Ferreira v Zebra Stoneworks Ltd

[2003] HCATrans 320

[2003] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2003

B e t w e e n -

MANUEL FERREIRA

Applicant

and

ZEBRA STONEWORKS LIMITED

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO CANBERRA

ON THURSDAY, 21 AUGUST 2003, AT 3.16 PM

Copyright in the High Court of Australia

MR M. FERREIRA appeared in person.

MR J.E. MACONACHIE, QC:   Your Honours, I appear for the respondent, Zebra Stoneworks Limited, with MR G.R. WAUGH.  (instructed by Timothy J. Doubleday)

KIRBY J:   Yes, Mr Ferreira.  You come to the central podium please and you can present your argument now.  You understand that you have 20 minutes?

MR FERREIRA:   Your Honour, before I present my argument, I should make a point.  The respondent is not allowed to be taken step in the proceedings because they failed to make an appearance.

KIRBY J:   I am sorry, I do not understand.  They made what?

MR FERREIRA:   They do not file the valid appearance.  If the respondent do not make their appearance in accordance with the Order 69A rule 5, they have not the right to make steps in the proceedings.

KIRBY J:   Yes, I think this is similar to a complaint that you made in the Court of Appeal concerning the proceedings before the trial judge, but we are here today ‑ ‑ ‑

MR FERREIRA:   No, that is different, your Honour, because they for that want to make this – file the…..2003, they ask to the Court, the Registrar…..copy of this notice and Order 11 rule 26(2), what is different matter.  They file appearance on different matter.

KIRBY J:   Yes, Mr Ferreira, you are losing time in your ‑ ‑ ‑

MR FERREIRA:   Order 11 rule 26(2) is dealing with recovery of the land, not with personal injuries matter.

KIRBY J:   Yes, you are losing time in your application.  I think you should ‑ ‑ ‑

MR FERREIRA:   I know I losing time, your Honour.  That is not only thing I want to put to your Honour.  I have a letter for the Registrar who advised my hearing is in Sydney in Court 19A…..by video link.  I am unable to take that…..by video link.  If they advise this go up in Canberra – I have not been able to travel to Canberra to address myself personal to your Honours.

KIRBY J:   Yes, I think you should proceed with the substantive argument that you have and if you can indicate that any prejudice has been suffered by you by what you say is a non-compliance with the Rules, then we will rule on it, but, otherwise, you are not yet in this Court.  You are seeking to get in the Court.  You have to establish that you have a proper case for special leave and you are losing time in doing that.  So I think you should concentrate on your argument and you can assume that we have read ‑ ‑ ‑

MR FERREIRA:   That should be, your Honour, but before I starting my argument, I should state again is that they do not make the appearance – file the appearance under the Rules.  If your Honour find they are able to stand today, make the step in the proceedings, you tell me right now.

KIRBY J:   Is your complaint that their written submissions do not answer your submissions?  Is that what you are complaining about?

MR FERREIRA:   No, my complaint is you can see in the way with the applicant’s authorities, legislation and other matters, and No 16 what is said other material ‑ ‑ ‑

KIRBY J:   What page are you referring to?

MR FERREIRA:   I refer part 16 in the binder with the applicant’s authorities.

KIRBY J:   Yes.

MR FERREIRA:   You see the appearance that this respondent made is the wrong one, is not valid one.

KIRBY J:   Is your complaint that the number that has been put on the respondent’s document is the wrong number?  Is that the complaint?  It seems ‑ ‑ ‑

MR FERREIRA:   The complaint is they ask this notice of the appearance to be under the Order 11 rule 26(2).

KIRBY J:   Yes.

MR FERREIRA:   That Order 11 rule 26(2) is talk about:

Where a person so limits his defence, he shall describe that part of the property to which he limits his defence –

that is about recovery of the land.  They are in the wrong matter, your Honour.

KIRBY J:   What has this got to do – you are outside this Court.  You are seeking to get in the Court on an application for special leave to appeal against an order relating to your damages and you are raising a matter concerning land.

MR FERREIRA:   Yes, that is right, your Honour.

KIRBY J:   It seems to have nothing to do with the case, Mr Ferreira.  You should ‑ ‑ ‑

MR FERREIRA:   Yes, but the respondent is come to step in the proceedings on different matter.

