CJ: Yes. Thank you, Mr Halliday.

This is an application for special leave to

appeal in which the applicant seeks to present the

application in person. Rule 11 of Order 69A of the

High Court Rules provides:

Save with the leave of the Court, which may be

given in exceptional circumstances, an

Halliday 8/5/92

application for leave or special leave to

appeal shall be made to a Full Court by a

person entitled to practise in any federal

court as a barrister or solicitor or as both.

In support of an application for leave based

on the contention that this is a case giving rise

to exceptional circumstances, the applicant relies,

amongst other things, on his statement that he is

unable to procure legal assistance, that he does

not have the funds with which to obtain legal

representation and that he has no entitlement to

legal aid.

We take account of those matters but, having

regard to the nature of the arguments presented by

the applicant thus far, the form of the materials

contained in application books Nos M43 and M58 and
the supposed issues purportedly identified in those
books, this is plainly not a case of exceptional
circumstances in which leave should be granted to

the applicant to present his application for

special leave in person.

MR B.A. KEON-COHEN: If the Court pleases, may I first

announce my appearance. (instructed by Minter

Ellison)

MASON CJ: Yes, we overlooked obtaining your appearance

earlier.

MR KEON-COHEN:  May I secondly invite the Court to make an

order for costs against the applicant in person

and, further, in order to clearly terminate these

proceedings which, in my respectful submission,

have gone on far too long already, make an order

rejecting the application for special leave?

MASON CJ: Yes. That would be the next step. But I have to

offer Mr Halliday the opportunity of presenting any

you leave to present your application in person, argument, in the circumstances, why, having refused the application should not now be refused?

MR HALLIDAY:	Your Honour, I submit to you - resubmit that the significance of Australia adopting in
legislation in this country the United Nation's
Charter - - -

MASON CJ: Yes, but I follow all that, Mr Halliday. We have

reached the point where we have ruled that you are not entitled to present your application in person

and that if the application is to proceed it has to

proceed by means of counsel or solicitor.

Now, the normal consequence of refusing you

leave is that the application must be refused.

Halliday 8/5/92

MR HALLIDAY:  Yes, Your Honour. I was going to add that the

Human Rights Commission said that they would not be

seeking to intervene in these proceedings on the

basis that the human rights issues would be raised.

Now, given that no longer could they be raised

should the matter be terminated here once and for

all, it would seem to me proper to raise with

Your Honours that the opportunity should now be

given to them and the proceedings not terminated

finally until they - now that they know that, the

human rights issues can no longer be pursued should

such an order be made, that they have the

opportunity now to intervene. Up until now, their

policy is, if issues are going to be raised, not to

intervene.

MASON CJ:  I take it, what you are doing is applying for an

adjournment but for that purpose only?

MR HALLIDAY:	For that purpose only, Your Honours, in case the Human Rights Commission wishes now to
intervene, now knowing the circumstances.

McHUGH J: But what right have they got to intervene, on a

special leave application?

MR HALLIDAY:  Your Honour, that would be a matter for them. The basis on which they put it to me in -

McHUGH J: No, it is a matter for us, as well.

MR HALLIDAY:  I am sorry, Your Honour. The basis on which

they put it to me, as I understand it, is that the

material raises questions of human rights and

therefore that gives them an obligation to consider

whether they should make an application to

intervene and that if they did so - I cannot speak
for them, but I would believe that they would be

seeking to intervene on the basis that issues of

human rights are raised and that they ought to be

heard. But that is, I would believe, the basis on

do so.

I could undertake to Your Honours to, of

which they would, if they sought to do so, indeed,

course, communicate the events of today to them

expeditiously and I am sure within the week they

would be in a position - I would give the material

to them that they have not had so far and I am sure

they would be able to indicate promptly whether

they wished to, indeed, seek to intervene.

MASON CJ: The application for an adjournment is refused,

and it follows that the application for special

leave to appeal must be dismissed. That order, of

course, will apply in both matters because the

issues that arise in terms of the applicant's

Halliday 9 8/5/92

application for leave to appeal arise in both

matters. And I take it, Mr Halliday, that you are

content for us to treat the reasons you have put to

us already as reasons which go to the second case

as well?

MR HALLIDAY:  I have raised the matters with you,

Your Honour, and they are in the material.	May I
just mention one thing in regard to costs?

MASON CJ: Yes.

MR HALLIDAY:  In regard to that, Your Honour: in that the

basis upon which you have decided as you have was

that the rule in regard to being able to conduct

the proceedings has not been followed and therefore

leave had to be obtained, in my submission, because

that was information on the file and known to the

respondent, there was no need for the respondent to

be here; that the outcome of these proceedings in

respect of that rule was known to the respondent

and I believe that should be taken into account in

deciding costs.

MASON CJ: The order of the Court is that the application

for special leave to appeal in each case is refused

and in each case it is refused with costs.	The
Court will now adjourn sine die.

AT 12.39 PM THE MATTER WAS ADJOURNED SINE DIE

Halliday 10 8/5/92