KIRBY J:   Yes.  I think you should ‑ ‑ ‑

MR FERREIRA:   They are not to come because they fail to make the appearance under Order 69A rule 5.

KIRBY J:   Yes, you just proceed with your submissions in the application for special leave, please, because you ‑ ‑ ‑

MR FERREIRA:   I am unable, your Honour, because I am unable to proceed because if the Court was to rule these gentlemen are to proceed – step in the proceedings right today, I finish my argument, your Honour, because the Rules should be followed.  If the Rules are not to be followed ‑ ‑ ‑

KIRBY J:   Mr Ferreira, that is what you have ‑ ‑ ‑

MR FERREIRA:   ‑ ‑ ‑ is no meaning to argue against someone, against the Court here right now because the Court is skipping the Rules.

KIRBY J:   Mr Ferreira, this is a point that you raised in the Court of Appeal.  You seem to have a great ‑ ‑ ‑

MR FERREIRA:   No, this point I raise right now.  I raise ‑ ‑ ‑

KIRBY J:   Look, will you keep quiet for a moment and listen to me.

MR FERREIRA:   This Order 11 rule 26(2) is High Court Rules. 

KIRBY J:   If you do not want to listen ‑ ‑ ‑

MR FERREIRA:   Is not Court of Appeal Rules.  These are High Court Rules.

KIRBY J:   Yes, you seem to have a great – very well.  Have you finished your argument?

MR FERREIRA:   I am not finished my argument.  I just waiting for you, if the respondent has the right to step in the proceedings…..if they have the right to step in the proceedings.

KIRBY J:   You just proceed on the assumption that they have and that they will be heard if necessary.  You are losing time, Mr Ferreira.

MR FERREIRA:   I know I am losing time, but I still no hear from you if they have the right to step in the proceedings because this is very important to me, that point, before I keep going.

KIRBY J:   Yes, they are – you can assume that they are before the Court, that they have put their written submissions before the Court and that they have been read by the Judges.  So you proceed with your argument please.  I know that this is very difficult for you appearing for yourself, but you are losing time.

MR FERREIRA:   Yes, your Honour, is very difficult that way I talk by video link.  I talk to the Registrar if he can adjourn this hearing, I can talk to the Judge personal myself instead by video link because this is a big burden for me.  I am unable to proceed in that way.  But they failed to inform in time to try get to Canberra to talk to you personally.

KIRBY J:   You do not get to talk to us personally.  You get to talk to us in your submissions in the Court, that is the way of the system.

MR FERREIRA:   Yes, but I am unable to talk by video link because I am incapable to do that.

KIRBY J:   Very well.  Do you wish to say anything more that was not in your written submissions which we have read?

MR FERREIRA:   Yes, why may I still talk to the Court if your Honours are unable to tell me under the Rules, Order 11 rule 26(2), they make that, why proposed to kill the time I have arguing that point.  They should not step in the proceedings because if they do not make a valid appearance under the law, they should not step in.

KIRBY J:   Just sit down for a moment and I will ask Mr Maconachie to say what he wants to say about this point which you gave no notice of and which is being raised without proper warning to the Court.  Just sit down for a moment.

MR FERREIRA:   Thank you, your Honour.

KIRBY J:   Mr Maconachie, what is your understanding of this point concerning Order 11 rule 26?  What is the relevance of it to the application?

MR MACONACHIE:   I regret to say that I am unable to enlighten your Honours to any great extent.  However, at page 73 of the application book, at about line 35, when dealing with the question of costs, your Honours will there see reference to Order 11 rule 26 and Order 69A rule 5(1) and (2), the significance of which, I must confess, your Honours, I did not understand until I heard what Mr Ferreira has said today.  I have not had a chance to ‑ ‑ ‑

KIRBY J:   Yes, what is your understanding of the point that he has raised today? 

MR MACONACHIE:   I understand him to be saying that there is some defect or deficiency in form in the appearance that we have filed ‑ ‑ ‑

HAYNE J:   Well, there is, is there not, Mr Maconachie? 

MR MACONACHIE:   I am sorry, your Honour. 

HAYNE J:   There is a deficiency in your form of notice of appearance, is there not?  What is the reference ‑ ‑ ‑

MR MACONACHIE:   I am not in a position to be able to assist your Honour, I regret to say.  I did not understand ‑ ‑ ‑

HAYNE J:   Your notice of appearance – just a moment, Mr Maconachie.  Your notice of appearance says, amongst other things: 

The Registrar is requested to deal with copies of this Notice under O.11, r.26(2) –

which seems to have nothing whatever to do with entering an appearance in a special leave application. 

MR MACONACHIE:   That may well be so, your Honour, and I apologise for having overlooked the point.  Mr Ferreira did bring it to attention at page 73; the significance of it escaped me.  I would seek leave to file an appropriate appearance in proper form within 24 hours, your Honour. 

KIRBY J:   Yes.  Well, it seems to be, subject to anything Mr Ferreira says, a complete storm in a teacup, because it is rather similar to the complaint

that Mr Ferreira made that was dealt with in the Court of Appeal by Justice Hodgson at page 41, concerning alleged breaches of the Rules there.  Mr Ferreira seems to attach a great deal of importance to the form of the Rules, rather than dealing with the substance of the matter, and we have not had a single word about the substance of his special leave application yet.  Anyway ‑ ‑ ‑

MR MACONACHIE:   Indeed, your Honour, and in order to try to resolve the matter so that Mr Ferreira can concentrate on his argument, I would seek the indulgence of the Court to file an appropriate appearance, in proper form, within 24 hours. 

KIRBY J:   Yes, very well.  We will hear what Mr Ferreira has to say about that.  Now, Mr Ferreira, what do you say in relation to the application of Mr Maconachie on behalf of the respondent to file a notice that makes no reference to Order 11 rule 26 and is in proper form?  What has this got to do with the substance of your application?  It seems to be completely irrelevant. 

MR FERREIRA:   This can do everything, your Honour, because under the Rules they said no steps should be taken if they do not make a valid appearance.  They are here today to make their argument without making a real valid appearance in the proceedings.

KIRBY J:   It seems a complete irrelevancy.  It has nothing to do with the substance of the application.  It may be different in some countries, but in this country we look at the substance of the matter, and the substance of the matter is that this appears to be some very minor slip.  You seem to think that the Rules are rigid and will put a party out of Court simply because they make a reference to the wrong rule.  That is not the way it works.  It has really nothing to do with the case. 

MR FERREIRA:   Your Honour, all right.  Your Honour, these are the people who are the masters in skipping the rules.  They skip all the rules, all the way from the Compensation Court until now ‑ ‑ ‑

KIRBY J:   It does not matter.  It has nothing to do with the merits of your application, and you have lost time. 

MR FERREIRA:   I know I have lost time, but it is not my fault I lost time.  If they got within 24 hours to file a valid appearance, then the proceedings should take place after they have filed their appearance.  The proceedings can go before they take the steps in.  If they file their appearance in 24 hours, that proceeding should be adjourned to another time, so that appearances can be valid.

KIRBY J:   It is a complete irrelevancy. 

MR FERREIRA:   That is my submission to the Court. 

KIRBY J:   You can assume that that submission has been considered and will be dealt with.  Now, press on with the rest of your argument.  You are losing time. 

MR FERREIRA:   Your Honour, if you said you were going to accept my submissions, they do not – to file their appearance in 24 hours, after they file their appearance, the proceedings can take place after that, but before, why would not take proceedings, when they do not make any appearance at all? 

KIRBY J:   Because it is simply correcting a completely irrelevant technical mistake.  It has no bearing on the substance of your application for special leave to get into this Court. 

MR FERREIRA:   That is no technical mistake.  This is a huge mistake, because they are in different class in different matters, not in the matter I am talking about.

KIRBY J:   It is up to you whether you wish to address the Court on the substance of your matter, or on this side issue, and if you do not, well, we will have to deal with it without your assistance. 

MR FERREIRA:   Your Honour, I do not know what they can do, because the people are here today to address the Court they are not entitled to do.  If the Court is going to rule that against me, you rule against the Rules, against the law, I do not know what they can do.  Why…..my oral argument if the Court is not up to the Rules? 

KIRBY J:   The problem is you are not concentrating on important matters.  You have become so fixed with this minor, irrelevant, trivial matter ‑ ‑ ‑

MR FERREIRA:   Because that is very important ‑ ‑ ‑

KIRBY J:   It is completely trivial and you are just wasting your time and our time. 

MR FERREIRA:   That is another failing in the rule is that the rule they fail again, I can tell you, is Order 69A rule 10(10).  I have a letter for these people with about 20 August 2003, is from yesterday.  The rule said: 

If, on the hearing of an application, a party intends to refer to a document which is not included in the application book, that party

shall give notice to each other party not less than 3 working days before the date fixed for the hearing.

They again failed.  They give one day notice.

KIRBY J:   Yes, press on.

MR FERREIRA:   Your Honour, I have nothing to give any more because if the people still stand with no appearance in the proceedings, I am unable to go because this is not to me, so I finish my part.

KIRBY J:   Thank you.  The Court does not need your assistance further, Mr Maconachie.

A preliminary objection to a formal document

When this application for special leave to appeal was called, the applicant, Mr Ferreira, raised an objection concerning the notice of appearance filed on behalf of the respondent.  He drew attention to the fact that, in its notice of appearance, the respondent asked the Registrar to deal with copies of the notice under Order 11 rule 26(2) of the High Court Rules.  That rule deals with the recovery of land limiting a defence.  The slightest attention to its terms would have indicated that it was completely irrelevant to the proceedings before the Court.

The applicant asked that the Court should not continue to hear the respondent because of this defect in the terms of its notice of appearance.  When the defect was called to the attention of counsel for the respondent, he agreed that the defect was clear on the face of the document.  He asked the Court for leave within 24 hours to file a notice of appearance in proper form.  That leave is granted by the Court.

The application by Mr Ferreira that the Court should not hear the respondent in the proceedings is rejected. By section 77K(1) of the Judiciary Act 1903 (Cth) it is provided:

No proceedings in the High Court are invalidated by a formal defect or an irregularity unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

It is the opinion of the Court that any defect or irregularity in the form of the notice of appearance filed on behalf of the respondent is not such as to cause any injustice.  There is no necessity to remedy that defect except by the order which we have already made granting the respondent leave to file a corrected notice of appearance. 

The point raised by Mr Ferreira at the outset of the proceedings, at the cost of the time that was available to him for the presentation of his substantive application to the Court, bears comparison with objections which he raised in the Court of Appeal of New South Wales concerning the alleged failure of Justice James, at first instance, to act in respect of the respondent under Part 55 of the Rules of the Supreme Court. 

This matter is dealt with by the Court of Appeal, in paragraphs 21 and following in the reasons of Justice Hodgson.  As in that instance, we have concluded that any defect in compliance with the Rules of Court has caused no prejudice to the applicant.  It is a matter irrelevant to the substance of the proceedings.  The most charitable view that I can take of the applicant’s complaint is that because Mr Ferreira is not here with the benefit of legal advice he cannot see the difference between relevancy and irrelevancy.  The matter which he has raised is irrelevant.  It is rejected.

Application for special leave

As a consequence of the foregoing, the Court did not have the benefit of the applicant’s oral argument on the substance of his application.   Nevertheless, the Court had the written submissions of the applicant and of the respondent.  It had carefully considered those before the proceedings began.

The application arises out of a claim for damages for personal injury suffered by Mr Ferreira.  His accident, in the course of work for the respondent, occurred in July 1997.  He was injured when a slab of marble being lifted fell and broke into pieces, causing injury.  He claimed and was paid workers’ compensation payments.  He then sued for damages for negligence at common law.  The respondent ultimately conceded its liability.  The case proceeded in the Supreme Court of New South Wales as one involving the assessment of damages.  Damages were assessed by the trial judge, Justice James, at $433,511.  After workers’ compensation payments were deducted, this left a judgment of $316,107.26.

An appeal to the Court of Appeal of New South Wales by Mr Ferreira led to a minor adjustment in the judgment sum by the addition of $6,795.84.  In careful reasoning, covering many detailed submissions, Justice Hodgson (with whom Justice Santow and Justice Gzell agreed) rejected the other submissions made by Mr Ferreira, or found that they had no impact on the correctness of the primary judge’s assessment.

No issue of general principle is raised by this application.  There is no point of law or conflict of legal authority.  Nor do we see any evidence of such injustice as would invite the intervention of this Court.  The issues presented by this application for special leave are essentially factual and particular to the applicant’s case.

Special leave is refused.  The applicant must pay the respondent’s costs.

AT 3.40 PM THE MATTER WAS CONCLUDED